USA v. John Doe

Filing

FILED OPINION (MORGAN B. CHRISTEN, PAUL J. WATFORD and JAMES ALAN SOTO) REVERSED AND REMANDED. Judge: MBC Authoring. FILED AND ENTERED JUDGMENT. [10577185]

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 1 of 497

ADVISORY COMMITTEE
ON
CRIMINAL RULES
Missoula, MT
September 19, 2016
d on

nD

. Joh

cited

Av
in US

o.
oe, N

15-5

025

hive
9 arc

017
r 8, 2

Se

be
ptem

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 2 of 497

d on

nD

. Joh

cited

Av
in US

o.
oe, N

15-5

025

hive
9 arc

017
r 8, 2

Se

be
ptem

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 3 of 497

TABLE OF CONTENTS

MEETING AGENDA .................................................................................................................... 7
TAB 1

PRELIMINARY MATTERS
A.

ACTION ITEM: Approval of Minutes
Draft Minutes of the April 18, 2016 Meeting of the Advisory
Committee on Criminal Rules ..........................................................21

B.
TAB 2

Information Item: Draft Minutes of the June 6, 2016 Meeting
of the Committee on Rules of Practice and Procedure ...................47

PROPOSED AMENDMENTS ADOPTED BY THE SUPREME COURT AND
TRANSMITTED TO CONGRESS
A.
B.

2017
Rule 45. Computing and Extending Time .......................................87
er 8,

B.

Rule 45. Computing and Extending Time ....................................101

C.
TAB 4

Rule 41. Search and Seizure ..............................................................79

C.

TAB 3

Rule 4. Arrest Warrant or Summons on a Complaint ...................67

Rule 49. Serving and Filing Papers ...............................................105

b
ptem
n Se
oSTANDING COMMITTEE
PROPOSED AMENDMENTS APPROVED BY iTHE
ved
arch
259
FOR PUBLICATION
-50
o. 15
oe, N
D
A.
Rule 12.4.hn
. Jo Disclosure Statement ......................................................95
SA v
in U
cited

RULE 5 OF THE RULES GOVERNING SECTION 2255 PROCEEDINGS
SUBCOMMITTEE REPORT
A.

Reporters’ Memorandum (September 1, 2016) ............................123

B.

Suggestion 15-CR-F (Hon. Richard C. Wesley) ............................143

C.

Administrative Office Survey .........................................................147
C.1
C.2

Survey of District Courts.....................................................153

C.3

September 19, 2016

Memorandum Regarding Survey of District Courts
(August 4, 2016) ....................................................................149

Survey Responses from Magistrate Judges and
Pro Se Law Clerks ...............................................................169

Page 3 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 4 of 497

TAB 5

RULE 16 SUBCOMMITTEE REPORT
A.

Reporters’ Memorandum (August 31, 2016).................................183

B.

Suggestion 16-CR-B (New York Council of Defense Lawyers
and National Association of Criminal Defense Lawyers) .............187

C.

Working Drafts of a Possible New Rule 16.1.................................195
C.1 ......................................................................................................199
C.2 ......................................................................................................203
C.3 ......................................................................................................207

TAB 6

COOPERATOR SUBCOMMITTEE REPORT
A.

Reporters’ Memorandum (September 1, 2016) ............................213

B.

Reporters’ Memorandum Regarding First Amendment Right
of Access and CACM Guidance on Cooperator Safety
(July 21, 2016) (revised) ...................................................................217

C.

er 8
CACM Interim Guidance for Cooperator tInformation
emb
Sep
on
(June 30, 2016) ..................................................................................243
ived

7
, 201

rch

59 a

D.
E.

cited

502
. 15-

Memorandum e, No Margaret S. Williams, Federal Judicial
from
Do
ohn 18, 2016) .....................................................................255
J
Center. (May
Av

in US

Memorandum from Margaret S. Williams, Federal Judicial
Center (July 7, 2016) ........................................................................269

F.

Chart of Local Rules and Standing Orders Regarding Sealing
of Court Documents .........................................................................279

G.

Memorandum from the Department of Justice
(June 27, 2016) ..................................................................................293

H.

Memorandum from the Department of Justice
(May 31, 2016) ..................................................................................299

I.

Memorandum from the Department of Justice
(July 12, 2016)...................................................................................309

September 19, 2016

Page 4 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 5 of 497

TAB 7

NEW SUGGESTION: RULE 11(a)(2)
A.

Reporters’ Memorandum (August 21, 2016).................................319

B.

Suggestion 16-CR-C (Hon. Susan P. Graber) ...............................323
United States v. Lustig, No. 14-50549, 2016 WL 4056065, at *1
(9th Cir. July 29, 2016) ....................................................................325

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 5 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 6 of 497

THIS PAGE INTENTIONALLY BLANK

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 6 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 7 of 497

AGENDA
Meeting of the Advisory Committee on Criminal Rules
September 19, 2016
Missoula, MT
I.

Preliminary Matters
A. ACTION ITEM: Approve Minutes of the April 18, 2016 Meeting of the
Advisory Committee on Criminal Rules
B. Report on the June 6, 2016 Meeting of the Committee on Rules of Practice
and Procedure

II.

Report on Proposed Amendments to the Criminal Rules Adopted by the
Supreme Court and Transmitted to Congress
A. Rule 4 (service on organizational defendant)
B. Rule 41 (venue for warrant application)
C. Rule 45 (computing time; conforming amendment)

III.

017
r 8, 2
mbe Approved
Report on Proposed Amendments to the CriminalpRules
e te
on S
ved
Standing Committee for Publication archi
9
5025
A. Rule 12.4 (governmentodisclosure of organizational victims)
. 15,N
Doe
B. Rule 49 (filinghand service)
o n
v. J
USA
C. iRule 45 (conforming amendment)
ed in
ct

by the

IV.

Rule 5 Subcommittee Report
A. Reporters’ memo
B. Suggestion 15-CR-F
C. Administrative Office Survey
i. Memo from Julie Wilson and Bridget Healy
ii. Spreadsheets accompanying Wilson and Healy memo
iii. Survey responses from Magistrate Judges and Pro Se Law Clerks

V.

Rule 16 Subcommittee Report
A. Reporters’ memo
B. Suggestion 15-CR-B
C. Working drafts of a possible new Rule 16.1

September 19, 2016

Page 7 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 8 of 497

VI.

Cooperator Subcommittee Report
A. Reporters’ memo (September 1, 2016)
B. Reporters’ memo regarding First Amendment right of access and CACM
guidance on cooperator safety (July 21, 2016) (revised)
C. CACM interim guidance for cooperator information (June 30, 2016)
D. FJC memo (May 18, 2016)
E. FJC memo (July 7, 2016)
F. Chart of local rules and standing orders
G. DOJ memo (June 27, 2016)
H. DOJ memo (May 31, 2016)
I.
DOJ memo (July 12, 2016)

VII.

New Criminal Rules Suggestion: Rule 11(a)(2)
A. Reporters’ memo
B. Suggestion 16-CR-C and United States v. Lustig, No. 14-50549, 2016 WL
4056065, at *1 (9th Cir. July 29, 2016)

VIII.

Report of the Administrative Office
2017
A. Designation of times and places for future meetingsber 8,
m
epte
on S
Spring meeting: April 28, 2017,eWashington, D.C.
v d
rchi
59 a
B. Legislative update
-502
o. 15
e, N
C. Committee procedures
n Do
oh
in
cited

September 19, 2016

USA

v. J

Page 8 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 9 of 497

ADVISORY COMMITTEE ON CRIMINAL RULES
Chair, Advisory Committee on Criminal Rules

Honorable Donald W. Molloy
United States District Court
Russell E. Smith Federal Building
201 East Broadway Street, Room 360
Missoula, MT 59802

Reporter, Advisory Committee on Criminal
Rules

Professor Sara Sun Beale
Charles L. B. Lowndes Professor
Duke Law School
210 Science Drive
Durham, NC 27708-0360

Associate Reporter, Advisory Committee
on Criminal Rules

Professor Nancy J. King
Vanderbilt University Law School
131 21st Avenue South, Room 248
Nashville, TN 37203-1181

Members, Advisory Committee on Criminal
Rules

o.

e, N

A v.

US
ed in

Do
John

cit

Carol A. Brook, Esq.
Executive Director
7
Federal Defender Program8, 201
r
mbe of Illinois
for the NorthernpDistrict
e te
on S
ved
55 East iMonroe Street, Suite 2800
rch
59 a
-502Chicago, IL 60603
15
Honorable Leslie R. Caldwell
Assistant Attorney General
Criminal Division
United States Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, DC 20530-0001
Honorable James C. Dever III
United States District Court
Terry Sanford Federal Building
310 New Bern Avenue, Room 716
Raleigh, NC 27601-1418
Honorable Gary Feinerman
United States District Court
Everett McKinley Dirksen
United States Courthouse
219 South Dearborn Street, Room 2156
Chicago, IL 60604
Mark Filip, Esq.
Kirkland & Ellis LLP
300 North LaSalle
Chicago, IL 60654

Effective: October 1, 2015
Advisory Committee on Criminal Rules
Revised: October 16, 2015
September 19, 2016

Page 1
Page 9 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 10 of 497

Members, Advisory Committee on Criminal
Rules (cont’d)

Honorable David E. Gilbertson
Supreme Court of South Dakota
500 E. Capitol
Pierre, SD 57501
Honorable Denise Page Hood
United States District Court
Theodore Levin United States Courthouse
231 West Lafayette Boulevard, Room 251
Detroit, MI 48226
Honorable Lewis A. Kaplan
United States District Court
Daniel Patrick Moynihan
United States Courthouse
500 Pearl Street, Room 2240
New York, NY 10007-1312
Honorable Terence Peter Kemp
United States District Court
Joseph P. Kinneary
United States Courthouse
85 Marconi Boulevard, Room0172
17
r 8, 2
Columbus, OH 43215-2835
mbe
pte
d on

hive
9 arc

nD

. Joh

cited

Av
in US

o.
oe, N

Se

5
02Professor Orin S. Kerr
15-5 The George Washington University Law School

2000 H Street, N.W.
Washington, DC 20052
Honorable Raymond M. Kethledge
United States Court of Appeals
Federal Building
200 East Liberty Street, Suite 224
Ann Arbor, MI 48104
John S. Siffert, Esq.
Lankler, Siffert & Wohl LLP
500 Fifth Avenue, 33rd Floor
New York, NY 10110

Clerk of Court Representative,
Advisory Committee on Criminal Rules

Effective: October 1, 2015
Advisory Committee on Criminal Rules
Revised: October 16, 2015
September 19, 2016

James N. Hatten
Clerk
United States District Court
Richard B. Russell Federal Building
and United States Courthouse
75 Spring Street, S. W., Room 2217
Atlanta, GA 30303-3309

Page 2
Page 10 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 11 of 497

Secretary, Standing Committee
and Rules Committee Officer

Rebecca A. Womeldorf
Secretary, Committee on Rules of Practice &
Procedure and Rules Committee Officer
Thurgood Marshall Federal Judiciary Building
One Columbus Circle, N.E., Room 7-240
Washington, DC 20544
Phone [phone]
Fax
202-502-1755
[e-mail]

d on

cited

Effective: October 1, 2015
Advisory Committee on Criminal Rules
Revised: October 16, 2015
September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 3
Page 11 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 12 of 497

LIAISON MEMBERS
Liaison for the Advisory Committee
on Appellate Rules

Gregory G. Garre, Esq.

(Standing)

Liaison for the Advisory Committee
on Bankruptcy Rules

Roy T. Englert, Jr., Esq.

(Standing)

Liaison for the Advisory Committee
on Civil Rules

Judge Arthur I. Harris

(Bankruptcy)

Liaison for the Advisory Committee
on Civil Rules

Judge Neil M. Gorsuch

(Standing)

Liaison for the Advisory Committee
on Criminal Rules

Judge Amy J. St. Eve

(Standing)

Liaison for the Advisory Committee
on Evidence Rules

Judge James C. Dever III

(Criminal)

Liaison for the Advisory Committee
on Evidence Rules

Judge Solomon Oliver, Jr.

(Civil)

Liaison for the Advisory Committee
on Evidence Rules
cited

A

in US

hn
v. Jo

Effective: October 1, 2015
Liaison Members
Revised: November 30, 2015
September 19, 2016

mb

epte

nS
ed o

2017
er 8,

iv
JudgecRichard C. Wesley
ar h
59

502
. 15-

(Standing)

, No

Doe

Page 1
Page 12 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 13 of 497

ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS

Rebecca A. Womeldorf
Secretary, Committee on Rules of Practice &
Procedure and Rules Committee Officer
Thurgood Marshall Federal Judiciary Building
One Columbus Circle, N.E., Room 7-240
Washington, DC 20544
Phone [phone]
Fax
202-502-1755
[e-mail]
Julie Wilson
Attorney Advisor
Thurgood Marshall Federal Judiciary Building
One Columbus Circle, N.E., Room 7-240
Washington, DC 20544
Phone [phone]
Fax [phone]
[e-mail]
7

01
Scott Myers
r 8, 2
mbe
Attorney Advisor (Bankruptcy)
pte
n Se
ved
Thurgood Marshall Federal Judiciary Building o
i
arch
One Columbus Circle, N.E., 15-50259
Room 4-250
.
Washington, DC 20544 No
e,
n Do
. Joh
Phone [phone]
SA v
n U202-502-1755
i
ited
cFax
[e-mail]

Bridget M. Healy
Attorney Advisor
Thurgood Marshall Federal Judiciary Building
One Columbus Circle, N.E., Room 4-273
Washington, DC 20544
Phone [phone]
Fax
202-502-1755
[e-mail]
Shelly Cox
Administrative Specialist
Thurgood Marshall Federal Judiciary Building
One Columbus Circle, N.E., Room 7-240
Washington, DC 20544
Phone [phone]
Fax
202-502-1755
[e-mail]

Effective: October 1, 2015
Administrative Office of the U.S. Courts
Revised: October 16, 2015
September 19, 2016

Page 1
Page 13 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 14 of 497

Frances F. Skillman
Paralegal Specialist
Thurgood Marshall Federal Judiciary Building
One Columbus Circle, N.E., Room 7-240
Washington, DC 20544
Phone [phone]
Fax
202-502-1755
[e-mail]

d on

cited

Effective: October 1, 2015
Administrative Office of the U.S. Courts
Revised: October 16, 2015
September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 2
Page 14 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 15 of 497

FEDERAL JUDICIAL CENTER
Tim Reagan
(Rules of Practice & Procedure)
Senior Research Associate
Federal Judicial Center
Thurgood Marshall Federal
Judiciary Building
One Columbus Circle, N.E., Room 6-436
Washington, DC 20002
Phone [phone]
Fax
202-502-4199

Marie Leary
(Appellate Rules Committee)
Research Associate
Research Division
Thurgood Marshall Federal Judiciary Building
One Columbus Circle, N.E.
Washington, DC 20002-8003
Phone [phone]
Fax
202-502-4199
[e-mail]

Molly T. Johnson
(Bankruptcy Rules Committee)
Senior Research Associate
Research Division
Thurgood Marshall Federal Judiciary Building
One Columbus Circle, N.E.
Washington, DC 20002-8003
Phone [phone]
[e-mail]
o. 1

e, N

Do
John

Emery G. Lee
(Civil Rules Committee)
Senior Research Associate
Research Division
Thurgood Marshall Federal Judiciary Building
One Columbus Circle, N.E.
Washington, DC 20002-80037
1
8, 20
Phone [phone] er
mb
e
Sept
Fax chived on
202-502-4199
r
59 a
[e-mail]
5-50

Laural L. Hooper
v.
USA
(Criminal Rules Committee)
ed in
cit
Senior Research Associate
Research Division
Thurgood Marshall Federal Judiciary Building
One Columbus Circle, N.E.
Washington, DC 20002-8003
Phone [phone]
Fax
202-502-4199
[e-mail]

Effective: October 1, 2015
Federal Judicial Center
Revised: October 16, 2015
September 19, 2016

Timothy T. Lau
(Evidence Rules Committee)
Research Associate
Research Division
Thurgood Marshall Federal Judiciary Building
One Columbus Circle, N.E.
Washington, DC 20002-8003
Phone [phone]
Fax
202-502-4199
[e-mail]

Page 1
Page 15 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 16 of 497

THIS PAGE INTENTIONALLY BLANK

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 16 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 17 of 497

TAB 1
d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 17 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 18 of 497

THIS PAGE INTENTIONALLY BLANK

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 18 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 19 of 497

TAB 1A
d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 19 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 20 of 497

THIS PAGE INTENTIONALLY BLANK

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 20 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 21 of 497

ADVISORY COMMITTEE ON CRIMINAL
RULES DRAFT MINUTES
April 18, 2016, Washington, D.C.

I.

Attendance and Preliminary Matters

The Criminal Rules Advisory Committee (“Committee”) met in Washington, D.C., on
April 18, 2016. The following persons were in attendance:
Judge Donald W. Molloy, Chair
Carol A. Brook, Esq.
Judge James C. Dever
Judge Gary S. Feinerman
Mark Filip, Esq.
Chief Justice David E. Gilbertson
Judge Denise Page Hood
Judge Lewis A. Kaplan
017
Judge Terence Peter Kemp
r 8, 2
mbe
Professor Orin S. Kerr
epte
on S
ved
Judge Raymond M. Kethledge
rchi
59 a
-502
Michelle Morales, Esq. 1
15
No.
John S. Siffert, Esq. ohn Doe,
v. J
James N. Hatten,SClerk of Court Liaison
U A
ed in
ct
Professor iSara Sun Beale, Reporter
Professor Nancy J. King, Reporter
Professor Daniel R. Coquillette, Standing Committee Reporter
Judge Amy J. St. Eve, Standing Committee Liaison
And the following persons were present to support the Committee:
Rebecca A. Womeldorf, Rules Committee Officer and Secretary to the Committee on
Practice and Procedure
Bridget M. Healy, Rules Office Attorney
Julie Wilson, Rules Office Attorney
Shelly Cox, Rules Committee Support Office
Laural L. Hooper, Federal Judicial Center
Margaret Williams, Federal Judicial Center

1

Ms. Morales was joined at the meeting by Ms. Elizabeth Shapiro.

September 19, 2016

Page 21 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 22 of 497
Draft Minutes
Criminal Rules Meeting
April 2016
Page 2

II.

CHAIR’S REMARKS AND OPENING BUSINESS
A. Chair’s Remarks

Judge Molloy opened the meeting and thanked the reporters for their work in preparing
the agenda book. He then asked members to introduce themselves, and he welcomed
observers, including Peter Goldberger of the National Association of Criminal Defense
Lawyers and Catherine M. Recker of the American College of Trial Lawyers. Judge Molloy
also thanked all of the staff members who made the arrangements for the meeting and the
hearings.
B. Minutes of September 2015 Meeting
A motion to approve the minutes having been moved and seconded, the Committee
unanimously approved the September 2015 meeting minutes by voice vote.
C. Status of Criminal Rules: Report of the Rules Committee Support Office

017
r 8, 2
mbe were submitted to the
The Committee’s proposed amendments to Rules 4, Septe 45
41, and
on
ved
Supreme Court, which has until May 1 to transmit them ito Congress. Ms. Womeldorf expressed
h
9 arc
the hope that the amendments would soon.be -sent5to Congress.2 Judge Molloy expressed his
502
o 15
e, N
appreciation for the members’ hardDwork on these amendments.
n o
Joh
A v.
n US
i
cited
III.
CRIMINAL RULES ACTIONS

A.

Proposed Amendment to Rule 49

Judge Feinerman, chair of the Rule 49 Subcommittee, acknowledged the reporters’
assistance and thanked the subcommittee members for their time, thought, and effort. He then
presented the subcommittee’s recommended amendment and committee note.
Judge Feinerman began by providing an overview of the subcommittee’s work, which grew
out of a Standing Committee initiative to adapt the rules of procedure to the modernization of the
courts’ electronic filing system. The subcommittee’s work was guided by two imperatives, which
were sometimes in tension: (1) the Advisory Committee’s direction to draft a stand-alone rule on
filing and service adapted to criminal litigation, and (2) the Standing Committee’s direction to depart
from the language of Civil Rule 5 only when justified by significant difference between civil and
criminal practice. To achieve these objectives, the subcommittee worked closely with representatives
of the Civil Rules Committee, who participated in the subcommittee’s teleconferences and were in
frequent communication with the reporters. Finally, the subcommittee received the advice of the style
consultants.
2

On April 28, 2016, the Supreme Court transmitted the amendments to Congress.

September 19, 2016

Page 22 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 23 of 497
Draft Minutes
Criminal Rules Meeting
April 2016
Page 3

Judge Feinerman then provided a section-by-section analysis of the proposed amendment to
Rule 49, inviting questions and comments from members as he presented each section.
49(a)(1). Judge Feinerman noted that subsection (a) (1) preserves much of the language
from the current rule. The language regarding what must be served is retained from existing Rule
49(a): “any written motion (other than one to be heard ex parte), written notice, designation of the
record on appeal, or similar paper.” Parties and courts know what the existing language means, no
difficulties have arisen from the current language of the rule, and tinkering with it without a
compelling reason could do more harm than good.
The subcommittee proposes, however, a change in the language governing who must serve,
in order to reverse an unintended change that occurred when the rule was restyled from the passive
to the active voice in 2002. That change inadvertently carved out nonparties. The subcommittee
recommends a return to the passive construction used prior to 2002, so nonparties (as well as parties)
will be required to serve the items described in (a).
Professor King noted that there had been a suggestion that the committee note might include
a statement that the amendment did not modify or expand the scope of the rule or change the
017
practice regarding concerning papers, such as discovery, that are disclosed but ,not necessarily filed
r8 2
mbe
epte
or served. Concern had also been expressed about making clear that probation and pretrial services
on S
ved
i
reports were not covered by the amended rule. 0259 arch

-5
o. 15
oe, N
Professor Beale added that n D
committee notes cannot change the meaning of the rule, and
. Joh
SA v much explanation should be provided. The proposed committee note
there is always a question how
in U
cited

does not include language stating that the scope of the papers that must be served has not changed,
or language stating that it does not apply to probation and pretrial services reports. Beale also noted
that the change to the passive voice in subsection (a) was an example of a point on which the style
consultants had yielded to the subcommittee because the passive voice was necessary for substantive
reasons. Indeed, the discovery of —and opportunity to correct—the unintended change wrought by
restyling was an unanticipated benefit of the current project.
Finally, Judge Feinerman noted that the rule explicitly covers only service “on a party.”
Although nothing in the existing (or pre-2002) Rule 49 addresses service on nonparties, this does not
seem to have caused any problems. The parties generally use common sense in determining when
to serve nonparties, and the subcommittee thought it best not to try, at this time, to craft a rule that
would apply in all of the situations when a nonparty may file in a criminal case, perhaps causing
unintended consequences.
Rule 49(a)(2). Judge Feinerman noted Rule 49(a)(2) was unchanged except for a minor
matter of style.
Rule 49(a)(3). Judge Feinerman then moved on the Rule 49(a)(3), noting it was a completely
new provision that distinguishes between electronic service and service by other means. The
subcommittee felt it was very important to put electronic service, which is the dominant mode of

September 19, 2016

Page 23 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 24 of 497
Draft Minutes
Criminal Rules Meeting
April 2016
Page 4

service, first. Professor King noted that the both the Civil and Criminal amendments now use the
language referring to the “court’s electronic filing system.”
Professor King then drew attention to a difference between the Civil and Criminal proposals,
which use different phrasing to describe a situation in which electronic service is ineffective. The
Civil proposal says electronic service is ineffective if the server learns that “it did not reach the person
to be served.” In contrast, the subcommittee’s proposal provides service is ineffective if the server
learns that the person to be served did not receive “the notice of electronic filing” (NEF). The
subcommittee thought this language was more accurate.3
Members were reminded that the current rule (as well as the proposed civil rule) now treats
electronic service differently than other forms of service (such as mail or delivery to a person’s office
or dwelling). Because of concerns about the reliability of electronic service, Civil Rule 5 (which
governs in criminal cases as well) provides that service is not effective if the serving party knows that
the electronic service did not reach the party to be served. In contrast, all other forms of service are
effective if the serving party takes the specified action (such as mailing), even if for some reason the
party to be served does not receive service. The civil and criminal proposals retain this favorable
treatment for electronic service, which focuses on the serving party’s knowledge 2017electronic
that
r 8,
mbe
service was not effective.
epte
S
d on
chive
Discussion turned to the appropriate scope of 59 aexception. Mr. Hatten explained that the
the r
502
. 15clerk’s office does not receive bounce backNo
, messages, such as “out of office” notices. The clerks do,
Doe
ohn
however, receive a notice if the .CM/ECF system was unable to deliver the email, which occurs, for
v J
USA
example, when thecrecipient’s mailbox is full. In those cases, the clerk’s office will follow up with
ed in
it

the recipient of service. As a member noted, it would be a very rare instance in which the serving
party learns that CM/ECF service was not effective. A lawyer member wondered if the proposed rule
imposed too great a burden on defense lawyers, including those in small firms, who may have no one
to monitor their emails. Mr. Hatten responded that in order to use the CM/ECF system lawyers had to
agree to receive electronic service, and thus had to have in place a system to monitor their emails.
But a party may learn of and have access to papers that have been served even if the party
never received the NEF. For example, a lawyer who did not receive a NEF (because, for example, of
a changed email address that was not updated) might nonetheless learn of the document or order and
access it from the docket. This would not constitute service under the subcommittee’s proposal,
which focuses exclusively on the server’s knowledge of whether the party to be served received the
NEF. (On this point, the phrasing of the Civil Rule, which uses “it,” might allow the serving party to
argue that the party to be served had received “it.”)
The Committee concluded that if the party to be served has indeed received the document by
some other means—whether by mail, email, or simply reading the docket—service should be deemed
effective. A member moved to amend proposed Rule 49(a)(3)(A) to provide “service . . . is not
3

This difference was later dropped as part of the effort to eliminate all unnecessary differences between the
Criminal and Civil Rules. See note 4, infra.

September 19, 2016

Page 24 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 25 of 497
Draft Minutes
Criminal Rules Meeting
April 2016
Page 5

effective if the serving party learns that neither the notice of electronic filing nor the paper reached the
person to be served.” The motion passed.4 One member noted, however, that it might be difficult to
determine the effective date of service if it became effective by some means other than receipt of the
NEF, such as the party to be served reviewing the docket.
Professor Beale reminded the Committee of the importance of the use of uniform language in
the Civil and Criminal Rules on filing and service, and she stated that the reporters would convey the
Committee’s view on this issue to the representatives of the Civil Rules Committee.
Rule 49(a)(4). Judge Feinerman noted that these provisions were drawn, verbatim, from
Civil Rule 5. In general, the subcommittee recognized that it would not be helpful to tinker with the
language because the Civil Rules Committee was satisfied with the language. For that reason, the
subcommittee did not propose a change in the bracketed language on lines 35-36 unless the Civil
Rules Committee would support a parallel amendment to Rule 5.
Rule 49(b)(1). Judge Feinerman noted that the major change from the current rule on filing
was to restore the passive construction. He asked the reporters to draw the Committee’s attention to
key issues. Professor Beale noted that the subcommittee considered, but did not recommend, adding
17
the qualifier “under this rule” between “served” and “together.” She noted er 8, 20 other rules that
there are
mb
te
provide for service by specific means, such as the Committee’s on Sep amendment to Rule 4
pending
ved
rchi
governing service on foreign corporations. The Subcommittee concluded that the phrase “under this
59 a
-502
rule” was not necessary. Where other rules o. 15 specific means of service for certain documents
, N identify
Doe
ohn general provisions of Rule 49 are not intended to override
or orders, it seems clear that theJmore
v.
USA
them. Moreover, cited in the phrase “under this Rule” could engender confusion. The phrase is not
adding
included in the current rule, and its addition might suggest, misleadingly, that Rule 49 does not apply
to a variety of items that other rules require to be served. Professor King noted that the rules
specifying particular forms of service were Rule 4 (summons on corporations), Rule 41 (warrants),
Rule 46 (sureties), and Rule 58 (appearances). Professor Beale explained that these rules will
continue to coexist with Rule 49, which under (a)(1) governs service and filing of “any written
motion . . . , written notice, designation of the record on appeal, or similar paper.”
One other point that the subcommittee considered was whether to delete the requirement
4

After the meeting, the reporters and chair consulted with representatives of the other committees working
on parallel drafts concerning electronic filing and service. There was a consensus that time did not permit
consideration of this proposal by other committees before submission to the Standing Committee. In light of the
importance of consistency in the rules of electronic filing and service, the representatives of the Criminal Rules
Committee agreed to delete the new language from the draft of Rule 49 submitted to the Standing Committee. As
the representatives of the other committees noted, the proposal would be a change in current law. Before such a
change is recommended, the committees should have an opportunity to consider the policy implications, and
whether this approach, if adopted, should be applied to other forms of service. The committees can, however, take
the proposal up again at a later date. As part of the later effort to reconcile differences between the various sets of
rules, Judges Molloy and Feinerman and the Reporters also reviewed and approved a modification to Rule 49 to
retain the language of the Civil Rule, that is, stating that service is ineffective if the serving party learns that “it” was
not received.

September 19, 2016

Page 25 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 26 of 497
Draft Minutes
Criminal Rules Meeting
April 2016
Page 6

that filing of any paper required to be served must occur “within a reasonable time after service.”
The subcommittee considered deleting this restriction. Members were not aware of any problem
with untimely filing in criminal cases, but decided to retain this provision to parallel Civil Rule 5.
One question that had been left open, reflected in brackets on line 40, was whether the rule
should refer at this point to “any person” or “any party.” Professor King noted that the Civil Rules
Committee had now approved a draft amendment using “any person,” which would be adopted as
well in the Criminal amendment.
Rule 49(b)(2). Judge Feinerman noted that here, as in (a), the subcommittee proposed
places electronic filing first in (b) for the same reasons it placed electronic service first in Rule 49(a).
Also, the Subcommittee reasoned, the subsection including the definition what it means to “file
electronically” should precede the use of that term. (In contrast, the civil proposal retains the current
order of Rule 5’s subdivisions, which places nonelectronic filing first.) Professor King stated that
there was still a minor styling issue to be resolved (“by using” or some alternative such as “by use
of”), which would be resolved in favor of uniformity after consultation with the style consultants and
the other reporters and chairs. Professor Beale noted that the Civil Rules Committee just completed
its meeting three days earlier. She reminded the Committee that because of the 2017
emphasis on
r 8,
mbe
uniform language among the parallel proposed amendments, it would te essential for Judges Molloy
be
Sep
and Feinerman (with the reporters) to have leeway to agreeived on
to necessary stylistic changes as the
rch
59 a
proposals advance to the Standing Committee. 5Judge Feinerman agreed, though he observed that if
-502
o. 1
e,
he and Judge Molloy were askedoto makeN
n Do significant changes in the proposal approved by the
J h
A v.
Committee, they would consider seeking approval from the Committee.
n US
i
cited

Professor Beale also drew attention to the proposed provision regarding a filer’s user name
and password serving as an attorney’s signature, which was closely related to the signature provision
in (b)(4). In September, the Committee did not approve provisions on a signature block, which were
phrased differently than the current proposal. The new proposal imports the language of Civil Rule
11(a). The subcommittee found it unnecessary to determine whether Civil Rule 11’s signature
provisions are presently included in Rule 49(d)’s directive to file “in a manner provided for in a civil
action.” If this requirement is not currently imported by Rule 49(d), the subcommittee thought it
would be a desirable requirement as a matter of policy. Accordingly, the subcommittee decided to
adopt the language of Rule 11 verbatim. A lawyer member questioned whether it was appropriate to
incorporate the language of Civil Rule 11, which requires the attorney’s signature in order to impose
restrictions on counsel to certify the accuracy of the pleadings. He stressed that the role of defense
counsel in civil and criminal cases is quite different: in criminal cases, the defense does not make
representations but rather puts the government to its proof. He expressed concern that the signature
requirement signaled an unfortunate drift towards the civil understanding of the lawyer’s role.
Professor King responded that the portions of Rule 11 that are relevant to this member’s concern
about good faith representations to the court are in Rule 11(b). The subcommittee’s proposal,
however, imports only the language of Rule 11(a). By importing only this language, the proposal
does not bring in any requirements concerning counsel’s representations.

September 19, 2016

Page 26 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 27 of 497
Draft Minutes
Criminal Rules Meeting
April 2016
Page 7

Judge Feinerman also drew attention to one other aspect of proposed subdivision (b)(2)(A):
the phrase “written or in writing.” This language is now in Rule 49(e). The subcommittee favored
retaining this language, rather than paring it down, because it captures the variety of phrases now
used in the Rules of Criminal Procedure.
Rule 49(b)(3)(A) and (B). Noting that this provision creates a presumption that represented
parties must file electronically, but that non represented parties must file by non-electronic means,
Judge Feinerman invited the reporters to comment. Professor King reminded the Committee that
the new presumption for electronic filing by represented parties was a central goal of the amendment
process. It was the proper presumption for unrepresented parties that had originally divided the Civil
and Criminal Rules Committees. This Committee took a strong stance that unrepresented parties in
criminal cases should not file electronically unless specifically allowed by local rule or court order.
The subcommittee’s proposal implements that policy choice.
But even with a stand-alone amendment to Rule 49, the Civil Rules are still of concern to the
Criminal Rule Committee because of their effect in habeas cases. Professor King noted that Rule 12
of the 2254 Rules, which govern state habeas cases, incorporates the Federal Rules of Civil Procedure
unless they are inconsistent with the habeas rules. And the Rules Governing 2254017 2255 actions
and
r 8, 2
mbe
are the responsibility of the Criminal Rules Committee.
epte
S
d on
chive provides that unrepresented parties
The proposal just adopted by the Civil Rules2Committee
9 ar
50 5
. 15-electronically by local rules or orders which permit
in civil cases may be permitted or required Nofile
, to
Doe
ohn Committee wanted to provide explicit authorization for
reasonable exceptions. The CivilJRules
v.
USA
existing programs cited in districts that now require inmates to file 2254 pleadings electronically.
in some

The clerk of court liaison to the Civil Rules Committee is from a district that now has such a local
rule, which was designed in cooperation with officials at a local prison. In that institution, prisoners
are required to take their 2254 pleadings to the prison library, where the staff members PDF them and
then email them to the court. The same system operates in a neighboring district. Officials in these
courts and participating prisons are very pleased with the program. The proposed Civil amendment
would allow the continuation of such programs. Although the Criminal Rules Committee has no
formal role in the approval of the changes to Rule 5, the reporters requested discussion of the Civil
Rule so that they could share the Committee’s views with their Civil counterparts.
Professor Beale noted that the policy implications of the current Civil proposal are somewhat
different from the issues previously discussed by the Committee. At its prior meetings, the
Committee took a strong stand against a national rule that would override the current local rules in
many districts that do not permit electronic filing by unrepresented criminal defendants. But the
current proposal does not override any local rules. Instead, it permits districts to adopt local rules that
require—with reasonable exceptions—that unrepresented inmates file electronically. She noted that
some districts have large caseloads of inmate filings, and the Civil Rules Committee wants to allow
them the option of requiring unrepresented inmates to file electronically.
The proposed Civil Rule states that a local rule requiring unrepresented civil parties to file

September 19, 2016

Page 27 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 28 of 497
Draft Minutes
Criminal Rules Meeting
April 2016
Page 8

electronically must allow reasonable exceptions. This provision requiring reasonable exceptions was
added at the subcommittee’s request, and it provides some protection against a local rule or order that
would otherwise impose an unreasonable burden on state habeas filers.
Mr. Hatten put the proposed Civil Rule into its historical context. The current CM/ECF
system began as a program in a single district with a heavy caseload of asbestos cases. It was
implemented nationally in waves, allowing changes to be made based on experience. The system
was designed solely for courts and attorney filers, not for lay filers. The current resources are
designed for those filers, and the clerks do not screen filings. From the clerk’s perspective (staffing,
resources, and work measurement), he said, lay filers present very different issues. He expressed
concern that the proposed Civil Rule seemed poised to expand lay filing nationwide without any
redesign of the system or sufficient testing in individual courts.
Professor Beale responded that the Civil Rules proposal allowing local rules requiring
unrepresented parties to file could be seen as the kind of step-by-step process that had worked well for
electronic filing by attorneys and the courts. At present, these are programs developed by individual
districts in conjunction with local correctional officials. They seem to be working well. On the other
hand, the reporters are not sure how these local rules mesh with the current Rules2Governing 2254
017
r 8,
mbe
and 2255 Proceedings, which refer to internal prison filing systems forplegal mail and inmates
e
Se t
depositing papers to be filed showing prepaid postage. rchived on
59 a
-502
. 15aspects of the current local rules regarding electronic
Professor King drew attention toe, No
several
Do
ohn concern to the Civil Rules Committee. The inmates do not
filing by inmates that were of special
v. J
USA
receive individual cited in to the CM/ECF system. Rather, officials in the prison library receive the
access

inmates’ papers, convert them to PDFs, and then submit them to the court electronically. This has
many advantages: it is cheaper and faster than using the mail, and it produces a record of when the
paper was sent and received. We do not know exactly how other aspects of these programs work.
For example, do inmates in these programs receive NEFs?

There was general agreement that these programs would not work everywhere, and electronic
filing by inmates would not be possible in many districts. Justice Gilbertson stated that in South
Dakota no state prisoners have access to electronic filing, and most prisoner filings are hand written.
Requiring inmates to file electronically in his state would shut down inmate filing. At Judge Molloy’s
request, Justice Gilbertson agreed to make enquiries about other states through the National Center for
State Courts.
A member asked who determines whether a local rule permits “reasonable exceptions,” or
what constitutes such a “reasonable exception.” The reporters stated they had not researched this
question, but they pointed out that this phrase is present in current Rule 49(e), as well as its Civil
counterpart, Rule 5(d)(3). No one had noted any special problems in connection with the phrase. It
seems likely that the proposed Civil rule would be given the same interpretation as the current rules.
Concluding the discussion, Judge Feinerman reiterated the importance of the Civil Rules
Committee’s inclusion of the requirement that any local rule requiring unrepresented parties to file

September 19, 2016

Page 28 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 29 of 497
Draft Minutes
Criminal Rules Meeting
April 2016
Page 9

electronically must provide for reasonable exceptions. He expressed the hope that this language
would accommodate due process concerns and prevent the imposition of unreasonable burdens on
inmate filers. He also observed that courts are unlikely to adopt local rules requiring electronic filing
by unrepresented inmates without first consulting with prison authorities to determine what is
feasible.
Rule 49(b)(4). Judge Feinerman then turned to one feature of subsection (b)(4) that had not
previously been discussed: the provision stating that verification of pleadings is not required unless a
statute or rule specifically states otherwise. This provision was drawn from the Civil Rules. Judge
Feinerman noted it might provide a useful reminder for 2255 filers, because the Rules Governing
2255 actions require verification. Professor Beale agreed that it might provide a useful clarification
for filers in 2255 cases. Additionally, because this language is included in the Civil Rules, its
exclusion from Rule 49 might lead to a negative implication. Since the language might have some
value and could do no harm, she concluded that it seemed best to parallel the Civil Rules.
Rule 49(c). Judge Feinerman explained that this provision makes explicit that nonparties
may file and serve in criminal cases. Unlike the other provisions already discussed, he pointed out,
(c) does not distinguish between represented and unrepresented nonparties. All ,nonparties are
017
r8 2
mbereasons for requiring
presumptively required to file by nonelectronic means. He identified epte
several
on S
nonparties to file outside the CM/ECF system. First, the architecture of the CM/ECF system is
ved
rchi
59 a
designed to permit only the government or a defendant to file electronically. Even a registered
-502
o. 15
e N
attorney user cannot file in a criminal case, unless the attorney indicates that he represents either the
n Do
. Joh
government or a defendant.SA v
n U Second, members had informed the Subcommittee that many nonparty
ed i
filers prefer not to cit the CM/ECF system. Finally, victims may file material that should not go into
use
the system and be available to all parties. The rule does allow the court to permit a particular
nonparty to file electronically (with the assistance of the clerk), and it gives districts the option of
adopting local court rules that allow nonparties to file electronically.
Judge Feinerman noted that the proposed rule does not refer to filings by probation or pretrial
services, which are neither parties nor nonparties (“neither fish nor fowl”). Because probation and
pretrial services do file their reports electronically in some districts, he raised the question whether the
committee note should be amended to make it clear they were not covered by Rule 49. Although
there has been no question of the applicability of the current rule to probation and pretrial services, the
addition of (c) now makes the application of the rule to nonparties clear. Members discussed the
practice in their own districts. In some, probation and pretrial services did not use the CM/ECF
system, but in others all of their reports were filed using CM/ECF (though presentence reports and
some other documents were sealed). Professor Beale observed that everyone agreed that when the
court issues an opinion, it is not governed by Rule 49. Since pretrial services and probation are arms
of the court, the Subcommittee thought they were distinguishable from the parties and nonparties
governed by the rule.
A motion was made to add language to the note stating that the rule was not applicable to the
court or its probation and pretrial services divisions, but it was withdrawn after discussion. Professor

September 19, 2016

Page 29 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 30 of 497
Draft Minutes
Criminal Rules Meeting
April 2016
Page 10

Coquillette reminded the Committee of the limited function of committee notes. A member noted
that the Federal Defenders are also, as a matter of organization, a part of the court, but they are of
course subject to Rule 49. Another member stated that he did not see a problem that required any
change. Everyone understands that probation and pretrial services are part of the court and not
covered by the Rule. The member who had made the motion withdrew it.
Rule 49(d). Judge Feinerman then turned to the last subsection of the proposed rule, which
requires the clerk to serve notice of the entry of the court’s order, and allows a party to serve the
notice. He stated that the language in the Subcommittee draft was drawn from Civil Rule 77(d)(1),
and its inclusion was consistent with the general presumption in favor of incorporating the relevant
provisions of the Civil Rules. Professor Beale noted the interaction between the notice provisions and
FRAP 4. FRAP 4(a) governs civil appeals, and 4(b) governs criminal appeals. Although the impact
of the provision allowing a party to give notice would be somewhat different in civil and criminal
cases, she observed that it seemed to have sufficient utility in criminal cases to justify its inclusion.
Under FRAP 4(b), the notice given by a party might be relevant to a defendant’s efforts to establish
excusable neglect or good cause for a late filing. The Subcommittee had no strong feelings about this
provision. Beale stated that in her view, since this provision was in the Civil Rule, might have some
7
benefit in criminal cases, and would do no harm, it was appropriate to includer it., 201
be 8
em
Sept
onamended, for transmission to the
There was a motion to approve the Subcommitteerchived as
draft,
a
259 published for public comment, with the
Standing Committee with the recommendation1that0it be
-5
o. 5
oe, N
provision that Judge Molloy, JudgehFeinerman, and the reporters would need to work with the other
nD
. Jo
SA v
committees, and it might be necessary to make minor changes for consistency with the other
in U
cited

proposed amendments.

The Committee voted unanimously to approve the proposed amendments to Rule 49,
as amended, to transmit them to the Standing Committee, and to recognize the authority of
the Committee chair, Subcommittee chair, and reporters to make minor changes to conform
to the language of parallel proposals from other committees.
Discussion of the committee note was deferred until after the lunch break, to allow the
reporters to determine what revisions would be required in light of the amendment to proposed
Rule 49(a)(3)(A).
Judge Feinerman turned next to the Subcommittee’s proposal to amend Rule 45. He
explained that Rule 45(c) currently refers to several subsections of Civil Rule 5 describing different
means of filing. As part of creating a stand-alone rule on filing and service, the Subcommittee’s
proposal incorporated these forms of service into Rule 49. Accordingly, the Subcommittee proposed
an amendment replacing the cross references to Rule 5 with the appropriate cross references in Rule
49. Ms. Womeldorf and Professor Coquillettee confirmed that because this would be a technical and
conforming amendment, it was not necessary to publish it for public comment. On the other hand,
failure to publish now with the Rule 49 proposal might lead to some confusion and produce
comments suggesting the need for such an amendment. Publication would make it clear that the

September 19, 2016

Page 30 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 31 of 497
Draft Minutes
Criminal Rules Meeting
April 2016
Page 11

Committee was aware that its proposed amendment to Rule 49 would require this technical and
conforming amendment. Under these circumstances, the reporters recommended publication.
The Committee voted unanimously to approve and transmit the proposed amendment to
Rule 45(c) to the Standing Committee with the recommendation that it be published for public
comment.
Judge Kethledge presented the report of the Rule 12.4 Subcommittee. The current rule,
he explained, provides that if an organization is a victim, the government must file a statement
identifying the victim; if the organizational victim is a corporation, the government must file a
statement identifying any parent corporation and any publicly held corporation that owns more
than 10% of the victim corporation’s stock, or stating that there is no such corporation. Prior to
2009, the Code of Judicial Conduct treated any victim entitled to restitution as a party, and the
committee note stated that the purpose of the disclosures required by Rule 12.4 is to assist judges
in determining whether to recuse. In 2009, however, the Code of Judicial Conduct was
amended. It no longer treats any victim who may be entitled to restitution as a party, and it
requires disclosure only when the judge has an interest “that could be substantially affected by
the outcome of the proceedings.”
7
01
r 8, 2

be
ptem

Se
In light of the amendment to the Code of Judicial Conduct, the Department of Justice
d on
chive
asked the Committee to consider amending Rule 259 arto restrict the scope of the government’s
12.4
50
required disclosures. It emphasized the, difficulty of complying with the rule in cases with large
. 15No
Doe
numbers of organizational victimsneach of whom has sustained only a de minimus injury. The
oh
v. J
USA
archetype, he said, twas an antitrust prosecution where many victim corporations have paid a few
ed in
ci
cents more for a common product, such as a software program.

The Subcommittee agreed that the government had presented a persuasive case for
bringing the rule in line with the change in the Code of Judicial Conduct in order to relieve the
government of the burden of disclosure in such de minimus cases.
In drafting the language of its proposed amendment, the Subcommittee responded to
feedback Judge Molloy had received from the Standing Committee. Standing Committee
members stressed the importance of retaining judicial control. If the rule is to be revised, the
court, not the government, should decide whether disclosure was needed in individual cases.
The Subcommittee recommended an amendment relieving the government of the burden
of making the disclosures when it can show “good cause” for that relief. This standard, Judge
Kethledge explained, retains judicial control and allows the court to balance the burden of
disclosure against the risks of non-disclosure. Under a good cause standard, the court makes a
holistic determination, rather than looking solely at the harm to the corporate victim.
The style consultants objected that “good cause” was a vague standard, but Judge
Kethledge stated the Subcommittee strongly disagreed and viewed the matter as one of substance
rather than mere style. Courts have a great deal of experience with the good cause standard,

September 19, 2016

Page 31 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 32 of 497
Draft Minutes
Criminal Rules Meeting
April 2016
Page 12

which is used in many other Federal Rules of Criminal Procedure. In contrast, the standard
suggested by the style consultants—“minor harm”—is not used in any other Federal Rule of
Criminal Procedure, it is not used in the Code of Judicial Conduct, and it would not allow the
court to look at the overall balance of the burden of disclosure against the risks of nondisclosure.
Professor Beale stated that similar language was under consideration by the Appellate
Rules Committee; the reporter for that committee had consulted with the Criminal Rules
reporters and participated in the Subcommittee’s telephone conferences. However, the Appellate
Rules provision concerning disclosures regarding corporate victims was a small part of a larger
project which was not yet ready for presentation to the Standing Committee. She noted that the
current draft under consideration by the Appellate Rules Committee included not only
corporations, but also other “publicly held entities.” Noting that the reporters were not sure
precisely what that phrase would include, she asked if Judge Kethledge or others had a view on
whether similar language should be added to Rule 12.4. Judge Kethledge stated that he had no
strong view. Speaking for the Department of Justice, Ms. Morales stated that the Department
was satisfied with the proposal as it stood, without that phrase.
17

, 20
Judge Kethledge then turned to the proposed amendment to Rule r12.4(b), explaining that
be 8
ptem
it was a modest proposal that had merit but likely would not haveeadvanced on its own. But if
on S
ved
chitime for the disclosures, and to make it
we do amend Rule 12.4, it would be useful to set 25fixed
a 9 ar
50
. 15clear that not only changed, but also new information should be disclosed. In response to a
o
e, N
member’s comment that the ruleshn Do generally state time in multiples of seven, Judge
o now
v. J
Kethledge and the ted in USA took this as a friendly amendment. Although 30 days falls just over
reporters
ci
the line into the longer time periods that do not have to be divisible by seven, it seemed desirable
to revise the time period here to 28 days.

A member also expressed concern with the wording of the Subcommittee’s proposed
amendment to Rule 12.4, because it did not explicitly state that new information must be
disclosed only if it falls within the scope of the disclosures required by the rule. Although that is
implied, lawyers might argue for a broader interpretation. Members suggested various
formulations, and a motion was made to revise (b) to require the government to provide a
supplemental statement “if the party learns of any additional required information or any
required information changes.” The motion also contained the friendly amendment making the
time for filing 28 days after the defendant’s initial appearance. The motion passed unanimously.
Professor Beale reminded the Committee that this language was subject to revision by the style
consultants.
The Committee then unanimously approved the proposed amendment to Rule 12.4, as
amended, for transmission to the Standing Committee with the recommendation that it be
published for public comment.
Discussion then turned to the proposed committee note. Members suggested deleting two
phrases—“in relevant cases” and “the government alleges.” Judge Kethledge agreed that they

September 19, 2016

Page 32 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 33 of 497
Draft Minutes
Criminal Rules Meeting
April 2016
Page 13

were not necessary, and accepted those suggestions on behalf of the Subcommittee. The
proposed committee note was also revised to refer to 28, rather than 30, days.
The Committee voted unanimously to approve the committee note to Rule 12.4, as
amended, for transmittal to the Standing Committee with the recommendation that it be
published for public comment.
Following the lunch break, the reporters presented language amending the committee
note to take account of the change in subsection (a)(3)(B) of the amendment to Rule 49. The
proposed language stated that “(A) provides that electronic service is not effective if the serving
party learns that neither “the notice of electronic filing” nor the paper to be served reached the
person to be served.” 5
The Committee voted unanimously to approve the committee note to Rule 49, as
amended, for transmittal to the Standing Committee with the recommendation that it be
published for public comment.
Judge Dever, chair of the Rule 15 Subcommittee, informed the Committee that the
17
Department of Justice had withdrawn its request for consideration of mbeamendment to address
an r 8, 20
epte
the inconsistency between the text of the rule and the committee note regarding the expenses of
on S
ved
certain depositions requested by the defense. Ms. 59 archi explained that the Department was
Morales
02
15-5
withdrawing its proposal because there ,had. been so few instances in which the rule might create
No
Doe
a problem that it did not seem. possible to show a need for a rules change at this time. However,
ohn
v J
US
the Department intended toAreturn to the Committee if it confronted a problem in a significant
ed in
cit
number of cases.
Introducing the next item on the agenda, Judge Molloy explained that, with the aid of a
study prepared by the Federal Judicial Center (FJC), the Committee on Court Administration and
Management (CACM) had studied the problem of threats and harm to cooperating defendants,
and had endorsed recommendations that would necessitate changes in the Federal Rules of
Criminal Procedure. After discussion at the January 2016 meeting of the Standing Committee,
the matter was referred to the Criminal Rules Committee. Judge Molloy then appointed a
subcommittee, chaired by Judge Lewis Kaplan, to consider the FJC study and CACM’s
recommendations.
Judge Kaplan reported on the Subcommittee’s actions and sought input from members
who are not on the Subcommittee. The starting point for the Subcommittee is that CACM
concluded, based on the FJC study, that there is a national problem with cooperators being
identified and then either the cooperator being threatened or harmed, or the cooperator’s family
being threatened or harmed, or others being deterred from cooperating. The FJC determined that
to some degree the information used to identify these cooperators comes from court documents.
5

Because the change to the proposed text of the rule that prompted this amendment to the note was later
deleted, this change to the proposed Committee Note was deleted as well. See note 4, supra.

September 19, 2016

Page 33 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 34 of 497
Draft Minutes
Criminal Rules Meeting
April 2016
Page 14

Accordingly, CACM concluded that a uniform national measure, including changes to the rules
and a great deal of sealing, was required. CACM felt sufficiently strongly that it recommended
these procedures be adopted as an interim measure by local district rules. The recommendations
seek to prevent the identification of cooperators by making all plea agreements look identical,
requiring every agreement to include an unsealed portion and a sealed portion that contains either
the cooperation agreement or a statement that there is no cooperation agreement. Similarly, the
minutes of all plea proceedings would also contain a sealed portion for any discussion of
cooperation. Thus if someone examines the court records, there is no indication which cases
involved cooperation.
After receiving CACM’s recommendations, the FJC study, and a background
memorandum from the reporters, the Subcommittee held a lengthy and productive telephone
conference to get the initial reaction of members. Judge Kaplan summarized the Subcommittee
discussion. First, there was agreement that any retaliation against cooperators is very serious,
and the Committee should think very hard about any measures that would address it. However,
other institutions, especially the Department of Justice and Bureau of Prisons, also have a role to
play. Subcommittee members also voiced a variety of concerns and raised many questions:
017

,
How widespread is the problem? The FJC study provided anecdotal 2
ber 8 evidence concerning
ptem
400-600 instances of harm or threats, but approximatelySe
d on 10,000 defendants receive credit
hive
for cooperation each year.
9 arc
025
1 -5
To what extent would the cooperators5be identified even if the sealing recommendations
No.
oe,
were followed? In other ohn D would the recommendation solve the problem?
v. J words,
SA
What impact d in U the CACM recommendations have on the defense function? The
cite would
defense relies on research regarding cooperation to impeach and to argue for proportional
sentencing.

The Subcommittee concluded by asking the reporters to gather additional information on the
following questions:
How big is the problem compared to the universe of cooperators?
Do identifiable classes of cases account for most of the incidents?
Are there important geographic variations?
How does the incidence of problems compare with the widely varied approaches taken in
different districts?
The reporters were also asked to prepare a memorandum on the First Amendment issues raised
by CACM’s recommendations. Judge Kaplan noted that in his circuit the court of appeals has
severely restricted sealing practices.
Before the Subcommittee’s next telephone conference in July, further information will be
gathered from the FJC and the Department of Justice. The Subcommittee asked the Department

September 19, 2016

Page 34 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 35 of 497
Draft Minutes
Criminal Rules Meeting
April 2016
Page 15

of Justice for its position regarding CACM’s interim and long term proposals and requested
additional information about the Department’s practices.
Judge Kaplan then asked Committee members for their initial thoughts about the problem
and CACM’s recommendations.
Many members agreed that retaliation against cooperators is a serious problem, and that
the Committee had a responsibility to consider potential solutions. One member described it as a
moral obligation to do whatever we can to protect cooperators and not to implement or maintain
procedures that could discourage cooperators. Another member noted that although he was not
generally in favor of sealing, courts now seal for reasons such as the protection of trade secrets.
Preventing harm to cooperators is certainly at least as pressing a reason for sealing. If our records
are being used, we have to figure out what we can do to be part of the solution.
But members also raised a variety of concerns and questions about CACM’s proposals.
Several members spoke of the need for more information about the scope of the problem
and the degree to which it arises from court records. Several members noted that violent threats
17
to cooperators were much more likely in certain kinds of cases (such mber 8, 20involving gangs,
as cases
epte
drugs, terrorism, and organized crime) than in white collar prosecutions. There may also be
on S
ved
differences among districts. A member noted that 59 archi
in sparsely settled areas everyone knows who
502
. 15is cooperating, and sealing would have ,nooeffect. Members also expressed the need for more
N
Doe
information about the connectionhbetween the records that could be sealed and the potential for
o n
v. J
USA
threats and harm. Onenmember stated that criminal defendants and inmates are resourceful, and
ed i
cit
they have many different ways to identify cooperating defendants without court records,
including continuances, absences at status hearings, and Rule 35 motions. Other members
agreed that it would be important to determine whether the recommended procedures would
make a big difference in reducing threats and harm to cooperators. Members noted, however,
that this will be difficult to determine for many reasons. Although we can identify cooperators
who have been threatened or harmed, the threat or harm may have been the result of some
interaction in the prison, not the cooperation. Similarly, family members may not know the
reason for a threat or assault. It will be difficult to be certain how helpful a rule change would be.
A member noted that the experience in that member’s district raised questions about the
causal connection between sealing and threats/harm: that member’s circuit was among those that
most severely restricted sealing, but the member’s district also had one of the lowest rates of
threats/harm to cooperators.
Lawyer members expressed concern about the effect of CACM’s proposal on their ability
to represent their clients effectively. A member who represents both cooperating and noncooperating defendants described various ways sealing would hamper the defense.
Sealing would make it impossible to research disparity in sentencing. In the member’s
district, failure to conduct that research constitutes ineffective assistance of counsel.

September 19, 2016

Page 35 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 36 of 497
Draft Minutes
Criminal Rules Meeting
April 2016
Page 16

Sealing would make counseling clients much more difficult.
Sealing would hamper the ability to challenge racial disparities.
Sealing would limit access to exculpatory material, even when prosecutors try in good
faith to comply with Brady.
Another lawyer member noted that there may be a serious problem of retaliatory threats/harm in
certain kinds of cases, such as terrorism or gang cases, but a national rule requiring sealing in all
cases would also make it more difficult to effectively represent defendants in white collar cases,
which present no threat of violent retaliation.
A member agreed that the Committee would need to determine how much the current
rules are contributing to the problem of threats/harm; consider whether a rules change could
solve the problem; and address objections including ineffective assistance of counsel, Brady, and
the First Amendment.
Another member added other issues that should be explored. The first is a comparing the
effectiveness of sealing to other alternatives that might address the problem. It would be
important to know if sealing would make a significant difference. Second, it 017
would be helpful to
r 8, 2the seriousness of
understand exactly what the FJC counted as physical harm in order tto gauge
mbe
ep e
the problem.
on S
ived
rch

59 a

502
. 15-

A member who had participated, inoCACM’s deliberations stated that the FCJ study and
N
Doe
oh after an evidentiary hearing demonstrated the existence of a
the findings made by Judge Clark n
v. J
USA
problem. The membernnoted that CACM had raised many of the same questions now being
ed i
cit
asked by the Committee. It is important to determine the prevalence of the problem of
threats/harm to cooperators and whether it is limited to certain kinds of cases or geographic
areas. It would also be very helpful to have information about the experience of cooperating
defendants from the District of Maryland, which already follows the procedures CACM is
recommending. Has it solved the problem?
The Department of Justice representatives, Ms. Shapiro and Ms. Morales, stated that the
Department has not determined its position on the CACM proposals for interim rules in the
district courts and changes in the Rules of Criminal Procedure. Ms. Shapiro was a member of
the privacy subcommittee of the Standing Committee, which held the Fordham conference in
2010. At that time the Department was unable to reach an internal consensus on the best
approach. It surveyed the districts at that time and is updating that survey now. In 2010,
practices in the districts varied, and judges in each district were committed to their own practices
and thought them most effective.
Ms. Morales expressed the view that it would be very difficult to trace particular
harms/threats to rules that could be amended. Even if we can identify cooperators who have
been harmed, we won’t know why they were injured. It could have been because of a dispute in
the prison. We can identify the individuals who get Rule 35 or 5K sentencing reductions for
cooperation, but they are only a subset of the cooperators. Many other individuals may have

September 19, 2016

Page 36 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 37 of 497
Draft Minutes
Criminal Rules Meeting
April 2016
Page 17

cooperated at some point, but not to the degree necessary to get a Rule 35 or 5K reduction. So it
will be hard to get enough information to feel comfortable that we can assess the impact of the
current rules or of changes in the rules.
Professor Coquillette emphasized Judge Sutton’s hope that the Subcommittee and the full
Committee will take a broad view of the issue. If the Committee determines that it is not a
problem that can be solved by amending the rules, it would be beneficial for it to remain
engaged, be aware of what is being studied and considered by other constituencies, and be as
helpful as possible.
Margaret Williams, who was one of the authors of the FJC report prepared for CACM,
was present at the meeting and was asked to comment. She stated that the FJC data would
permit an analysis of whether the frequency of threats/harms varies from district to district. But
the FJC’s data will not answer other issues that have been raised. The survey did not ask about
the types of cases in which there had been threats/harm (though some respondents volunteered
that information). As noted by a member, Maryland has sealing procedures like those
recommended by CACM, but those procedures were already in place at the time of the FJC’s
study. So the FJC its data would not permit a “before and after” analysis of the effect of sealing.
7
01
r 8, 2

be
ptem

Se
Judge Kaplan thanked the members for their responses, and commented that it was likely
d on
chive
ar
there would be a lot of unknowns at the end of the5Subcommittee’s work.
2 9
-50

o. 15

e, N
n Do

h
The Committee turned. next to new suggested amendments.
v Jo
cited

A

in US

Professor Beale briefly described 15-CR-D, from Sai, which proposed multiple changes:
(1) redaction of the last four digits of social security numbers in pleadings; (2) sealing of
affidavits in support of applications for appointed counsel; (3) providing unpublished materials
cited in pleadings to pro se litigants; and (4) electronic filing for pro se litigants. The suggestion
had been addressed to all of the rules committees. The other committees had already held their
spring meetings, and Professor Beale explained the actions they had taken.
Regarding the proposal to redact the last four digits of individual social security numbers,
Professor Beale reported that the other committees had all agreed that the Rules Committees
should not take this issue up. Rather, it should be referred to the Committee for Court
Administration and Management, which made the policy decision reflected in the current rules,
and is in the best position to do research and consider tradeoffs. Professor Beale noted that she
and Professor King recommended that the Committee take the same approach.
With regard to the sealing of affidavits, Professor Beale noted that the Civil Rules
Committee was not, at this time, moving forward with this suggestion. A member noted,
however, that applications for appointments under the Criminal Justice Act are already filed ex
parte under seal. So on the criminal side, no further action is needed.
With regard to requiring litigants to provide copies of unpublished opinions to pro se

September 19, 2016

Page 37 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 38 of 497
Draft Minutes
Criminal Rules Meeting
April 2016
Page 18

litigants, the Civil Rules Committee had decided not to move forward at this time. This may be a
good practice, but is not necessarily something that should be mandated in a national rule.
Finally, with regard to the question whether pro se litigants should be permitted to file
electronically using the CM/ECF system, that proposal was at odds with the Committee’s
decision to preclude such filing in the proposed amendment to Rule 49 absent a court order or
local rule.
After a brief discussion, the Committee concurred in the decision to refer the question of
the last four digits of Social Security numbers to CAMC, and it decided to take no further action
on the other proposals.
The next suggestion, 15-CR-E, from Robert Miller, also proposed that indigent parties be
allowed to file in the CM/ECF system. Judge Molloy and Professor Beale agreed that like 15CR-D, this proposal had been considered and rejected by the Committee’s action in approving
the current proposal to amend Rule 49.
The next suggestion, 15-CR-F, came from Judge Richard Wesley, who drew a conflict in
17
the cases construing Rule 5(d) of the Rules Governing § 2255 Proceedings ,to0the Committee’s
r8 2
mbe
epte
attention. The Rule states that “The moving party may submitnaSreply to the respondent’s answer
o
ved
rchi
or other pleading within a time fixed by the judge.”9 Some courts have held that the inmate who
5 a
-502but may do so only if permitted by the court.
brings the 2255 action has no right to file a. reply,
o 15
e, N
n Do treat this as a right.
Other courts (and the committeeoh
note)
v. J
cited

A

in US

Professor Beale solicited the advice of the style consultants on language that might
respond to this split and clarify that the rule was intended to create a right to file. She noted that
the consultants thought the rule’s current language clearly creates a right, and there should be no
need to clarify the language. But confronted by the split in the lower courts, they did suggest
some language that might be employed to make this clearer.
Professor King noted the 2255 caseload is very heavy in some districts and courts must
process these cases quickly. She surmised that the courts that ruled an inmate has no right to file
may have been looking at pre-2004 precedents without realizing that the rule was modified in
2004 to provide for a right to reply. She summed up the reasons in favor of putting this proposal
on the Committee’s agenda for further study:
A rule is causing a problem. Inmates in some courts are not being given the opportunity
to file a reply as intended by the 2004 revision.
Although the style consultants believe the text is clear now, the split in the lower courts
demonstrates that courts are not finding it to be clear.
The decisions not recognizing the right to file a response may seriously affect inmates
who may have a persuasive response but are not permitted to file it.
Professor King acknowledged that we do not know precisely how many cases would be affected

September 19, 2016

Page 38 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 39 of 497
Draft Minutes
Criminal Rules Meeting
April 2016
Page 19

by a clarification of the rule. However, the suggestion did come to the Committee from a
member of the Standing Committee, which indicated that the Standing Committee might be
receptive if the Criminal Rules Committee considered an amendment.
Judge Molloy informed the Committee of his intention to form a subcommittee to address
Rule 5(d), and members were invited to make comments that might be helpful to it. Professor
King noted that one issue for the subcommittee would be whether there was also a need to clarify
the 2254 Rules. Another issue was whether the rule should specify a presumptive time for the
filing of a reply. In 2004, the Committee felt there was no reason not to permit an inmate to file
a reply to the government’s response. But the Committee chose not to set a presumptive time for
filing. The style consultants questioned this omission, noting that other rules specify time limits
for filing.
Members discussed their practices concerning the time for filing a reply in 2255 cases.
Several members set a briefing schedule giving the government 28 days to respond to the
petition, and the inmate 21 or 28 days to respond. One judge who set such a schedule noted that
he had never turned down a request for an extension of time. Several other members noted they
typically set similar schedules: 28 days for the government and 28 for the respondent.
7
01
r 8, 2

be
ptem

Later in the meeting, Judge Molloy announced that he n Se appointing the following to
d o was
hive
serve on the Rule 5 Subcommittee:
9 arc
25
-50

o. 15

e, N
n Do

Judge Kemp, chair v. Joh
Ms. Brook ted in USA
ci
Judge Dever
Justice Gilbertson
Mr. Hatten
Judge Hood
Ms. Morales (Department of Justice)

The next suggestion, 16-CR-A, came from James Burnham, who proposed that Rule
12(b)(3)(B)(v) be amended to make it clear that the standard for the dismissal of a criminal
indictment is the same as the standard for the dismissal of a civil complaint under Civil Rule
12(b)(6). Professor Beale commented that the proposal presents the policy question whether
criminal practice should be brought closer to the civil model.
A member who said he was “intrigued” by the proposal presented a recent example.
Several elderly men had cut through several levels of security fences to gain entry to a nuclear
facility, where they prayed. They did no other harm to the facility. After they refused to plead to
a more minor offense, the government added a more serious charge that required an intent to
harm the national defense. The defendant’s conviction was reversed on appeal. The appellate
court held that as a matter of law the facts established by the prosecution could not prove the
necessary intent, and thus did not constitute sabotage. Although the appellate court concluded
that the conduct in question did not, as a matter of law, constitute the offense charged, at the trial

September 19, 2016

Page 39 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 40 of 497
Draft Minutes
Criminal Rules Meeting
April 2016
Page 20

court level there had been a jury trial and a lengthy sentencing hearing. The member, who noted
that there is a slight difference in the language of the civil and criminal rules, acknowledged that
he did not know whether there are also significant differences in the pleading rules in criminal
and civil cases.
Judge Molloy observed that the pleading practices are set by the appellate rulings holding
that an indictment is sufficient if it states the date and parallels the language of the offense that
has been charged.
Another member expressed interest in the proposal but thought it was unlikely to be
adopted. He noted that a mechanism to raise claims already exists. As amended in 2014, Rule
12 of the Rules of Criminal Procedure provides for a pretrial motion to challenge “a defect in the
indictment or information, including . . . failure to state an offense.” But circuit law determines
what constitutes failure to state an offense. The Second Circuit will uphold a conviction if the
proof is sufficient and not inconsistent with the indictment, which may be bare bones.
A member responded that minimal pleading in criminal cases is hundreds of years old,
not something new. This looks like a proposal to return to the old common law7pleading rules.
1
He is sympathetic to the problem this poses for defendants, but it’s a mber 8, 20about the pleading
problem
e
Sept
standards.
d on
59
-502

ive

arch

A judge member stated that with No. 15
indictments stated in broad general terms and very
e,
n Do occasional cases in which defense counsel at the pretrial
limited pretrial discovery he v. Johhave
does
conference says that d in orSshe still does not know what the defendant is being accused of. The
he U A
cite
issue is closely connected to discovery. The member expressed interest in exploring the question
whether the government could be required to be more specific at some point: if not at the outset,
then at some point before trial.
Speaking for the Department of Justice, Ms. Morales said that the Supreme Court has
ruled that the pretrial notice requirements are met by an indictment issued by a grand jury. This
proposal seeks to create new substantive rights, which is beyond the authority of the Rules
Committee.
Judge Molloy asked whether Mr. Burnham’s objections could be met by a rules change,
or were really objections to how the courts have interpreted the rule. Two members responded.
One noted that Burnham had proposed specific language to amend Rule 12. Another said this
was not really a proposal about changing the language of Rule 12, and that it sought a
substantive change that would raise issues under the Rules Enabling Act.
A member described how the rule works in cases brought under RICO, where the
government is alleging a pattern of racketeering activity that may extend over a decade or more.
According to the precedents, the government can meet the pleading requirements and avoid
pretrial dismissal of the indictment with language paralleling the statute defining the offense and
the dates involved. Prosecutors have an incentive to do that in order to avoid post trial claims of

September 19, 2016

Page 40 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 41 of 497
Draft Minutes
Criminal Rules Meeting
April 2016
Page 21

some variance between the allegations in the indictment and the proof.
Some members returned to the idea that this is a sufficiency of the pleading issue. One
stated that although Rule 7(c) requires a “plain, concise, and definite statement of the offense
charged,” the level of detail that courts accept in criminal cases is less than that required in civil
cases. Another member stated that it appears more conclusory language is allowed in criminal
than in civil cases.
A member stated that he was not in favor of moving forward with the proposal. He stated
it would have significant implications of requiring more specificity for terrorism cases. The
Department of Justice is reluctant to provide a high level of specificity in the charging
documents that might reveal intelligence means and methods. During the pretrial period, under
the Classified Information Procedure Act (CIPA), more specifics are provided in a manner that
protects national security. Moreover, the proposal would invite in criminal cases the kind of
costly, repetitive, and lengthy pretrial motions practice that now occurs in some kinds of civil
cases, including big financial cases, antitrust cases, and securities class actions. If a judge needs
to take control of a case to get to the core, the judge has ample tools to do so now.
17

, 20
Judge Molloy announced that he did not intend to set up a Subcommittee to pursue the
ber 8
ptem
Se
proposed amendment to Rule 12.
d on
59
-502

ive

arch

Professor Beale presented 16-CR-B, 15 the National Association of Defense Lawyers
o. from
e, N
n Do of Defense Lawyers (NYCDL), which proposes that Rule
(NACLD) and the New Yorkv.Council
Joh
16 be amended to imposeSA
n U additional disclosure obligations on the government in complex cases.
i
cited
NACDL and NYCDL assert that prosecutorial discovery is a problem in complex cases that
involve “millions of pages of documentation,” “thousands of emails,” and “more gigabytes of
information.” They based their proposal on orders frequently issued by courts in the Southern
and Eastern Districts of New York. It provides a standard for defining a “complex case” and
steps to create reciprocal discovery.
At Judge Molloy’s request, the reporters briefly described the history of other attempts to
amend Rule 16 to require the government to provide additional pretrial discovery. Professor
Beale noted that proposals to amend Rule 16 have been defeated in the Criminal Rules
Committee, in the Standing Committee, at the Judicial Conference, and in Congress. She
reminded the Committee that the Rules Enabling Act process is, by design, conservative: it sets
up multiple points at which a controversial proposal may be stopped. She also noted that the
Department of Justice had strongly opposed amendments to Rule 16, but had itself implemented
many non-rule solutions, including amendments to the U.S. Attorneys’ Manual. She reminded
the Committee that 18 U.S.C. § 3500 imposes serious limits on certain forms of pretrial
disclosure and reflects many of the interests the Department was seeking to protect in its
advocacy in the rules process. She briefly described two attempts to amend the rule during her
time as reporter. The first time, after the Department took the unusual step of inviting
Committee members to participate in its efforts to revise the U.S. Attorneys’ Manual as an
alternative to revising Rule 16, a sharply divided Committee approved an amendment that was

September 19, 2016

Page 41 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 42 of 497
Draft Minutes
Criminal Rules Meeting
April 2016
Page 22

rejected by the Standing Committee. The second time, responding to a letter from Judge
Sullivan after the Stevens prosecution, the Committee asked the Federal Judicial Center (FJC) to
survey the views of judges, defense lawyers, and prosecutors concerning the need for an
amendment. The responses from judges were sharply split, and the Committee, despite a great
deal of effort, was unable to formulate a beneficial revision to Rule 16 that would not run afoul
of 18 U.S.C. § 3500. Accordingly, the Committee pursued other alternatives, working with the
Benchbook committee to encourage judges to supervise discovery.
Ms. Hooper, one of the FJC researchers who conducted the discovery study, stated that
the survey found that district judges were evenly split on whether they perceived a problem with
prosecutorial failure to disclose exculpatory evidence, 90% of defense lawyers perceived a
problem, and prosecutors did not perceive a problem.
Judge Molloy asked whether the judicial members had standing orders similar to the
NACDL/ NYCDL proposal. One judge member stated that although he had presided over many
cases that would fall within the proposal, he did not have a standing order because every case is
different. In a complex case, the trial judge has to require the government to make expedited
discovery (which varies depending on the case) so that the defense has adequate time to absorb.
17
Also, if the government has the information in a form that will facilitateethe 20
r 8, defense getting into
mb
pte
it, it must be provided in that format, e.g., hard drives in a certaineformat. He has ordered CJA
on S
ved
i
arc
funds for technical people to organize the electronicallyhstored information for the defense.
259
-50

o. 15

e, N
n Do

The member expressed Joh view that it is hard to legislate wisdom for trial judges. The
the
v.
trial judge must geteinto USAcase far enough to determine what’s required for that case. And it’s
n the
i
cit d
not appropriate to force a case with a huge amount of documents and witnesses to trial on the
normal schedule. Experienced judges understand without being told, or given specific overbroad
definitions. In some cases in which enormous quantities of information may be produced, but
only a tiny fraction of that material will be relevant.
Other judicial members agreed that these issues are handled by judges on a case-by-case
basis, and that it was not clear whether there was a need for rules and metrics. As the case
proceeds, defendants and issues may be dropped and what could have been a complex case is no
longer.
A practitioner member whose practice regularly includes complex cases responded that
courts don’t understand the defense perspective, and how hard it is for the defense in cases with,
for example, 100,000 taped conversations, to identify specific pieces of evidence that are
relevant to the government’s theory and to your own case. The only way this can work is for the
government to identify the data it will rely on to prove its case. He agreed, however, with the
premise that no one-size-fits-all rule works for all cases. But many judges now take a one-sizefits-all approach, and that approach is simply to follow Rule 16. The Rule needs an escape
clause for a small set of cases that require special treatment, not a routine application of Rule 16.
Although the member did not agree with every provision in the NACDL/NYCDL proposal
(which was more like a regulation than a rule), the main point is that an amendment is needed for

September 19, 2016

Page 42 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 43 of 497
Draft Minutes
Criminal Rules Meeting
April 2016
Page 23

this subset of cases because some judges continue to apply Rule 16 in complex cases without any
adjustment, which makes it impossible to mount a defense and forces defendants to plead guilty.
The member reiterated that some judges do not understand what the defense must do in these
cases, so they seek to move their dockets and are reluctant to impose a burden on the
government.
The member advocated for something “simple” that would recognize a category of
complex cases that require different treatment (e.g., requiting the government to identify its
exhibits in advance) and allow the defense adequate time for preparation, but also require
reciprocal defense discovery. The member was more concerned at this point about the concept
of what is needed—special class of cases requiring special procedures—than the specifics.
Another member opposed moving forward with the proposal, because it was better to
leave this to the discretion of judges than to try to legislate with the rules. He emphasized that
the complexity of cases can vary on multiple dimensions, particularly the nature of the case and
the makeup of the defense team (which could be two local lawyers or 50 lawyers in three law
firms in different countries). He also predicted that the Department of Justice would strongly
oppose the proposal because of the impact it could have in national security cases. He favored
17
leaving this to judicial discretion, which is more flexible than a rule. mber 8, 20
ed
rchiv

epte

on S

Another member urged consideration of the9 a
impact of complex cases on CJA lawyers,
5025
. 15who do not have the resources of Federal Defender offices, noting that judges are not familiar
o
e, N
with the situation CJA lawyers Jface Do complex cases. The member strongly supported the
ohn in
v.
US
creation of a subcommitteeAto try to develop an approach that would preserve judicial discretion
ed in
cit
but send a signal to judges to modify procedures in complex cases.
Speaking for the Department of Justice, Ms. Morales first stated that the Department
distinguished between the current proposal and more general prior attempts to modify Rule 16.
But the Department still does not think a rule is the best way to deal with these issues. The
Department has worked hard with the defense bar to develop guidance for judges on electronic
discovery, which led to a pocket guide. That kind of collaboration is nimble and can change
quickly as the technology changes. Technology is a moving target. The Department favors a
focus on developing best practices and guidance, not specific prescriptive rules.
A member agreed this is a significant issue, and is related to the broader issue of
electronic data and discovery, which is being studied by another committee. That committee has
been conducting hearings, and has heard repeatedly of the problems encountered by individual
CJA lawyers, who lack the knowledge and resources of the Federal Defenders. He noted,
however, that it was not yet clear whether this problem is a rules problem.
Judge Molloy announced the appointment of a Rule 16 Subcommittee to study the
proposal and the more general issue:
Judge Kethledge, chair

September 19, 2016

Page 43 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 44 of 497
Draft Minutes
Criminal Rules Meeting
April 2016
Page 24

Mr. Filip
Judge Feinerman
Mr. Kerr
Ms. Morales, for the Department of Justice
Mr. Siffert
Professor Beale introduced the last agenda item. She explained that in bankruptcy cases
there are routine filings of containing large amounts of personal data that should be redacted. In
some cases, a failure to redact has been discovered. Although bankruptcy courts have general
taken action to redact material in such cases, the Bankruptcy Committee thought it would be
desirable to add a rule providing for such retroactive redaction. When the Bankruptcy
Committee presented this to the Standing Committee as an information item, the Standing
Committee encouraged the Civil, Criminal, and Appellate Committees to consider whether a
similar rule would beneficial.
The issue was being presented at this meeting to get members’ initial reactions, with the
expectation that it would be on the fall agenda for a more extended discussion. Professor Beale
asked for initial reactions on several questions. Had members encountered cases in which
17
8 20
information that should have been redacted was filed in a criminal case? r If, so, did they think a
mbe
e
rules change to deal with those cases would be beneficial? d on Sept
And if members had not encountered
ve
hi
the problem, might it be beneficial to adopt a rules5change to parallel the Bankruptcy rule? This
9 arc
-502
5
would provide a mechanism to deal withNo. 1few cases that might arise in the future, and would
, the
Doe
n might arise from a comparison with the Bankruptcy Rule
avoid the negative implication Joh
that
v.
USA
authorizing retroactivenredaction.
ted i
ci

Several members said they had encountered failure to redact material in a few cases. In
each case the court or the party that failed to make the required redaction took corrective action.
In some cases the clerk of court restricted access to a document while corrective action was
taken. Professor Beale summed up the responses: failure to redact as required by Rule 49.1 does
occur occasionally in criminal cases, and courts have been dealing with it successfully. One
judge expressed an interest, if a retroactive redaction procedure is developed, to include a
requirement of an explanation of the failure to make the redaction and/or to discover the failure
in a timely fashion. Professor Beale stated that the reporters would collaborate with their
colleagues on the other committees on these issues. They would consider the argument that a
rule providing guidance would be valuable, but also the fact that the issue arises only
infrequently and courts have been dealing with it successfully.
Finally, Judge Molloy noted the next meeting of the Committee will be September 19-20
in Missoula, Montana. His tentative plan is to meet in the fall of 2017 in Chicago, and perhaps
in New York in the fall of 2018. The next two spring meetings be in Washington, D.C.,
The meeting was adjourned.

September 19, 2016

Page 44 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 45 of 497

TAB 1B
d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 45 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 46 of 497

THIS PAGE INTENTIONALLY BLANK

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 46 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 47 of 497
MINUTES
COMMITTEE ON RULES OF PRACTICE AND PROCEDURE
Meeting of June 6, 2016 | Washington, D.C.
TABLE OF CONTENTS
Attendance ........................................................................................................ 1
Introductory Remarks ....................................................................................... 2
Approval of the Minutes of the Last Meeting................................................... 2
Visit of Chief Justice Roberts ........................................................................... 3
Report of the Advisory Committee on Evidence Rules .................................... 3
Report of the Advisory Committee on Appellate Rules ................................... 5
Report of the Advisory Committee on Civil Rules........................................... 7
Report of the Advisory Committee on Criminal Rules .................................. 10
Report of the Advisory Committee on Bankruptcy Rules .............................. 11
Report of the Administrative Office ............................................................... 15
Concluding Remarks ....................................................................................... 15
ATTENDANCE
The Judicial Conference on Rules of Practice and Procedure held its fall meeting in Washington,
D.C., on June 6, 2016. The following members participated in the meeting: 17
, 20

ber 8

em
Sept

Judge Jeffrey S. Sutton, Chair
on
dProfessor William K. Kelley
hive Judge Patrick J. Schiltz
Associate Justice Brent E. Dickson
9 arc
025
15-5
Roy T. Englert, Jr., Esq.
Judge Amy St. Eve
No.
oe,
Daniel C. Girard, Esq.. John D
Judge Richard C. Wesley
Av
n US
Judge Neil itM. iGorsuch
Judge Jack Zouhary
c ed
Judge Susan P. Graber
The following attended on behalf of the advisory committees:
Advisory Committee on Appellate Rules –
Judge Steven M. Colloton, Chair
Professor Gregory E. Maggs, Reporter
Advisory Committee on Bankruptcy Rules –
Judge Sandra Segal Ikuta, Chair
Professor S. Elizabeth Gibson, Reporter
Professor Michelle M. Harner,
Associate Reporter

Advisory Committee on Criminal Rules –
Judge Donald W. Molloy, Chair
Professor Sara Sun Beale, Reporter
Professor Nancy J. King, Associate
Reporter
Advisory Committee on Evidence Rules –
Judge William K. Sessions III, Chair
Professor Daniel J. Capra, Reporter

Advisory Committee on Civil Rules –
Judge John D. Bates, Chair
Professor Edward H. Cooper, Reporter
Professor Richard L. Marcus, Associate Reporter
The Honorable Sally Quillian Yates, Deputy Attorney General, represented the Department of
Justice, along with Diana Erbsen, Joshua Gardner, Elizabeth J. Shapiro, and Natalia Sorgente.
September 19, 2016

Page 47 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 48 of 497
JUNE 2016 STANDING COMMITTEE – MINUTES
Page 2

Other meeting attendees included: Judge David G. Campbell; Judge Robert M. Dow; Judge Paul
W. Grimm; Sean Marlaire, staff to the Court Administration and Case Management Committee
(CACM); Professor Bryan A. Garner, Style Consultant; Professor R. Joseph Kimble, Style
Consultant; and Professor Joseph F. Spaniol, Jr., Consultant.
Providing support to the Committee:
Professor Daniel R. Coquillette
Rebecca A. Womeldorf
Julie Wilson
Scott Myers
Bridget M. Healy
Shelly Cox
Hon. Jeremy D. Fogel
Emery G. Lee
Tim Reagan
Derek A. Webb
Amelia G. Yowell

Reporter, Standing Committee
Secretary, Standing Committee
Attorney Advisor, RCSO
Attorney Advisor, RCSO
Attorney Advisor, RCSO
Administrative Specialist
Director, FJC
Senior Research Associate, FJC
Senior Research Associate, FJC
Law Clerk, Standing Committee
Supreme Court Fellow, AO

INTRODUCTORY REMARKS

017
r 8, 2

Se

be
ptem

d on
Judge Sutton called the meeting to order. He first acknowledged a number of imminent
hive
9 arc
02
departures from the Standing Committee effective5October 1, 2016: Justice Brent Dickson, Roy
15-5
No.
Englert, Judge Neil Gorsuch, and Judge, Patrick Schiltz are ending their terms as members of the
oe
hn D
v. Jo
Standing Committee and Judge Steve Colloton is ending his term as Chair of the Appellate Rules
A
n US
Advisory Committee, ia position that will be assumed by Judge Gorsuch. Judge Sutton offered
cited
remarks on the contributions each has made to the Committee over the years and warmly
thanked them for their service.

Judge Sutton recognized three individuals for reaching milestones of service to the Committee.
Rick Marcus has served for twenty years as the Associate Reporter to the Advisory Committee
on Civil Rules. Dan Capra has served for twenty years as the Reporter to the Advisory
Committee on Evidence Rules. And Joe Spaniol has served twenty-five years as a style
consultant to the Standing Committee.
Finally, Dan Coquillette took a moment to thank Judge Sutton, whose tenure as Chair of the
Standing Committee comes to an end October 1, 2016.
APPROVAL OF THE MINUTES OF THE LAST MEETING
Upon a motion by a member, seconded by another, and by voice vote: The Standing
Committee approved the minutes of the January 7, 2016 meeting.

September 19, 2016

Page 48 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 49 of 497
JUNE 2016 STANDING COMMITTEE – MINUTES
Page 3

VISIT OF CHIEF JUSTICE ROBERTS
Chief Justice Roberts and Jeffrey Minear, the Counselor to the Chief Justice, visited the Standing
Committee. Chief Justice Roberts made some brief remarks. He thanked the members of the
Committee for their service and acknowledged, as an alumnus of the Appellate Rules Committee
himself, that such service could be a significant commitment of time. And he congratulated the
Committee on the new discovery rules that went into effect on December 1, 2015, rule
amendments he highlighted in his 2015 Year-End Report on the Federal Judiciary.
REPORT OF THE ADVISORY COMMITTEE ON EVIDENCE RULES
Judge Sessions and Professor Capra provided the report on behalf of the Advisory Committee on
Evidence Rules, which met on April 29, 2016, in Washington, D.C. Judge Sessions presented
two action items and a number of information items.
Action Items
RULE 803(16) – The first matter for final approval was an amendment to Rule 803(16), the
ancient documents exception to the hearsay rule, to limit its application to documents prepared
before January 1, 1998. The version of Rule 803(16) published for comment would have
17
eliminated the exception entirely. After hearing from many lawyers whor continue to rely on the
8, 20
mbe
ancient documents exception, the Advisory Committee decided Septe eliminating the
against
on
exception. Instead, the Advisory Committee revised archived
its proposal to provide a cutoff date for the
9
5025
application of the exception. The Ad vi s or15-Committee decided against leaving the exception
. y
, No
Doe
in its current form because, unlikencertain “ancient” hard copy documents, the retention of
oh
v. J
electronically-stored information beyond twenty years does not by itself suggest reliability.
USA
ed in
cit
Judge Sessions acknowledged that any cutoff date will have a degree of arbitrariness, but also
observed that electronically-stored information (known as “ESI”) first started to explode around
1998 and that the ancient documents exception itself set an arbitrary time period of twenty years
for its applicability.
Upon a motion by a member, seconded by another, and by voice vote: The Standing
Committee unanimously approved the proposed amendment to Rule 803(16), as amended
after publication, for submission to the Judicial Conference for final approval.
RULE 902 (13) & (14) – The second matter for final approval was an amendment to Rule 902 to
add two new subdivisions ((13) and (14)) that would allow for the authentication of certain
electronic evidence through certification by a qualified person without requiring that person to
testify in person. The first provision would allow self-authentication of machine-generated
information upon a submission of a certification prepared by a qualified person. The second
provision would provide a similar certification procedure for a copy of data taken from an
electronic device, medium, or file. The proposals for new Rules 902(13) and 902(14) would
have the same effect as current Rules 902(11) and 902(12), which permit a foundation witness to
establish the authenticity of business records by way of certification. One Committee member
suggested providing instructions on the application of the rule with the inclusion of examples in
the Committee Note. After discussion, Professor Capra agreed to do that.

September 19, 2016

Page 49 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 50 of 497
JUNE 2016 STANDING COMMITTEE – MINUTES
Page 4

Upon a motion by a member, seconded by another, and by voice vote: The Standing
Committee unanimously approved the proposed amendments to Rule 902 (13) and (14) for
submission to the Judicial Conference for final approval.
Information Items
Judge Sessions highlighted several information items on behalf of the Advisory Committee.
GUIDE FOR AUTHENTICATING ELECTRONIC EVIDENCE – The Standing Committee discussed the
use and dissemination of the draft Guide for Authenticating Electronic Evidence. Written by
Judge Grimm, Gregory Joseph, and Professor Capra, the manual would be for the use of the
bench and bar and can be amended as necessary to keep pace with technological advances. The
manual will be published by the Federal Judicial Center (FJC). The manual is not an official
publication of the Advisory Committee itself. The members of the Standing Committee
discussed the manual, noting its great value to judges and practitioners who regularly deal with
the issue of authenticating electronic evidence, and expressed deep gratitude to its three authors
for their work creating it and to the FJC for its assistance with publication.
POSSIBLE AMENDMENTS TO THE NOTICE PROVISIONS IN THE EVIDENCE RULES – The Advisory
Committee has been considering ways to amend and make more uniform several notice
0 7
provisions throughout the Federal Rules of Evidence. For the notice provision1of Rule 807(b),
r 8, 2
mbe
the Residual Exception to the hearsay rule, the Advisory Committeeeis inclined to add a good
ept
on S
vedto offer statements covered under
cause exception to excuse lack of timely notice of the rchi
intent
9a
this exception. The Advisory Committee is 15-50inclined to require that notice under 807(b) be
also 25
o.
written and not just oral. For the hn Doe, provision of Rule 404(b), the Advisory Committee is
notice N
Jo
inclined to remove thein USA v.
requirement that the defendant in a criminal case must first specifically
cited
request that the government provide notice of their intent to offer evidence of previous crimes or
other bad acts against the defendant. The Advisory Committee concluded that this requirement
in Rule 404 was an unnecessary trap for the unwary lawyer and differs from most local rules.
Finally, the Advisory Committee has concluded that the notice provisions in Rules 412, 413,
414, and 415 should not be changed through the Rules Enabling Act process as those rules were
congressionally enacted and, in any event, are rarely used.
RESIDUAL EXCEPTION: RULE 807 – Judge Sessions reported on the symposium held in
connection with the Advisory Committee’s fall 2015 Chicago meeting regarding the potential
elimination of the categorical hearsay exceptions (excited utterance, dying declaration, etc.) in
favor of expanding the residual hearsay exception. The lawyers who testified before the
Advisory Committee unanimously opposed the elimination of the hearsay exceptions. The
Advisory Committee agrees that the exceptions should not be eliminated. But the Advisory
Committee continues to consider expansion of the residual exception to allow the admission of
reliable hearsay even absent “exceptional circumstances.” The Advisory Committee included a
working draft of amended Rule 807 in the agenda materials. It is planning a symposium in the
fall to continue to discuss possible amendments to Rule 807, to be held at Pepperdine School of
Law.
TESTIFYING WITNESS’S PRIOR INCONSISTENT STATEMENT: RULE 801(D)(1)(A) – The Advisory
Committee is considering an expansion beyond what Rule 801(d)(1)(A) currently allows, which

September 19, 2016

Page 50 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 51 of 497
JUNE 2016 STANDING COMMITTEE – MINUTES
Page 5

are prior inconsistent statements made under oath during a formal proceeding. The Advisory
Committee has rejected the idea of expanding the rule to cover all prior inconsistent statements,
but continues to consider inclusion of prior inconsistent statements that have been video
recorded.
EXCITED UTTERANCES: RULE 803(2) – The Advisory Committee considered four separate
proposals to amend or eliminate Rule 803(2) on the grounds that “excited utterances” are not
necessarily reliable. It determined not to take up any of the suggestions given the impact on
other rules, as well as an FJC report regarding various social science studies on Rule 803(2)
which provided some empirical support for the proposition that immediacy and excitedness tend
to guarantee reliability.
CONVERTING CATEGORICAL HEARSAY EXCEPTIONS INTO GUIDELINES – At the suggestion of
Judge Milton Shadur, the Advisory Committee considered reconstituting the categorical hearsay
exceptions as standards or guidelines rather than binding rules. The Advisory Committee
ultimately decided against doing so.
CONSIDERATION OF A POSSIBLE AMENDMENT TO RULE 803(22) – At the suggestion of Judge
Graber, the Advisory Committee considered eliminating two exceptions to Rule 803(22):
convictions from nolo contendere pleas and misdemeanor convictions. The Advisory Committee
7
concluded that retaining each of these exceptions was warranted.
, 201

er 8
temb
Septo proceed with suggestions
RULE 704(B) – Similarly, the Advisory Committee determinednnot
do
hive
eliminate Rule 704(b) or to create a specific rule0regarding electronic communication and
9 arc
25
15-5
hearsay.
No.
oe,
hn D
v. Jo
A
IMPLICATIONS OF CRAWFORD – The Advisory Committee continues to monitor case law
in US
cited

to

developments after the Supreme Court’s decision in Crawford v. Washington, in which the Court
held that the admission of “testimonial” hearsay violates the accused’s right to confrontation
unless the accused has an opportunity to confront and cross-examine the declarant.
REPORT OF THE ADVISORY COMMITTEE ON APPELLATE RULES
Judge Colloton and Professor Maggs provided the report on behalf of the Advisory Committee
on Appellate Rules, which met on April 5, 2016, in Denver, Colorado. Judge Colloton advised
that Judge Gorsuch will be the new chair of the Advisory Committee as of October 2016.
Judge Colloton reported that the Advisory Committee had four action items in the form of four
sets of proposed amendments to be published this upcoming summer for which it sought the
approval of the Standing Committee.
Action Items
CONFORMING AMENDMENTS TO RULES 8, 11, AND 39(E)(3) – The first set of amendments
recommended for publication were amendments to Rules 8(a)(1)(B), 8(a)(2)(E), 8(b), 11(g), and
39(e)(3) to conform to the amendment to Rule of Civil Procedure 62 by revising any clauses that
use the antiquated term “supersedeas bond.” The language would be changed to “bond or other

September 19, 2016

Page 51 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 52 of 497
JUNE 2016 STANDING COMMITTEE – MINUTES
Page 6

security” as appropriate in each of the rules. Judge Colloton noted that the Civil Rules
Committee would discuss the amendment to Rule 62 later in the meeting. He added that the
Style Consultants suggested a minor edit to proposed Rule 8(b) (adding the word “a” before
“stipulation” on line 16) after the publication of the agenda book materials, and that the Advisory
Committee accepted the edit. The Standing Committee discussed the phrase “surety or other
security provider” and whether “security provider” contained within it the term “surety” and
made minor edits to the proposed amendments.
Upon motion, seconded by a member, and on a voice vote: The Standing Committee
unanimously approved for publication for public comment the proposed conforming
amendments to Rules 8(a)(1)(B), 8(a)(2)(E), 8(b), 11(g), and 39(e)(3), contingent on the
Standing Committee’s approval of the proposed amendment to Civil Rule 62 later in the
meeting.
LIMITATIONS ON THE FILING OF AMICUS BRIEFS BY PARTY CONSENT: RULE 29(A) – The proposed
amendment to Rule 29(a) would allow a court to prohibit or strike the filing of an amicus brief
based on party consent where the filing of the brief might cause a judge’s disqualification. This
amendment would ensure that local rules that forbid the filing of an amicus brief when the filing
could cause the recusal of one or more judges would be consistent with Rule 29(a). Professor
Coquillette observed that, as important as preserving room for local rules may 17 congressional
be,
20
r 8,urging the Rules
committees in the past have responded to the proliferation of local ruleseby
mb
epte
Committee to allow them only if they respond to distinctivedgeographic, demographic, or
on S
ive
a h
economic realities that prevail in the different circuits.rcJudge Colloton explained that this
259
-50
o. 1to
proposed amendment is particularly relevant 5 the rehearing en banc process which traditionally
oe, N
D
has been decentralized andA v. Johnto local variations. He further explained that the Advisory
subject
S
in U
Committee discussed and rejected expanding the exception to other types of amicus filings. The
cited
Advisory Committee made minor stylistic edits to the proposed amended rule.
Upon motion, seconded by a member, and on a voice vote: The Standing Committee
unanimously approved for publication for public comment the proposed amendment to
Rule 29(a).
APPELLATE FORM 4 – Litigants seeking permission to proceed in forma pauperis are currently
required by Appellate Form 4 to provide the last four digits of their Social Security number.
Given the potential security and privacy concerns associated with Social Security numbers, and
the consensus of the clerks of court that the last four digits of a Social Security number are not
needed for any purpose, the Advisory Committee proposes to amend Form 4 by deleting this
question.
Upon motion, seconded by a member, and on a voice vote: The Standing Committee
unanimously approved for publication for public comment the proposed amendment to
Appellate Form 4.
REVISION OF APPELLATE RULE 25 TO ADDRESS ELECTRONIC FILING, SIGNATURES, SERVICE, AND
PROOF OF SERVICE – In conjunction with the publication of the proposed amendment to Civil
Rule 5, and in an effort to achieve an optimal degree of uniformity, the Advisory Committee

September 19, 2016

Page 52 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 53 of 497
JUNE 2016 STANDING COMMITTEE – MINUTES
Page 7

proposes to amend Appellate Rule 25 to address electronic filing, signatures, service, and proof
of service. The proposed revision generally requires all parties represented by counsel to file
electronically. The Standing Committee discussed the use of “person” versus “party” throughout
the proposed amended rule, as well as the use of these phrases in the companion Criminal and
Civil Rules. One minor stylistic amendment was proposed. The Standing Committee decided to
hold over the vote to approve publication of the proposed amendment to Rule 25 until the
discussion regarding Civil Rule 5.
Information Item
Judge Colloton discussed whether Appellate Rules 26.1 and 29(c) should be amended to require
additional disclosures to provide further information for judges in determining whether to recuse
themselves. It is an issue that the Advisory Committee will consider at its fall meeting.
REPORT OF THE ADVISORY COMMITTEE ON CIVIL RULES
Judge Bates and Professors Cooper and Marcus provided the report on behalf of the Advisory
Committee on Civil Rules, which met on April 14, 2016, in Palm Beach, Florida. The Advisory
Committee had four action items in the form of three sets of proposed amendments to be
published this upcoming summer and the pilot project proposal.
Action Items

d on

hive
9 arc

017
r 8, 2

Se

be
ptem

025
RULE 5 – The Advisory Committees for Civil, -Appellate, Bankruptcy, and Criminal Rules have
15 5
No.
oe,
recently worked together to createnuniform provisions for electronic filing and service across the
h D
v. Jo
A
four sets of rules to achieve an optimal degree of uniformity. Professor Cooper explained that
in US
cited
the Advisory Committee for Criminal Rules wisely decided to create their own stand-alone rule,
proposed Criminal Rule 49.

With regard to filing, the proposed amendment to Rule 5 requires a party represented by an
attorney to file electronically unless nonelectronic filing is allowed by the court for good cause
or is allowed or required by local rule. It allows unrepresented parties to file electronically if
permitted by court order or local rule. And it provides that an unrepresented party may be
required to file electronically only by court order or by a local rule that includes reasonable
exceptions. Under the amended rule, a paper filed electronically would constitute a written paper
for purposes of the rules.
With regard to service, the amended rule provides that a paper is served by sending it to a
registered user by filing it with the court’s electronic filing system or by sending it by other
electronic means if that person consents in writing. In addition, service is complete upon filing
via the court’s electronic filing system. Rule 5(b)(3), which allows electronic service only if a
local rule authorizes it, would be abrogated to avoid inconsistency with the amended rule.
The Standing Committee discussed the use of the terms “person” and “party” throughout Rule 5
and across other sets of rules and agreed to consider this issue further after the meeting.

September 19, 2016

Page 53 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 54 of 497
JUNE 2016 STANDING COMMITTEE – MINUTES
Page 8

Upon motion, seconded by a member, and on a voice vote: The Committee unanimously
approved the proposed amendments to Civil Rule 5 for publication for public comment.
Upon motion, seconded by a member, and on a voice vote: The Committee unanimously
approved for publication for public comment the proposed amendment to Appellate
Rule 25 that conforms to the amended Civil Rule 5.
RULE 23 – Judge Bates detailed six proposed changes to Rule 23, many of which concern
settlements in class action lawsuits. Rule 23(c)(2)(B) extends notice consideration to a class
proposed to be certified for settlement. Rule 23(e) applies the settlement procedural
requirements to a class proposed to be certified for purposes of settlement. Rule 23(e)(1) spells
out what information parties should give the courts prior to notice and under what circumstances
courts should give notice to the parties. Rule 23(e)(2) lays out general standards for approval of
the proposed settlement. Rule 23(e)(5) concerns class action objections, requiring objectors to
state to whom the objection applies, requiring court approval for any payment for withdrawing
an objection or dismissing an appeal, and providing that the indicative ruling procedure be used
if an objector seeks approval of a payment for dismissing an appeal after the appeal has already
been docketed. Finally, Rule 23(f) specifies that an order to give notice based on a likelihood of
certification under Rule 23(e)(1) is not appealable and extends to 45 days the amount of time for
an appeal if the United States is a party. Judge Robert Dow, the chair of the Rule 23
2017
Subcommittee, explained the outreach efforts by the subcommittee tand er 8, that many of the
mb stated
ep e
proposed changes would provide more flexibility for judges andSpractitioners. The Rule 23
on
ved
hi
9 arc
Subcommittee, under Judge Dow’s leadership and5with research support from Professor Marcus,
-502
o. 15
has devoted years to generating theseoproposed amendments, organized multiple conferences
e, N
n Dpractitioners, and considered many other possible
around the country with class .action
Joh
Av
n US
i
amendments.
cited
Upon motion, seconded by a member, and on a voice vote: The Committee unanimously
approved the proposed package of amendments to Civil Rule 23 for publication for public
comment.
RULE 62 – Judge Bates reported that a subcommittee composed of members of the Appellate and
Civil Rules Committees and chaired by Judge Scott Matheson laid the groundwork for
amendments to Rule 62. The proposed amendment includes three changes to the rule. First,
Rule 62(a) extends the automatic stay from 14 days to 30 days in order to eliminate the “gap”
between the 14-day automatic stay and the 28 days allowed for various post-judgment motions.
Second, it recognizes the court’s authority to dissolve the automatic stay or replace it with a
court-ordered stay for a longer duration. Third, Rule 62(b) clarifies that security other than a
bond may be posted. Another organizational change is a proposed new subsection (d) that would
include language from current subsections (a) and (c). Judge Bates added that the word
“automatic” would be removed from the heading of Rule 62(c) and that conforming edits will be
made to the proposed rule to accommodate changes made to the companion Appellate Rules.
Professor Cooper stated that Rule 65.1 would be conformed to Appellate Rules 8, 11, and 39
after the conclusion of the meeting.

September 19, 2016

Page 54 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 55 of 497
JUNE 2016 STANDING COMMITTEE – MINUTES
Page 9

Upon motion, seconded by a member, and on a voice vote: The Committee unanimously
approved the proposed amendments to Civil Rule 62 for publication for public comment.
It also approved granting to the Civil Rules Advisory Committee the authority to make
amendments to Rule 65.1 to conform it to Appellate Rules 8, 11, and 39 with the goal of
seeking approval of the Standing Committee in time to publish them simultaneously in
August 2016. Finally, with the amendment to Civil Rule 62 officially approved for
publication, it also approved for publication the proposed amendments to Appellate Rules
8(a)(1)(B), 8(a)(2)(E), 8(b), 11(g), and 39(e)(3) which all conform to the amended Civil
Rule 62.
PILOT PROJECTS – Judge Campbell provided the report of the Pilot Projects Subcommittee, which
included participants from the Standing Committee, CACM, and the FJC. The Subcommittee
has collected and reviewed a lot of information, including working with focus groups of lawyers
with experience with these types of discovery regimes. As a result of this work, the Advisory
Committee seeks approval to forward the Mandatory Initial Discovery Pilot Project and
Expedited Procedures Pilot Project to the Judicial Conference for approval. The first project
would test a system of mandatory initial discovery requests to be adopted in each participating
court. The second would test the effectiveness of court-wide adoption of practices that, under
the current rules, have proved effective in reducing cost and delay.
17

, 20
Judge Campbell proceeded to detail each pilot project and asked for comments and suggestions
ber 8
ptem the proposed procedures.
on the proposals. For the first pilot project, Judge Campbell explained
Se
d on
chivejudges in a district would be required
The Standing Committee then discussed whether or9not all
ar
25
to participate in the pilot project, how to No. 15-50 districts that should participate, and how to
choose the
oe,
measure the results of the pilot Jstudies. Judge Bates noted the Advisory Committee’s strong
hn D
v. o
USA
support of the project.inSeveral Standing Committee members voiced their support as well.
d
cite

For the second pilot project, many of the procedures are already available, and the purpose of the
pilot project is to use education and training to achieve greater use of available procedures.
Judge Campbell advised the Committee that CACM has created a case dashboard that will be
available to judges via CM/ECF, and that judges will be able to use this tool to monitor the
progress of their cases. The pilot would require a bench/bar meeting each year to monitor
progress.
Upon motion, seconded by a member, and on a voice vote: The Committee unanimously
approved the recommendation to the Judicial Conference of the (i) Mandatory Initial
Discovery Pilot Project and (ii) Expedited Procedures Pilot Project, with delegated
authority for the Advisory Committee and the Pilot Projects Subcommittee to make
refinements to the projects as discussed by the Committee.
Information Items
EDUCATIONAL EFFORTS REGARDING 2015 CIVIL RULES PACKAGE – Judge Bates outlined some of
the efforts undertaken by the Advisory Committee and the FJC to educate the bench and the bar
about the 2015 discovery reforms of the Rules of Civil Procedure. Among other efforts, he
mentioned the production of several short videos, a 90-minute webinar, plenary sessions at

September 19, 2016

Page 55 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 56 of 497
JUNE 2016 STANDING COMMITTEE – MINUTES
Page 10

workshops for district court judges and magistrate judges, segments on the discovery reforms at
several circuit court conferences, and other programs sponsored by the American Bar
Association.
Judge Bates advised that a subcommittee has been formed, chaired by Judge Ericksen, to
consider possible amendments to Rule 30(b)(6). Professor Cooper stated that the Advisory
Committee is considering amending Rule 81(c) in light of a concern that it may not adequately
protect against forfeiture of the right to a jury trial after a case has been removed from state
court.
REPORT OF THE ADVISORY COMMITTEE ON CRIMINAL RULES
Judge Molloy and Professors Beale and King provided the report for the Advisory Committee on
Criminal Rules, which met on April 18, 2016, in Washington, D.C. He reported that the
Advisory Committee had three action items in the form of three proposed amendments to be
published this upcoming summer for which it sought the approval of the Standing Committee.
Action Items
RULE 49 – Judge Molloy explained the proposed new stand-alone rule governing electronic
017
r ,2
service and filing in criminal cases. The Advisory Committee determined8to have a stand-alone
mbe
pte
rule for criminal cases rather than to continue the past practicenofeincorporating Civil Rule 5 by
o S
ved
r hi
reference. The proposed amendments to Rule 492trackcthe general order of Civil Rule 5 rule and
59 a
-50
.
much of its language. Unlike the civilerule, 15 49’s discussion of electronic filing and service
, No Rule
n Do service in the new criminal rule. Both rules provide that
h
comes before nonelectronic filing and
v. Jo
USA
nmust file nonelectronically unless allowed to file electronically by court
an unrepresented cited i
party
order or local rule. But one substantive difference between the two rules is that, under Civil
Rule 5, an unrepresented party may be required to file electronically by court order or local rule.
A second substantive difference is that all nonparties must file and serve nonelectronically in the
absence of a contrary court order or local rule. This conforms to the current architecture of
CM/ECF which only allows the government and the defendant to file electronically in a criminal
case. Third, proposed Rule 49 contains language borrowed from Civil Rule 11(a) regarding
signatures.
Upon motion, seconded by a member, and on a voice vote: The Standing Committee
unanimously approved the proposed amendments to Rules 49 for publication for public
comment.
RULE 45(C) – The proposed amendment to Rule 45(c) is a conforming amendment. It replaces
the reference to Civil Rule 5 with a reference to Rule 49(a)(4)(C),(D), and (E).
Upon motion, seconded by a member, and on a voice vote: The Standing Committee
unanimously approved the proposed amendment to Rules 45(c) for publication for public
comment.

September 19, 2016

Page 56 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 57 of 497
JUNE 2016 STANDING COMMITTEE – MINUTES
Page 11

RULE 12.4 – The proposed amendment to Rule 12.4, changes the required disclosures for
statements under Rule 12.4 regarding organizational victims. It permits a court, upon the
showing of good cause, to relieve the government of the burden of filing a statement identifying
any organizational victim. The proposed amendments reflect changes to the Code of Judicial
Conduct and require a party to file the Rule 12.4(a) statement within 28 days after the
defendant’s initial appearance. The Standing Committee briefly discussed similar potential
changes to the Appellate Rules regarding disclosure of organizational victims. And the Advisory
Committee discussed removing the word “supplemental” from the title and body of Rule 12.4(b)
in order to avoid potential confusion.
Upon motion, seconded by a member, and on a voice vote: The Standing Committee
unanimously approved the proposed amendments to Rule 12.4 for publication for public
comment.
Information Items
Judge Molloy reviewed several of the pending items under consideration by the Advisory
Committee. The Cooperator Subcommittee continues to consider the problem of risk of harm
to cooperating defendants and the kinds of procedural protections that might alleviate this
problem. The Subcommittee includes representatives from the Advisory Committee, Standing
Committee, CACM, and the Department of Justice. The Advisory Committee 17 formed
has
0
r 8, 2 with discovery
subcommittees to consider suggested amendments to Criminal Rulee16be
dealing
pt m
in complex criminal cases and Rule 5 of the Rules Governing n Se
oSection 2255 Proceedings
d
hive
regarding petitioner reply briefs. And in response 59 arc op-ed by Judge Jon Newman, the
2 to an
-50
o. 15
Advisory Committee will consider theewisdom of reducing the number of peremptory
o ,N
D
challenges in federal trials.A v. John
cited

in US

REPORT OF THE ADVISORY COMMITTEE ON BANKRUPTCY RULES
Judge Sandra Ikuta and Professors Gibson and Harner presented the report on behalf of the
Advisory Committee on Bankruptcy Rules, which met on March 31, 2016, in Denver, Colorado.
The Advisory Committee had nine action items, and sought final approval for three of the items:
Rule 1001; Rule 1006, and technical changes to certain official forms.
Action Items
RULE 1001 – The first item was a request for final approval of Rule 1001, dubbed the “civility
rule” by Judge Ikuta, which was published in August 2015 to track changes to Civil Rule 1.
Judge Ikuta explained that the Advisory Committee considered the comments submitted, but
made no changes to the published version of the amended rule.
Upon a motion by a member, seconded by another, and by voice vote: The Committee
unanimously approved the proposed amendments to Rule 1001 for submission to the
Judicial Conference for final approval.
RULE 1006 – The second item was a proposed change to Rule 1006(b), also published for
comment in August 2015. The rule explains how a person filing a petition in bankruptcy can pay

September 19, 2016

Page 57 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 58 of 497
JUNE 2016 STANDING COMMITTEE – MINUTES
Page 12

the filing fee in installments, as allowed by statute. The proposed amendment clarified that
courts may not refuse to accept petitions or summarily dismiss a case because the petitioner
failed to make an initial installment payment at the time of filing (even if such a payment was
required by local rule). Judge Ikuta said that the Advisory Committee considered the comments
submitted, but made no changes to the published version of the amended rule.
Upon a motion by a member, seconded by another, and by voice vote: The Committee
unanimously approved the proposed amendments to Rule 1006 for submission to the
Judicial Conference for final approval.
TECHNICAL CHANGES TO OFFICIAL FORMS – Judge Ikuta next described the Advisory
Committee’s recommendation for retroactive approval of technical changes to nine official
forms. She explained that the Judicial Conference at its March 2016 meeting approved a new
process for making technical amendments to official bankruptcy forms. Under the new process,
the Advisory Committee makes the technical changes, subject to retroactive approval by the
Committee and report to the Judicial Conference. Judge Sutton thanked Judge Ikuta for
developing the new streamlined approval process for technical changes to official bankruptcy
forms.
Upon a motion by a member, seconded by another, and by voice vote: 7The Committee
01
r 8, 2
unanimously approved the proposed technical changes to OfficialbForms 106E/F, 119, 201,
m e
pte
206, 206E/F, 309A, 309I, 423, and 424, for submissionetoon Se Judicial Conference for final
the
v d
hi
9 arc
approval.
5025
-

o. 15

e, N
n Do

Judge Ikuta reported that the v. Joh
Advisory Committee had six additional action items in the form of
A
n US
i
six sets of proposedeamendments to be published this upcoming summer for which it sought the
cit d
approval of the Committee.
Before focusing on these specific recommendations, however, Judge Ikuta first suggested that
the Committee adopt a procedure for more systematically coordinating publication and approval
of amendments that affect multiple rules across different advisory committees. The chair
recommended that the Rules Committee Support Office lead the coordination effort over the next
year and that the Committee then evaluate whether further refinement of the process is needed.
Judge Ikuta next explained and sought approval for a package of conforming amendments:
RULE 5005(A)(2) – Judge Ikuta said that the proposed amendments to Rule 5005(a)(2) would
make the rule consistent with the proposed amendment to Civil Rule 5(d)(3).
RULES 8002(C), 8011(A)(2)(C), OFFICIAL FORM 417A, RULE 8002(B), RULES 8013, 8015, 8016,
8022, OFFICIAL FORM 417C, PART VIII APPENDIX, AND RULE 8017 – Judge Ikuta next discussed
proposed changes to Rules 8002(c), 8011(a)(2)(C), and Official Form 417A; Rule 8002(b)
(regarding timeliness of tolling motions); Rules 8013, 8015, 8016, 8022, Official Form 417C,
and Part VIII Appendix (regarding length limits), and Rule 8017 (regarding amicus filings). The
rule and form changes were proposed to conform to pending and proposed changes to the
Federal Rules of Appellate Procedure.

September 19, 2016

Page 58 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 59 of 497
JUNE 2016 STANDING COMMITTEE – MINUTES
Page 13

RULE 8002(A)(5) – The new subdivision (a)(5) to Rule 8002 includes a provision similar to
FRAP 4(a)(7) specifying when a judgment or order is “entered” for purposes of appeal.
Upon a motion by a member, seconded by another, and by voice vote: The Committee
unanimously approved the package of conforming amendments to Rules 5005(a)(2),
8002(C), 8011(a)(2)(C), Official Form 417C, Part VIII Appendix, Rule 8017, and
Rule 8002(a)(5) for publication for public comment.
RULES 3015 AND 3015.1 – Judge Ikuta explained that the Advisory Committee published the first
version of the plan form and nine related rule amendments in August 2013. The Advisory
Committee received a lot of comments, made significant changes, and republished in 2014.
During the second publication, the Advisory Committee again received many comments,
including one comment signed by 144 bankruptcy judges who opposed a national official form
for chapter 13 plans. Late in the second comment period, the Advisory Committee received a
comment proposing that districts be allowed to opt out of the national plan if their local plan
form met certain requirements. Many of the bankruptcy judges who opposed a national plan
form supported the “opt-out” proposal.
At its fall 2015 meeting, the Advisory Committee approved the national plan form and related
rule amendments, but voted to defer submitting those items for final approval0pending further
17
r 2
consideration of the opt-out proposal. The Advisory Committee reached 8, to bankruptcy
mbe out
pte
interest groups, made refinements to the opt-out proposal, ed onreceived support from most
and Se
v
hi
9 a judges.
interested parties, including many of the 144 opposingrc
5025
-

o. 15

e, N
n Do

The proposed amendment to v. Joh 3015 and new Rule 3015.1 would implement the opt-out
Rule
A
n US require that the national chapter 13 plan form be used unless a
provision. Rule 3015 iwould
cited
district adopts a local district-wide form plan that complies with requirements set forth in
proposed new Rule 3015.1. The Advisory Committee determined that a third publication period
would allow for full vetting of the opt-out proposal, but it recommended a shortened three-month
public comment period because of the narrow focus of the proposed change. To avoid
confusion, the Advisory Committee recommended that opt-out rules be published in July 2016, a
month earlier than the rules and forms to be published in August 2016.
Upon a motion by a member, seconded by another, and by voice vote: The Committee
unanimously approved the proposed amendments to Rule 3015 and 3015.1 for publication
for public comment.
RULE 8006 – The Advisory Committee proposed to amend subdivision (c) of Rule 8006 to allow
a bankruptcy court, bankruptcy appellate panel, or district court to file a statement in support of
or against a direct appeal certification filed by the parties.
Upon a motion by a member, seconded by another, and by voice vote: The Committee
unanimously approved the proposed amendment to Rule 8006 for publication for public
comment.

September 19, 2016

Page 59 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 60 of 497
JUNE 2016 STANDING COMMITTEE – MINUTES
Page 14

RULE 8018.1 –This new rule would help guide district courts in light of the Supreme Court’s
Stern v. Marshall trilogy of cases (Stern, Arkison and Wellness). Proposed Rule 8018.1 would
address a situation where the bankruptcy court has mistakenly decided a Stern claim by allowing
the district court to treat the bankruptcy court’s erroneous final judgment as proposed findings of
fact and conclusions of law to be decided de novo without having to remand the case to the
bankruptcy court.
Upon a motion by a member, seconded by another, and by voice vote: The Committee
unanimously approved the proposed Rule 8018.1 for publication for public comment.
RULE 8023 – The proposed amendment to Rule 8023 would add a cross-reference to Rule 9019
to remind the parties that when they enter a settlement and move to dismiss an appeal, they may
first need to obtain the bankruptcy court’s approval of the settlement first.
Upon a motion by a member, seconded by another, and by voice vote: The Committee
unanimously approved the proposed amendment to Rule 8023 for publication for public
comment.
OFFICIAL FORM 309F – Judge Ikuta said that the Advisory Committee recommended publication
of amendments to five official bankruptcy forms. The first of the five forms was a proposed
0 7
amendment to Official Form 309F. The form currently requires that a creditor1who wants to
r 8, 2
mbe
assert that certain corporate and partnership debts are not dischargeable must file a complaint by
epte
on S
ved the relevant statutory provisions
a specific deadline. A recent district court decision evaluated
rchi
59 a
and concluded that the form is incorrect and1that0no deadline should be imposed. The Advisory
-5 2
o. 5
Committee agreed that the statute n Doe, N
is ambiguous, and therefore proposed that Official Form 309F
Joh
Av
be amended to avoid taking a .position.
n US
i
cited

Upon a motion by a member, seconded by another, and by voice vote: The Committee
unanimously approved the proposed amendment to Official Form 309F for publication for
public comment.
OFFICIAL FORMS 25A, 25B, 25C, AND 26 – Four forms, Official Forms 25A, 25B, 25C (the small
business debtor forms), and 26 (Periodic Report Regarding Value, Operations, and Profitability)
were renumbered as 425A, 425B, 425C and 426 to conform with the remainder of the Forms
Modernization Project, and revised to be easier to understand and more consistent with the
Bankruptcy Code.
Upon a motion by a member, seconded by another, and by voice vote: The Committee
unanimously approved the proposed amendment to Official Forms 25A, 25B, 25C, 26 for
publication for public comment.
Information Items
Judge Ikuta, Professor Elizabeth Gibson, and Professor Michelle Harner discussed the Advisory
Committee’s two information items. The first item was about the status of the Advisory
Committee’s proposal to add a new subdivision (h) to Rule 9037 in response to a suggestion

September 19, 2016

Page 60 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 61 of 497
JUNE 2016 STANDING COMMITTEE – MINUTES
Page 15

from CACM. Judge Ikuta and Professor Gibson explained that although the Advisory
Committee approved an amendment, it decided to delay its recommendation for publication until
the Advisory Committees for Appellate, Criminal and Civil Rules can decide whether to add a
similar procedure to their privacy rules. Professor Harner summarized the second information
item regarding the Advisory Committee’s decision not to recommend any changes at this time to
Rule 4003(c) in response to a suggestion.
REPORT OF THE ADMINISTRATIVE OFFICE
STRATEGIC PLAN FOR THE FEDERAL JUDICIARY – Rebecca Womeldorf discussed the Executive
Committee’s Strategic Plan for the Federal Judiciary which lays out various goals and priorities
for the federal judiciary. She invited members to review this report and offer any input or
feedback that they might have to her or Judge Sutton for inclusion in communications back to the
Executive Committee.
LEGISLATIVE REPORT – There are bills currently pending in the House of Representatives and
Senate intended to prevent proposed Criminal Rule 41 from becoming effective. Members of the
Rules Committee have discussed this proposed rule with various members of Congress to
respond to their concerns and explain the purpose and limited scope of the proposed rule.
CONCLUDING REMARKS
d on

hive
9 arc

017
r 8, 2

be
ptem

Se

Judge Sutton thanked the Reporters for all their5025
impressive work and Rebecca Womeldorf and
the Rules Committee Support Office oe, No. 15 to coordinate the meeting. Professor Coquillette
for helping
D
thanked Judge Sutton again forJallnof his work as Chair of the Standing Committee over the past
. oh
SA v
nU
four years. JudgeciSutton concluded the meeting. The Standing Committee will next meet in
ted i
Phoenix, Arizona, on January 3–4, 2017.
Respectfully submitted,

Rebecca A. Womeldorf
Secretary, Standing Committee

September 19, 2016

Page 61 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 62 of 497

THIS PAGE INTENTIONALLY BLANK

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 62 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 63 of 497

TAB 2
d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 63 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 64 of 497

THIS PAGE INTENTIONALLY BLANK

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 64 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 65 of 497

TAB 2A
d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 65 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 66 of 497

THIS PAGE INTENTIONALLY BLANK

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 66 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 67 of 497

PROPOSED AMENDMENTS TO THE
FEDERAL RULES OF CRIMINAL PROCEDURE
1

Rule 4. Arrest Warrant or Summons on a Complaint

2

(a) Issuance. If the complaint or one or more affidavits

3

filed with the complaint establish probable cause to

4

believe that an offense has been committed and that

5

the defendant committed it, the judge must issue an

6

arrest warrant to an officer authorized to execute it.

7

At the request of an attorney for

5
judge must issue1a-summons, instead of a warrant, to a
o. 5

8
9

cited

do

hive

arc
0259

017
r 8, 2
mbe
the pte
n Segovernment, the

hn
v. Jo

A
person

in US

,N

Doe

authorized to serve it. A judge may issue more

10

than one warrant or summons on the same complaint.

11

If an individual defendant fails to appear in response

12

to a summons, a judge may, and upon request of an

13

attorney for the government must, issue a warrant. If

14

an organizational defendant fails to appear in response

New material is underlined; matter to be omitted is lined
through.

September 19, 2016

Page 67 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 68 of 497

FEDERAL RULES OF CRIMINAL PROCEDURE

2

15

to a summons, a judge may take any action authorized

16

by United States law.

17
18

*****
(c) Execution or Service, and Return.

19

(1) By Whom. Only a marshal or other authorized

20

officer may execute a warrant.

21

authorized to serve a summons in a federal0civil
7
,2 1

22
23
24ited in
c

Any person

er 8
emb
Sept
action may serve a summons.n
do
hive
9 arc
25
5-50
No
(2) Location. . 1 A warrant may be executed,
oe,
hn D
v. Jo
USA

or a

summons served, within the jurisdiction of the

25

United States or anywhere else a federal statute

26

authorizes an arrest.

27

organization under Rule 4(c)(3)(D) may also be

28

served at a place not within a judicial district of

29

the United States.

30
31

September 19, 2016

A summons to an

(3) Manner.
(A) A warrant is executed by arresting the

Page 68 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 69 of 497

3

FEDERAL RULES OF CRIMINAL PROCEDURE

32

defendant.

33

possessing the original or a duplicate

34

original warrant must show it to the

35

defendant. If the officer does not possess

36

the warrant, the officer must inform the

37

defendant of the warrant’s existence and of

38

the offense charged and, at the defendant’s
2017

arrest,

an

officer

,

ber 8

em
Sept

request, must show on
ived the original or a

39

rch

59 a

40
SA

41ited in U
c
42

Upon

hn
v. Jo

502
. 15-

duplicate original warrant to the defendant
, No

Doe

as soon as possible.

(B) A summons is served on an individual

43

defendant:

44

(i)

45

by delivering a copy to the defendant
personally; or

46
47

residence or usual place of abode with

48

September 19, 2016

(ii) by leaving a copy at the defendant’s

a person of suitable age and discretion

Page 69 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 70 of 497

FEDERAL RULES OF CRIMINAL PROCEDURE

4

49

residing at that location and by

50

mailing a copy to the defendant’s last

51

known address.

52

(C) A summons is served on an organization in

53

a judicial district of the United States by

54

delivering a copy to an officer, to a

55

managing or general agent, or to another
017
r 8, 2

56

on S
agent appointed oredlegally authorized to
chiv
ar

mbe

epte

57
SA

58ited in U
c

hn
v. Jo

D

9
5025
. 15-service
o
receive
oe, N

of process. A copyIf the

agent is one authorized by statute and the

59
60

mailed to the organizationorganization’s

61

last known address within the district or to

62

its principal place of business elsewhere in

63

September 19, 2016

statute so requires, a copy must also be

the United States.

Page 70 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 71 of 497

5

FEDERAL RULES OF CRIMINAL PROCEDURE

64

(D) A summons is served on an organization

65

not within a judicial district of the United

66

States:

67

(i)

by delivering a copy, in a manner

68

authorized

by

the

foreign

69

jurisdiction’s law, to an officer, to a

70

managing or general agent, or 2to 7an
01
r 8,

71

on legally authorized
agent appointed or S
ived

mbe

epte

rch

59 a

72
SA

73ited in U
c

hn
v. Jo

502
. 15-

, No to

Doe

receive service of process; or

(ii) by any other means that gives notice,

74
75

(a) stipulated by the parties;

76

(b) undertaken by a foreign authority

77

in response to a letter rogatory, a

78

letter of request, or a request

79

submitted under an applicable

80

September 19, 2016

including one that is:

international agreement; or

Page 71 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 72 of 497

FEDERAL RULES OF CRIMINAL PROCEDURE

81

(c) permitted

by

an

6

applicable

82

international agreement.

83

*****
Committee Note
Subdivision (a). The amendment addresses a gap
in the current rule, which makes no provision for
organizational defendants who fail to appear in response to
a criminal summons. The amendment explicitly limits the
issuance of a warrant to individual defendants who fail7to
201
appear, and provides that the judge may emberwhatever
take 8,
pt
action is authorized by law whenn Se organizational
o an
ved
i
defendant fails to appear.259 archrule does not attempt to
The
-50
o. actions a court may take when an
specify the remedial15
e, N
n Do
h
organizational defendant fails to appear.
v. Jo

cited

A

in US

Subdivision (c)(2). The amendment authorizes
service of a criminal summons on an organization outside a
judicial district of the United States.
Subdivision (c)(3)(C). The amendment makes two
changes to subdivision (c)(3)(C) governing service of a
summons on an organization. First, like Civil Rule 4(h),
the amended provision does not require a separate mailing
to the organization when delivery has been made in the
United States to an officer or to a managing or general
agent. Service of process on an officer or a managing or
general agent is in effect service on the principal. Mailing
is required when delivery has been made on an agent
authorized by statute, if the statute itself requires mailing to
the entity.

September 19, 2016

Page 72 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 73 of 497

7

FEDERAL RULES OF CRIMINAL PROCEDURE

Second, also like Civil Rule 4(h), the amendment
recognizes that service outside the United States requires
separate consideration, and it restricts Rule 4(c)(3)(C) and
its modified mailing requirement to service on
organizations within the United States. Service upon
organizations outside the United States is governed by new
subdivision (c)(3)(D).
These two modifications of the mailing requirement
remove an unnecessary impediment to the initiation of
criminal proceedings against organizations that commit
domestic offenses but have no place of business or mailing
017
r 8, 2
address within the United States. Given pthe brealities of
m e
e te
today’s global economy, electronic on S
ved communication, and
chi
federal criminal practice, 259 amailing requirement should
the r
-50
o. 15
not shield a defendant organization when the Rule’s core
e, N
n Do
Joh
objective—notice of pending criminal proceedings—is
A v.
n US
i
cited accomplished.
Subdivision (c)(3)(D). This new subdivision states
that a criminal summons may be served on an
organizational defendant outside the United States and
enumerates a non-exhaustive list of permissible means of
service that provide notice to that defendant.
Although it is presumed that the enumerated means
will provide notice, whether actual notice has been
provided may be challenged in an individual case.
Subdivision (c)(3)(D)(i). Subdivision (i) notes that
a foreign jurisdiction’s law may authorize delivery of a
copy of the criminal summons to an officer, or to a

September 19, 2016

Page 73 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 74 of 497

FEDERAL RULES OF CRIMINAL PROCEDURE

8

managing or general agent. This is a permissible means for
serving an organization outside of the United States, just as
it is for organizations within the United States. The
subdivision also recognizes that a foreign jurisdiction’s law
may provide for service of a criminal summons by delivery
to an appointed or legally authorized agent in a manner that
provides notice to the entity, and states that this is an
acceptable means of service.
Subdivision (c)(3)(D)(ii). Subdivision (ii) provides
a non-exhaustive list illustrating other permissible means of
giving service on organizations outside the United States,
all of which must be carried out in a manner that “gives
017
r 8, 2
notice.”
mbe
pte
d on

hive
9 arc

Se

Paragraph (a) recognizes that service may be made
25
5-50
No.
by a means stipulated1by the parties.
oe,
nD

. Joh

cited

Av
in US

Paragraph (b) recognizes that service may be made
by the diplomatic methods of letters rogatory and letters of
request, and the last clause of the paragraph provides for
service under international agreements that obligate the
parties to provide broad measures of assistance, including
the service of judicial documents. These include crimespecific multilateral agreements (e.g., the United Nations
Convention Against Corruption (UNCAC), S. Treaty Doc.
No. 109-6 (2003)), regional agreements (e.g., the InterAmerican Convention on Mutual Assistance in Criminal
Matters (OAS MLAT), S. Treaty Doc. No. 105-25 (1995)),
and bilateral agreements.
Paragraph (c) recognizes that other means of service
that provide notice and are permitted by an applicable

September 19, 2016

Page 74 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 75 of 497

9

FEDERAL RULES OF CRIMINAL PROCEDURE

international agreement are also acceptable when serving
organizations outside the United States.
As used in this rule, the phrase “applicable
international agreement” refers to an agreement that has
been ratified by the United States and the foreign
jurisdiction and is in force.

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 75 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 76 of 497

THIS PAGE INTENTIONALLY BLANK

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 76 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 77 of 497

TAB 2B
d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 77 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 78 of 497

THIS PAGE INTENTIONALLY BLANK

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 78 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 79 of 497

FEDERAL RULES OF CRIMINAL PROCEDURE

1

10

Rule 41. Search and Seizure

2

*****

3

(b) Authority to Issue a WarrantVenue for a Warrant

4

Application.

5

enforcement

6

government:

7

At the request of a federal law
officer

or

an

attorney

*****

for

the

017
r 8, 2

be
ptem

Se
(6) a magistrate judge with authority in any district
d on
chive
r

8
9

9a
5025
. 15where , No
activities related
Doe
ohn
.J

Av

10ited in US
c

to a crime may have

occurred has authority to issue a warrant to use

11
12

and to seize or copy electronically stored

13

information located within or outside that district

14

if:

15

(A) the district where the media or information

16

is located has been concealed through

17

September 19, 2016

remote access to search electronic storage media

technological means; or

Page 79 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 80 of 497

11

FEDERAL RULES OF CRIMINAL PROCEDURE

18

(B) in an investigation of a violation of

19

18 U.S.C. § 1030(a)(5), the media are

20

protected

21

damaged without authorization and are

22

located in five or more districts.

23
24

computers

that

have

been

*****
(f)

Executing and Returning the Warrant.

017
r 8, 2

be
ptem

(1) Warrant to Search forved on Seize a Person or
and Se
chi
ar

25

9

5025

26

o
Property. . 15
oe, N
nD
. Joh

Av

27ited in US
c

*****

28
29

must give a copy of the warrant and a

30

receipt for the property taken to the person

31

from whom, or from whose premises, the

32

property was taken or leave a copy of the

33

warrant and receipt at the place where the

34

September 19, 2016

(C) Receipt. The officer executing the warrant

officer took the property. For a warrant to

Page 80 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 81 of 497

FEDERAL RULES OF CRIMINAL PROCEDURE

12

35

use remote access to search electronic

36

storage

37

electronically

38

officer must make reasonable efforts to

39

serve a copy of the warrant and receipt on

40

the person whose property was searched or

41

who possessed the information that 017
was
,2

42

seized

43
SA

44ited in U
c
45
46

media

or

stored

copied.d
ive
h

arc
0259

-5
o. 15
accomplished
oe, N
nD

h
v. Jo

and

seize

or

information,

er 8
emb
Sept
on
Service may

copy
the

be

by any means, including

electronic means, reasonably calculated to
reach that person.
*****
Committee Note

Subdivision (b). The revision to the caption is not
substantive. Adding the word “venue” makes clear that
Rule 41(b) identifies the courts that may consider an
application for a warrant, not the constitutional
requirements for the issuance of a warrant, which must still
be met.

September 19, 2016

Page 81 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 82 of 497

13

FEDERAL RULES OF CRIMINAL PROCEDURE

Subdivision (b)(6). The amendment provides that
in two specific circumstances a magistrate judge in a
district where activities related to a crime may have
occurred has authority to issue a warrant to use remote
access to search electronic storage media and seize or copy
electronically stored information even when that media or
information is or may be located outside of the district.
First, subparagraph (b)(6)(A) provides authority to
issue a warrant to use remote access within or outside that
district when the district in which the media or information
is located is not known because of the use of technology
such as anonymizing software.
2017
,

ber 8

em
Sept

Second, (b)(6)(B) allows aived on
warrant to use remote
h
9 arc
access within or outside5the5 district in an investigation of a
2
5- 0
violation of Doe,U.S.C. § 1030(a)(5) if the media to be
18 No. 1
searchedJohn protected computers that have been damaged
A v. are
n US
ed iwithout authorization, and they are located in many
cit
districts. Criminal activity under 18 U.S.C. § 1030(a)(5)
(such as the creation and control of “botnets”) may target
multiple computers in several districts. In investigations of
this nature, the amendment would eliminate the burden of
attempting to secure multiple warrants in numerous
districts, and allow a single judge to oversee the
investigation.
As used in this rule, the terms “protected computer”
and “damage” have the meaning provided in 18 U.S.C.
§1030(e)(2) & (8).
The amendment does not address constitutional
questions, such as the specificity of description that the

September 19, 2016

Page 82 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 83 of 497

FEDERAL RULES OF CRIMINAL PROCEDURE

14

Fourth Amendment may require in a warrant for remotely
searching electronic storage media or seizing or copying
electronically stored information, leaving the application of
this and other constitutional standards to ongoing case law
development.
Subdivision (f)(1)(C). The amendment is intended
to ensure that reasonable efforts are made to provide notice
of the search, seizure, or copying, as well as a receipt for
any information that was seized or copied, to the person
whose property was searched or who possessed the
information that was seized or copied. Rule 41(f)(3) allows
delayed notice only “if the delay is authorized by statute.”
17
8, 20
See 18 U.S.C. § 3103a (authorizing delayedernotice in
mb
epte
on S
limited circumstances).
ved
i
rch

59 a

cited

September 19, 2016

A

in US

hn
v. Jo

502
. 15-

, No

Doe

Page 83 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 84 of 497

THIS PAGE INTENTIONALLY BLANK

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 84 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 85 of 497

TAB 2C
d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 85 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 86 of 497

THIS PAGE INTENTIONALLY BLANK

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 86 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 87 of 497

15

1

FEDERAL RULES OF CRIMINAL PROCEDURE

Rule 45. Computing and Extending Time

2

*****

3

(c) Additional Time After Certain Kinds of Service.

4

Whenever a party must or may act within a specified

5

period time after service being served and service is

6

made in the manner provided under Federal Rule of

7

Civil Procedure 5(b)(2)(C) (mailing),ember 8,
(D) (leaving
ept

2017

8
9
cited

10

in

S
d on
chive means consented to),
with the clerk), (E), 025(F)r(other
or 9 a
5
. 15, No
Doe
ohn
3v. Jdays are added after the period would
USA

otherwise expire under subdivision (a).
Committee Note
Subdivision (c). Rule 45(c) and Rule 6(d) of the
Federal Rules of Civil Procedure contain parallel
provisions providing additional time for actions after
certain modes of service, identifying those modes by
reference to Civil Rule 5(b)(2). Rule 45(c)—like Civil
Rule 6(d)—is amended to remove service by electronic
means under Rule 5(b)(2)(E) from the forms of service that
allow 3 added days to act after being served. The
amendment also adds clarifying parentheticals identifying
the forms of service for which 3 days will still be added.

September 19, 2016

Page 87 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 88 of 497

FEDERAL RULES OF CRIMINAL PROCEDURE

16

Civil Rule 5 was amended in 2001 to allow service
by electronic means with the consent of the person served,
and a parallel amendment to Rule 45(c) was adopted in
2002. Although electronic transmission seemed virtually
instantaneous even then, electronic service was included in
the modes of service that allow 3 added days to act after
being served. There were concerns that the transmission
might be delayed for some time, and particular concerns
that incompatible systems might make it difficult or
impossible to open attachments. Those concerns have been
substantially alleviated by advances in technology and
widespread skill in using electronic transmission.
7
, 201

A parallel reason for allowing the 3 ptemberdays was
added 8
Sewith the consent
that electronic service was authorized only
d on
hive
9 arc
of the person to be served. 2Concerns about the reliability of
0 5
15-5
No.
electronic transmission might have led to refusals of
oe,
hn D
consent;Jthe 3 added days were calculated to alleviate these
v. o
A
in US
cited concerns.
Diminution of the concerns that prompted the
decision to allow the 3 added days for electronic
transmission is not the only reason for discarding this
indulgence. Many rules have been changed to ease the task
of computing time by adopting 7-, 14-, 21-, and 28-day
periods that allow “day-of-the-week” counting. Adding 3
days at the end complicated the counting, and increased the
occasions for further complication by invoking the
provisions that apply when the last day is a Saturday,
Sunday, or legal holiday.
Eliminating Rule 5(b) subparagraph (2)(E) from the
modes of service that allow 3 added days means that the 3

September 19, 2016

Page 88 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 89 of 497

17

FEDERAL RULES OF CRIMINAL PROCEDURE

added days cannot be retained by consenting to service by
electronic means. Consent to electronic service in
registering for electronic case filing, for example, does not
count as consent to service “by any other means of
delivery” under subparagraph (F).
Electronic service after business hours, or just
before or during a weekend or holiday, may result in a
practical reduction in the time available to respond.
Extensions of time may be warranted to prevent prejudice.

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 89 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 90 of 497

THIS PAGE INTENTIONALLY BLANK

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 90 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 91 of 497

TAB 3
d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 91 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 92 of 497

THIS PAGE INTENTIONALLY BLANK

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 92 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 93 of 497

TAB 3A
d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 93 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 94 of 497

THIS PAGE INTENTIONALLY BLANK

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 94 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 95 of 497

PROPOSED AMENDMENTS TO THE
FEDERAL RULES OF CRIMINAL PROCEDURE 1
1

Rule 12.4. Disclosure Statement

2

(a) Who Must File.
(1) Nongovernmental Corporate Party.

3

Any

4

nongovernmental corporate party to a proceeding

5

in a district court must file a statement that

6

8,
identifies any parent corporationberand20 any
em

17

ed
rchiv

ept

on S

publicly held corporation that owns 10% or more
a
259

7
8

A v.

US
ed in

cit
9

of
Joh

-50

o. 15

e, N
n Do

its stock or states that there is no such

corporation.

10

(2) Organizational Victim. Unless the government

11

shows good cause, it must file a statement

12

identifying any organizational victim of the

13

alleged criminal activity.If an organization is a

14

victim of the alleged criminal activity, the

1

New material is underlined in red; matter to be omitted is
lined through.

September 19, 2016

Page 95 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 96 of 497

2

FEDERAL RULES OF CRIMINAL PROCEDURE

15

government must file a statement identifying the

16

victim.

17

corporation, the statement must also disclose the

18

information required by Rule 12.4(a)(1) to the

19

extent it can be obtained through due diligence.

20

If the organizational victim is a

(b) Time forto Fileing; SupplementalLater Filing. A

21

party must:

22

(1) file the Rule 12.4(a) hived on S within 28 days
statement
arc

e

0259
15 5
.the-defendant’s
afterupon
, No
Doe
ohn
.J

23
24ited in
c

017
r 8, 2

be
ptem

initial appearance; and

U

SA v

(2) promptly file a supplemental statement at a later

25

time promptly if the party learns of any

26

additional required information or any changes

27

in required informationupon any change in the

28

information that the statement requires.
Committee Note
Subdivision (a). Rule 12.4 requires the government
to identify organizational victims to assist judges in
complying with their obligations under the Judicial Code of

September 19, 2016

Page 96 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 97 of 497

FEDERAL RULES OF CRIMINAL PROCEDURE

3

Conduct. The 2009 amendments to Canon 3(C)(1)(c) of
the Judicial Code require recusal only when a judge has “an
interest that could be substantially affected by the outcome
of the proceeding.” In some cases, there are numerous
organizational victims, but the impact of the crime on each
is relatively small. In such cases, the amendment allows
the government to show good cause to be relieved of
making the disclosure statements because the
organizations’ interests could not be “substantially affected
by the outcome of the proceedings.”

cited

September 19, 2016

Subdivision (b). The amendment specifies that the
time for making the disclosures is within 28 days after17
the
0
r 8, 2
initial appearance, and it makes clear that aembe
supplemental
ept
on S
filing is required not only when information that has been
d
hive
disclosed changes, but 0259 arcwhen a party learns of
also
-5
o. 15
additional information that is subject to the disclosure
oe, N
D
John
requirements.
A v.

in US

Because a filing made after the 28 day period may
disclose organizational victims in cases in which none were
previously known or disclosed, the caption and text have
also been revised to refer to a later, rather than a
supplemental, filing.

Page 97 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 98 of 497

THIS PAGE INTENTIONALLY BLANK

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 98 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 99 of 497

TAB 3B
d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 99 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 100 of 497

THIS PAGE INTENTIONALLY BLANK

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 100 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 101 of 497

4
1

FEDERAL RULES OF CRIMINAL PROCEDURE

Rule 45. Computing and Extending Time

2

*****

3

(c) Additional Time After Certain Kinds of Service.

4

Whenever a party must or may act within a specified

5

time after being served and service is made under

6

Federal Rule of CivilCriminal Procedure 49(a)(4)(C),

7

(D), and (E)5(b)(2)(C) (mailing), (D) (leaving 0with
7
,2 1

8

the clerk), or (F) (other meansd
ive

9

are added e,after15 period would otherwise expire
No. the
n Do

h

arc
0259

er 8
emb
Sept
on
consented to),

3 days

-5

A v.

S
10ited in U
c

Joh

under subdivision (a). 2
Committee Note

Rule 49 previously required service and filing “in a
manner provided” in the Civil Rules, and the time counting
provisions in Criminal Rule 45(c) referred to certain forms
of service under Civil Rule 5. A contemporaneous
amendment moves the instructions for filing and service in
criminal cases from Civil Rule 5 into Criminal Rule 49.

2

This rule text reflects amendments adopted by the Supreme
Court and transmitted to Congress on April 28, 2016, which have
an anticipated effective date of December 1, 2016.

September 19, 2016

Page 101 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 102 of 497

FEDERAL RULES OF CRIMINAL PROCEDURE

5

This amendment revises the cross references in Rule 45(c)
to reflect this change.

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 102 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 103 of 497

TAB 3C
d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 103 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 104 of 497

THIS PAGE INTENTIONALLY BLANK

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 104 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 105 of 497

6

FEDERAL RULES OF CRIMINAL PROCEDURE

1

Rule 49. Serving and Filing Papers

2

(a) Service on a Party.

3

(1) What isWhen Required. A party must serve on

4

every other partyEach of the following must be

5

served on every party: any written motion (other

6

than one to be heard ex parte), written notice,

7

designation of the record on appeal, or similar

8

paper.

9
10
11

17
8, 20

(b) How Made. Service must be madeptin ber manner
em the
Se

in
cited
12

d on
hive
9 arc
provided for a civil5action.
025
15No.
e,
n Do
(2) Joh
v. Serving a Party’s Attorney.
USA

Unless the court

orders otherwise, Wwhen these rules or a court

13
14

party represented by an attorney, service must be

15

made on the attorney instead of the party, unless

16

September 19, 2016

order

requires

or

permits

service

on

a

the court orders otherwise.

Page 105 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 106 of 497

FEDERAL RULES OF CRIMINAL PROCEDURE

17

7

(3) Service by Electronic Means.

18

(A) Using the Court’s Electronic Filing System.

19

A party represented by an attorney may

20

serve a paper on a registered user by filing

21

it with the court’s electronic-filing system.

22

A party not represented by an attorney may

23

do so only if allowed by court order or local

24

rule. Service is complete upon filing, but is

25

017
r 8, 2
mbe
pte
not effective if the servingeparty learns that
on S
ved
hi
9 arc
it did 15-5reach the person to be served.
not 025
o.
oe, N

26
nD

. Joh

v
27
USA
ed in
cit

(B) Using Other Electronic Means. A paper

28
29

means that the person consented to in

30

writing.

31

transmission, but is not effective if the

32

serving party learns that it did not reach the

33

September 19, 2016

may be served by any other electronic

person to be served.

Service

is

complete

upon

Page 106 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 107 of 497

8

34

FEDERAL RULES OF CRIMINAL PROCEDURE

(4) Service by Nonelectronic Means. A paper may

35

be served by:

36

(A) handing it to the person;

37

(B) leaving it:
(i)

38

at the person’s office with a clerk or

39

other person in charge or, if no one is

40

in charge, in a conspicuous place in

41

the office; or

42

7
, 201
ber 8
mor the office
(ii) if the person has no Septe
office
on
ved
rchi
59 a
-502
is5closed, at the person’s dwelling or
o. 1
oe, N

43
nD

. Joh

v
44
USA
ed in
cit

usual place of abode with someone of

45

suitable age and discretion who

46

resides there;

47

(C) mailing it to the person’s last known

48

address—in

49

complete upon mailing;

50
51

September 19, 2016

which

event

service

is

(D) leaving it with the court clerk if the person
has no known address; or

Page 107 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 108 of 497

FEDERAL RULES OF CRIMINAL PROCEDURE

(E)

52

9

delivering it by any other means that the

53

person consented to in writing—in which

54

event service is complete when the person

55

making service delivers it to the agency

56

designated to make delivery.

57

(b) Filing.
(1) When Required; Certificate of Service.

58

Any

paper that is required to be served—together

59

017
r 8, 2

mbe
service—must
epte
on S
ived

60

with a certificate of

be filed

61

within a o. 15-5025 time after service. A notice
reasonable
,N

h

9 arc

62
in U
cited

oe
hn D
v. Joof electronic
SA

filing constitutes a certificate of

63

service on any person served by the court’s

64

electronic-filing system.

65
66

(2) Means of Filing.
(A) Electronically.

A

paper

is

filed

67
68

electronic-filing system.

69

September 19, 2016

electronically by filing it with the court’s

and password of an attorney of record,

The user name

Page 108 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 109 of 497

10

FEDERAL RULES OF CRIMINAL PROCEDURE

70

together with the attorney’s name on a

71

signature block, serves as the attorney’s

72

signature. A paper filed electronically is

73

written or in writing under these rules.
(B) Nonelectronically.

74

A paper not filed

75

electronically is filed by delivering it:

76

(i)

77

(ii) to a judge who agrees to accept it for

to the clerk; or
017
r 8, 2

be
filing, and who mustptem
e then
on S
ed
rchiv
59 a
2date on the paper and
-50
filing
o. 15

78
79

e, N
n Do

. Joh

v
80
USA
ed in
cit

81

note the

promptly

send it to the clerk.

(3) Means Used by Represented and Unrepresented

82
83

(A) Represented Party. A party represented by

84

an attorney must file electronically, unless

85

nonelectronic filing is allowed by the court

86

for good cause or is allowed or required by

87

September 19, 2016

Parties.

local rule.

Page 109 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 110 of 497

FEDERAL RULES OF CRIMINAL PROCEDURE

(B) Unrepresented

88

Party.

A

party

11

not

89

represented by an attorney must file

90

nonelectronically, unless allowed to file

91

electronically by court order or local rule.

92

(4) Signature.

Every written motion and other

93

paper must be signed by at least one attorney of

94

record in the attorney’s name—or by a person

95

filing a paper if the person is not represented by

7
, 201
ber 8
mthe signer’s
an attorney. The paper mustSstate
epte
on
ved
hi
9 arc
address, o. 15-5025
e-mail address, and telephone number.
,N
Doe
ohn
.J

96
97
v
98
USA
ed in
cit

Unless a rule or statute specifically states

99

otherwise, a pleading need not be verified or

100

accompanied by an affidavit. The court must

101

strike an unsigned paper unless the omission is

102

promptly corrected after being called to the

103

attorney’s or person’s attention.

104
105

September 19, 2016

(5) Acceptance by the Clerk. The clerk must not
refuse to file a paper solely because it is not in

Page 110 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 111 of 497

12

FEDERAL RULES OF CRIMINAL PROCEDURE

106

the form prescribed by these rules or by a local

107

rule or practice.

108

(c) Service and Filing by Nonparties. A nonparty may

109

serve and file a paper only if doing so is required or

110

permitted by law. A nonparty must serve every party

111

as required by Rule 49(a), but may use the court’s

112

electronic-filing system only if allowed by court order

113

or local rule.

114

(d) Notice of a Court Order. When
n
ed
rchiv

o

017
r 8, 2

e
emb
theptcourt
Se

issues an

9a

115

order on any . 15-5025
post-arraignment motion, the clerk
, No

116
in U
cited

oe
hn D
v. Jo provide
must
SA

notice in a manner provided for in a civil

117
118

required by Rule 49(a). A party also may serve notice

119

of the entry by the same means. Except as Federal

120

Rule of Appellate Procedure 4(b) provides otherwise,

121

the clerk’s failure to give notice does not affect the

122

September 19, 2016

action serve notice of the entry on each party as

time to appeal, or relieve—or authorize the court to

Page 111 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 112 of 497

FEDERAL RULES OF CRIMINAL PROCEDURE

13

123

relieve—a party’s failure to appeal within the allowed

124

time.

125

(d) Filing. A party must file with the court a copy of any

126

paper the party is required to serve. A paper must be

127

filed in a manner provided for in a civil action.

128

(e) Electronic Service and Filing. A court may, by local

129

rule, allow papers to be filed, signed, or verified by

130

electronic means that are consistent with any technical

131
132
133
in
cited

017
r 8, 2
mbe
standards established by the JudicialptConference of
e e
on S
ved
hi
9 arc
the United States.5-5025
A local rule may require electronic
o. 1
e, N
n Do
h
v. Jo
filing only if reasonable exceptions are allowed. A
USA

134

paper filed electronically in compliance with a local

135

rule is written or in writing under these rules.
Committee Note
Rule 49 previously required service and filing in a
“manner provided” in “a civil action.” The amendments to
Rule 49 move the instructions for filing and service from
the Civil Rules into Rule 49. Placing instructions for filing
and service in the criminal rule avoids the need to refer to
two sets of rules, and permits independent development of
those rules.
Except where specifically noted, the
amendments are intended to carry over the existing law on

September 19, 2016

Page 112 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 113 of 497

14

FEDERAL RULES OF CRIMINAL PROCEDURE

filing and service and to preserve parallelism with the Civil
Rules.
Additionally, the amendments eliminate the provision
permitting electronic filing only when authorized by local
rules, moving—with the Rules governing Appellate, Civil,
and Bankruptcy proceedings—to a national rule that
mandates electronic filing for parties represented by an
attorney with certain exceptions. Electronic filing has
matured. Most districts have adopted local rules that
require electronic filing by represented parties, and allow
reasonable exceptions as required by the former rule. The
time has come to seize the advantages of electronic filing
by making it mandatory in all districts for a party
represented by an attorney, except that nonelectronic filing
may be allowed by the court for good cause, or allowed7or
01
r 8, 2
mbe
e
required by local rule.
Sept

d on
hive
9 arc from former Rule 49(a)
Rule 49(a)(1). The 0language
5 25
. 15NoRule 49(a)(1), except for one change.
is retained in oe,
new
nD
The A v. Joh
new phrase, “Each of the following must be served on
n US
ted ievery party” restores to this part of the rule the passive

ci

construction that it had prior to restyling in 2002. That
restyling revised the language to apply to parties only,
inadvertently ending its application to nonparties who, on
occasion, file motions in criminal cases. Additional
guidance for nonparties appears in new subdivision (c).
Rule 49(a)(2). The language from former Rule 49(b)
concerning service on the attorney of a represented party is
retained here, with the “unless” clause moved to the
beginning for reasons of style only.
Rule 49(a)(3) and (4). Subsections (a)(3) and (4) list
the permissible means of service. These new provisions
duplicate the description of permissible means from Civil
Rule 5, carrying them into the criminal rule.

September 19, 2016

Page 113 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 114 of 497

FEDERAL RULES OF CRIMINAL PROCEDURE

15

By listing service by filing with the court’s electronicfiling system first, in (3)(A), the rule now recognizes the
advantages of electronic filing and service and its
widespread use in criminal cases by represented defendants
and government attorneys.
But the e-filing system is designed for attorneys, and
its use can pose many challenges for pro se parties. In the
criminal context, the rules must ensure ready access to the
courts by all pro se defendants and incarcerated individuals,
filers who often lack reliable access to the internet or email.
Although access to electronic filing systems may expand
with time, presently many districts do not allow e-filing by
unrepresented defendants or prisoners.
Accordingly,
subsection (3)(A) provides that represented parties may
serve registered users by filing with the court’s electronic017
r 8, 2
mbeso only if
filing system, but unrepresented parties Septe do
may
n
allowed by court order or local rule.ed o
v
rchi
9a

5025

15No.

Subparagraph (3)(B) permits service by “other
e,
n Do
v. J means,” such as email, that the person served
electronicoh
A
in US
cited consented to in writing.
Both subparagraphs (3)(A) and (B) include the
direction from Civil Rule 5 that service is complete upon efiling or transmission, but is not effective if the serving
party learns that the person to be served did not receive the
notice of e-filing or the paper transmitted by other
electronic means.
The language mirrors Civil
Rule 5(b)(2)(E). But unlike Civil Rule 5, Criminal Rule 49
contains a separate provision for service by use of the
court’s electronic filing system.
Subsection (a)(4) lists a number of traditional,
nonelectronic means of serving papers, identical to those
provided in Civil Rule 5.

September 19, 2016

Page 114 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 115 of 497

16

FEDERAL RULES OF CRIMINAL PROCEDURE

Rule 49(b)(1). Filing rules in former Rule 49
appeared in subdivision (d), which provided that a party
must file a copy of any paper the party is required to serve,
and required filing in a manner provided in a civil action.
These requirements now appear in subdivision (b).
The language requiring filing of papers that must be
served is retained from former subdivision (d), but has been
moved to subsection (1) of subdivision (b), and revised to
restore the passive phrasing prior to the restyling in 2002.
That restyling departed from the phrasing in Civil
Rule 5(d)(1) and inadvertently limited this requirement to
filing by parties.
The language in former subdivision (d) that required
filing “in a manner provided for in a civil action” has 017
been
r 8, 2
mbe
replaced in new subsection (b)(1) by language drawn from
e
Sept
Civil Rule 5(d)(1). That provisionivusednto state “Any paper
ed o
rch
59 a
. . . that is required to be5served—together with a certificate
- 02
15
of service—must No. filed within a reasonable time after
e, be
n Do
service.”Joh A contemporaneous amendment to Civil
A v.
n US
ed iRule 5(d)(1) has subdivided this provision into two parts,
cit
one of which addresses the Certificate of Service.
Although the Criminal Rules version is not subdivided in
the same way, it is intended to have the same meaning as
the Civil Rules provision from which it was drawn.
The last sentence of subsection (b)(1), which states
that a notice of electronic filing constitutes a certificate of
service on a party served by using the court’s electronicfiling system, mirrors the contemporaneous amendment to
Civil Rule 5. When service is not made by filing with the
court’s electronic-filing system, a certificate of service
must be filed.
Rule 49(b)(2). New subsection (b)(2) lists the three
ways papers can be filed. (A) provides for electronic filing

September 19, 2016

Page 115 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 116 of 497

FEDERAL RULES OF CRIMINAL PROCEDURE

17

using the court’s electronic-filing system and includes a
provision, drawn from the Civil Rule, stating that the user
name and password of an attorney of record serves as the
attorney’s signature. The last sentence of subsection
(b)(2)(A) contains the language of former Rule 49(d),
providing that e-filed papers are “written or in writing,”
deleting the words “in compliance with a local rule” as no
longer necessary.
Subsection (b)(2)(B) carries over from the Civil Rule
two nonelectronic methods of filing a paper: delivery to the
court clerk and delivery to a judge who agrees to accept it
for filing.
Rule 49(b)(3). New subsection (b)(3) provides
instructions for parties regarding the means of filing2017be
to
r 8,
mbe
used, depending upon whether the party isptrepresented by
e
Se
an attorney. Subsection (b)(3)(A) on
ved requires represented
rchi
5 a
parties to use the court’s 9electronic-filing system, but
-502
15
provides that Doe, No.
nonelectronic filing may be allowed for good
n
Jo
cause, vandhmay be required or allowed for other reasons by
A .
n US
i
cited local rule. This language is identical to that adopted in the
contemporaneous amendment to Civil Rule 5.
Subsection (b)(3)(B) requires unrepresented parties to
file nonelectronically, unless allowed to file electronically
by court order or local rule. This language differs from that
of the amended Civil Rule, which provides that an
unrepresented party may be “required” to file electronically
by a court order or local rule that allows reasonable
exceptions. A different approach to electronic filing by
unrepresented parties is needed in criminal cases, where
electronic filing by pro se prisoners presents significant
challenges. Pro se parties filing papers under the criminal
rules generally lack the means to e-file or receive electronic

September 19, 2016

Page 116 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 117 of 497

18

FEDERAL RULES OF CRIMINAL PROCEDURE

confirmations, yet must be provided access to the courts
under the Constitution.
Rule 49(b)(4). This new language requiring a
signature and additional information was drawn from Civil
Rule 11(a). The language has been restyled (with no intent
to change the meaning) and the word “party” changed to
“person” in order to accommodate filings by nonparties.
Rule 49(b)(5). This new language prohibiting a clerk
from refusing a filing for improper form was drawn from
Civil Rule 5(d)(4).
Rule 49(c). This provision is new. It recognizes that
in limited circumstances nonparties may file motions in
criminal cases. Examples include representatives 2017
of the
,
media challenging the closure of proceedings,r 8
mbe material
epte
witnesses requesting to be deposedon S
ved under Rule 15, or
chi
victims asserting rights50259 ar Rule 60. Subdivision (c)
under
. 5
permits nonparties oto1 file a paper in a criminal case, but
e, N
n Do
onlyAwhenh required or permitted by law to do so. It also
v. Jo
n US
i
cited requires nonparties who file to serve every party and to use
means authorized by subdivision (a).
The rule provides that nonparties, like unrepresented
parties, may use the court’s electronic-filing system only
when permitted to do so by court order or local rule.
Rule 49(d). This provision carries over the language
formerly in Rule 49(c) with one change. The former
language requiring that notice be provided “in a manner
provided for in a civil action” has been replaced by a
requirement that notice be served as required by Rule 49(a).
This parallels Civil Rule 77(d)(1), which requires that the
clerk give notice as provided in Civil Rule 5(d).

September 19, 2016

Page 117 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 118 of 497

THIS PAGE INTENTIONALLY BLANK

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 118 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 119 of 497

TAB 4
d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 119 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 120 of 497

THIS PAGE INTENTIONALLY BLANK

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 120 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 121 of 497

TAB 4A
d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 121 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 122 of 497

THIS PAGE INTENTIONALLY BLANK

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 122 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 123 of 497

MEMO TO:

Criminal Rules Committee

FROM:

Professors Sara Sun Beale and Nancy King, Reporters

RE:

Report from 2255 Rule 5 Subcommittee

DATE:

September 1, 2016

At its April 2016 meeting, the Committee discussed a letter from Judge Richard Wesley
expressing concern about inconsistent district court interpretations of Rule 5(d) of the Rules
Governing Section 2255 Proceedings. Rule 5(d) presently provides: “The moving party may
submit a reply to the respondent’s answer or other pleading within a time fixed by the judge.”
This subsection was added by amendment in 2004, and its legislative history suggests that it
was intended to give all inmates who file an application for relief under Section 2255 the
017
opportunity to file a reply to the government’s responsive pleading. The opportunity to reply
r 8, 2
mbe the government’s
may be essential to applicants, particularly as some issues are first epte in
raised
on S
ved
response. Several district courts, however, have read Rulei 5 differently, as leaving the
rch
59 a
-502
opportunity to file a reply up to the court’s discretion.
. 15
o

oe, N

nD
Committee Members discussed whether Rule 5(d) should be amended to make it even
. Joh
SA v
clearer that inmatesitarein U
entitled to file a reply, whether to add to the Rule a presumptive
c ed
deadline for filing a reply, and whether similar changes are needed in Rule 5(e) of the Rules
Governing Section 2254 Proceedings, a provision added in 2004 contemporaneously with the
addition of Rule 5(d) to the 2255 Rules. Judge Molloy appointed a Subcommittee with Judge
Kemp as Chair to consider these matters further. The Subcommittee met by telephone on
August 18, after receiving a Reporter’s memorandum and research from the Rules Office.
Members expressed doubt about whether an amendment was warranted, and the Subcommittee
agreed that the reporters should explore steps other than amendment that might be available for
addressing case law that has misinterpreted the rule. The Subcommittee also wanted to get
input from the Committee at the September meeting. This memorandum summarizes the
information provided to the Subcommittee, the Subcommittee’s deliberations, and new
information obtained following the telephone conference.

In light of the information in this memorandum and its attachments, the Subcommittee
seeks feedback from the Committee regarding the following options: (1) proposing an
amendment to Rule 5(d); (2) taking one or more steps other than amendment to address the
decisions denying a right to reply; (3) placing the issue on the Committee’s study agenda to
evaluate again at a later time; or (4) taking no action.
Section I provides the essential background regarding both Rule 5 of the 2255 Rules and
Rule 5 of the 2254 Rules, and the present application of these provisions. Section I A. discusses
1

September 19, 2016

Page 123 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 124 of 497

their text and legislative history. Section 1B. reviews commentary and case law construing the
relevant provisions. Section I C. summarizes research into the local rules and standing orders
governing replies in 2255 and 2254 proceedings and the practices in various districts.
The remainder of the memorandum considers possible Committee action. Section II
reviews the considerations for and against an amendment to Rule 5(d) that would clarify the
right to reply. We also discuss several potential avenues to address inconsistent interpretation
in the district courts that would not involve amending the Rule. Section III considers the
features of a possible amendment that would clarify the right to reply, should the Committee
decide to pursue an amendment. Finally, Section IV addresses whether the same treatment is
warranted for Rule 5(e) of the Rules Governing Section 2254 Proceedings.
This memorandum does not address whether to include a new presumptive deadline for
filing a reply as part of an amendment to Rule 5 or what that deadline might be. The
Subcommittee chose not to discuss these issues, concluding that they were not relevant to the
choice of action required to clarify the right to reply; they could be addressed later if the
Committee chose to pursue an amendment.
I.

Background on Rule 5 and the Division over its meaning.
A. The text, legislative history, committee note, and cases construing Rule 5(d)

The Subcommittee agreed that that the text, legislative history, and committee note all
support the view that the current rule gives prisoners the right to file a reply.2017
8,
er

emb

1. The text

ed

rchiv

ept
on S

9a
Rule 5(d) presently provides (emphasis5added): “The moving party may submit a reply
5025
.1 , No
to the respondent’s answer or other pleading within a time fixed by the judge.” The Federal
Doe
ohnto indicate that the court or party has the authority to take
Rules generally use the termA“may”
v. J
US
ed in of the style consultants, the text is now clear: it gives the prisoner a
some action. In theitview
c
right to file a reply, and any effort to clarify the language would be problematic. In an email to
the reporters, Professor Kimble explained:

The style consultants agree that the rule should not be changed. The word “may”
means that the party is permitted to do it. That’s what “may” means. Lower
courts that require the court’s permission are acting contrary to what the rule
says. What’s more, changing this “may” has implications for other uses of
“may.” Now do we have to worry that all those other uses of “may” without
some kind of intensifier don’t really grant permission?
2. The legislative history of the 2254 and 2255 Rules
The legislative history of the rules provides strong support for the view that the
Criminal Rules Committee and the Standing Committee intended the amendment to give
prisoners the right to file a reply. These provisions were first proposed as amendments to the
2254 and 2255 Rules in 2002, by a Subcommittee of the Criminal Rules Committee chaired by
Judge David Trager. Prior to the amendment, the 2254 and 2255 Rules made no mention of a
reply (or traverse). The 2004 amendment added the provision addressing the reply, and
changed the title of the rule from “Answer; contents” to “The Answer and the Reply.”
2

September 19, 2016

Page 124 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 125 of 497

When the 2004 amendments to 2254 Rule 5 and 2255 Rule 5 were originally proposed,
committee members were divided on the question whether allowing prisoners to file a reply
was a substantive change, but unanimous in concluding that prisoners “should be provided
with that opportunity.” 1 After discussion, the Committee voted unanimously to include the new
provision in the amendment proposed for publication. 2
At the Standing Committee meeting when the revisions to the habeas rules were
proposed for publication, Judge Trager explained that “Rule 5 of both sets of rules would be
amended to give the petitioner or moving party a right to reply to the government’s answer or
other pleading,” which he said most judges already allowed (emphasis added). 3 The Standing
Committee unanimously approved these provisions (along with all of the other changes to the
habeas rules proposed at the same time). 4
At the conclusion of the public comment period, the Committee revisited the parallel
provisions in the 2254 and 2255 Rules, and the minutes explicitly recognize that the revised
rules would give prisoners in both 2254 and 2255 cases a “right” to file a reply. The Committee
first took up Rule 5(e) in the 2254 Rules. The minutes state (emphasis added):
The Committee discussed proposed Rule 5(e) that would provide the petitioner
with the right to file a response to the respondent’s answer. Judge Miller
moved, and Judge Trager seconded, a motion that the rule remain as published,
that is, petitioners would have the right to reply in all cases. The motion carried
017
by a vote of 5 to 3. 5
r 8, 2
e

temb

ep
The Committee then turned its attention to the 2255 Rules. dTheSminutes state (emphasis
on
ve
i
arch
added):
0259
5

. 15-

The Committee had previously e, No
o discussed the proposed amendment to proposed
hn D
v. Jo
Rule 5(e), of the §U2254 rules that would provide the petitioner with the right to
A
in S
file a response to the respondent’s answer. That proposal had been approved by
cited
a vote of 5 to 3, supra. The Committee agreed that the approach should be
applied to Rule 5(d) of the § 2255 rules. 6

The Committee’s view was informed by its comprehensive revision of the habeas rules, which
also included the requirement that the government’s answer raise procedural bars and the
statute of limitations. 7 It is understandable that the Committee would want to guarantee the
1

In his report describing the work of the Habeas Corpus Subcommittee, Judge Trager stated that the subcommittee
draft “provided that the petitioner or moving party may file a reply within a time fixed by the judge.” Agenda Book,
Criminal Rules Meeting, April 2002, at 164. He observed that he did not view this as a substantive change because
most judges already provided this opportunity. But he also recognized that “some may feel otherwise.” Id. The
minutes of the Committee meeting report that Judge Bucklew did view this as a substantive change, but she stated
that “the petitioner and moving party should be provided with that opportunity.” Minutes of Advisory Committee
on Criminal Rules, April 10-11, 2002, at 7.
2
Id.
3
Comm. on Rules of Practice and Procedure, Minutes, June 10-1, 2002, at 26-27.
4
Id.
5
Minutes of Advisory Committee on Criminal Rules, April 28-29, 2003, at 4.
6
Id. at 6.
7
In “Changes Made After Publication and Comments,” the Committee observed that another revision to Rule 5
for the first time required an answer to address procedural bars and the statute of limitations:

3

September 19, 2016

Page 125 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 126 of 497

opportunity to reply to new issues such as these that would be raised by the government’s
responsive pleading.
At no time during the process was there any suggestion made that these amendments
did not grant a right to reply. The Rules’ final progress through Conference, the Court, and
Congress was uneventful.
3. The Committee Note
The Committee Note does not use the term “right.” It refers, instead, to the movant’s
“opportunity to file a reply,” stating:
[R]evised Rule 5(d) adopts the practice in some jurisdictions giving the movant
an opportunity to file a reply to the respondent's answer. Rather than using
terms such as “traverse,” see 28 U.S.C. Sec. 2248, to identify the movant's
response to the answer, the rule uses the more general term “reply.” The Rule
prescribes that the court set the time for such responses, and in lieu of setting
specific time limits in each case, the court may decide to include such time
limits in its local rules.
Judge Wesley’s letter notes that in Anderson v. United States, 612 F. App’x 45 (2d Cir.
2015), the government in its brief maintained that Rule 5 does not give prisoners a right to file a
reply brief, a claim the government argued was supported by case law as well as the
Committee Note. The Subcommittee concluded that the portions of the Committee Note cited
017
r 8, 2
8
mbe
interpretation. The quoted
by the government in Anderson do not support the government’s epte
S
language fails as support for the government’s interpretationd on
ve of Rule 5 both because it appears
i
arch
in the Note accompanying the initial 1976 adoption 59 the Rule, not the 2004 provision, and
-502 of
o. 15
e, N
also because it speaks only to whetherothe movant must file a reply in order to avoid
nD
h
dismissal, 9 not whether the A v. Jomust permit a filing. In other words, the rule was intended to
court
US
cited

in

“The Note was also changed to reflect that there has been a potential substantive change from
the current rule, to the extent that the published rule now requires that the answer address
procedural bars and any statute of limitations. The Note states that the Committee believes the
new language reflects current law.”
8
The government quoted two passages: (1) “[t]here is nothing in 2255 which corresponds to the . . . requirement
of a traverse to the answer. . . .” and (2) “As under rule 5 of the 2254 rules, there is no intention here that such a
traverse be required, except under special circumstances.” Br. for Gov’t at 14–15, Anderson v. United States, 612
F. App’x 45 (2d Cir. 2015) (No. 13-934) (emphasis in government’s brief) (quoting Advisory Committee Notes to
Rule 5, Rules Governing Section 2255 Proceedings).
9
Apparently, the issue that prompted the initial note language in the 2255 context was a statute that applied in
2254 cases at the time. Until the 2004 amendment to Rule 5, the 2254 rules “omitted any reference to a traverse or
reply.” RANDY HERTZ & JAMES S. LIEBMAN, 1 FEDERAL HABEAS CORPUS PRACTICE AND PROCEDURE, § 17.1 (7th
ed. 2015). The 1976 Committee Note indicates that Rule 5 was intended to address the “difficulty” that had been
caused by 28 U.S.C. §2248, which provided that “the allegations of a return [answer] . . if not traversed, shall be
accepted as true except to the extent that the judge finds from the evidence that they are not true.” (emphasis
added). Liebman and Hertz explain: “Although the Habeas Rules dispensed with the requirement of a traverse
(except in successive petition situations), they did not forbid such a pleading, and the Advisory Committee Notes
endorsed a traverse or amendment where ‘it [would] serve a truly useful purpose’ or was ‘called for by the contents
of the answer’ filed by respondent.” See also Charles Alan Wright, Procedure for Habeas Corpus, 77 F.R.D. 227,
242 (1978) (explaining that under Rule 5 “No traverse to the answer is required, and the former statutory rule that
the allegations of the return are assumed to be true until impeached has been abandoned.”).

4

September 19, 2016

Page 126 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 127 of 497

clarify that an inmate was not required to file a traverse or reply; it said nothing about whether
a court must allow a traverse or reply to be filed.
The Committee Note accompanying the 2004 addition of subsection (d) in 2255 Rule 5
is consistent with the intent of the Criminal Rules Committee, repeated several times during the
drafting and adoption process, that the amendment was to confer the right to file a reply. The
language of the Note even highlights that the amendment codified a practice not followed in
every jurisdiction: “revised Rule 5(d) adopts the practice in some jurisdictions giving the
movant an opportunity to file a reply to the respondent's answer.”
B. Commentary and Cases Interpreting the Rule
1. Cases holding there is no right to reply in a 2255 case.
Several district court opinions holding that prisoners have no right to file a reply to the
government’s answer or responsive pleading in a 2255 case are collected in the government’s
brief filed in Anderson v. United States, 612 F. App’x 45 (2d Cir. 2015). That brief states:
Numerous courts across the country have confirmed that Rule 5(d) does not
require a judge to allow a Section 2255 movant to file a reply. See, e.g.,
Simmons v. United States, 2014 WL 4628700, at *1 (E.D. N.Y. Sept. 15, 2014)
(stating that the Rule’s “plain language does not mandate a reply”); Terrell v.
United States, 2014 WL 1203286, at *1 (W.D. N.C. Mar. 24, 2014) (stating that
7
while a petitioner “may” file a reply, there is “no [such] absolute right0.1. . in an
r 8, 2
mbe
action brought under § 2255”). Instead, “[w]hether to allowpthe moving party to
e te
on S
file a reply brief is within the Court’s discretion.” dUnited States v. Martinez,
ve
i
arch
2013 WL 3995385, at *2 (D. Minn.15-50255, 2013). “When a court does not
Aug. 9
.
request, permit, or require the oe, No
additional argument that would be contained in a
nD
h
reply brief, § 2255 SA v. Jo
petitioners are not prejudiced by denial of an opportunity to
nU
file such a cited i United States v. Crittenton, 2008 WL 343106, at *2 (E.D. Pa.
brief.”
Feb. 7, 2008). This principle holds even when a petitioner does not receive the
Government’s opposition. United States v. King, 184 F.R.D. 567, 568 (E.D. Va.
1999) (holding that though “neither [the petitioner] nor his attorneys were ever
served with the government’s response,” no “mistake or excusable neglect
occurred” because “a § 2255 petitioner has no right to file a reply to the
government’s response”).
Our research identified fifteen additional post-2004, district court decisions that state or hold
that there is no right to file a reply under Rule 5(d). 10
10

Note that many of these decisions cite cases included in the government’s brief in Anderson, quoted
above in the text, especially Crittenden and Martinez. United States v. Griffin, 2015 WL 1925821, at *1 (D.
Minn. Apr. 28, 2015) (following Martinez and Crittendon); Harris v. United States, 2015 WL 5714552 at *2
(W.D. N.C. Sept. 29, 2015) (stating that whether to allow reply is within court’s discretion, finding “a Reply
would not aid the decision-making process”); Nix v. United States, No. 1:15CV79-LG, 2015 WL 2137296, at
*1 (S.D. Miss. May 7, 2015) (stating “while Rule 5(d) of the Rules Governing Section 2255 Cases states that a
Petitioner may submit a reply, it does not require the Court to wait on a reply before ruling”); Sifford v. United
States, 2014 WL 114671, at *1 n.1 (W.D.N.C. Jan. 10, 2014) (concluding that whether to allow reply is within
court’s discretion, denying Rule 59 motion); United States v. Benson, No. CIV. 13-1935 DSD, 2014 WL
1478438, at *1 n.1 (D. Minn. Apr. 16, 2014) (refusing to consider reply, citing McElrath); Argraves v. United
States, No. 3:11CV1421 SRU, 2013 WL 1856527, at *2 (D. Conn. May 2, 2013) (noting reply briefs are not

5

September 19, 2016

Page 127 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 128 of 497

There appear to be three principal rationales that judges have referenced when finding
no right to file a reply in 2255 Rule 5(d) or 2254 Rule 5(e).
First, although most of these cases were decided after the 2004 amendment, some
appear to have been influenced by pre-amendment law and policy. 11 It is possible that
unrepresented inmates and boilerplate orders mean that some judges take longer to notice
changes in 2254 and 2255 Rules, and continue to rely on outdated authority.
Second, several decisions relied on a local rule governing motions generally—rather
than 2255 cases— that require a movant to obtain leave of court to file a reply. 12
Finally, the phrasing of the rule also appears to be contributing to the confusion. By
stating that applicant or petitioner “may submit a reply to the respondent’s answer or other
pleading within a time fixed by the judge,” the rule could suggest that the judge has the
discretion to determine whether to set any time for a reply, or to determine none is needed. 13
For example, after quoting Rule 5(e) adding emphasis to the word “may,” one judge explained:
required under general local rule); United States v. Dixon, No. CIV. 12-1914 JNE, 2013 WL 1408577, at *4 n.4
(D. Minn. Apr. 8, 2013) (quoting Moreno and Crittendon, concluding that a reply is not necessary and denying
extension of time to file a reply); United States v. Sturgis, No. CIV. 13-945 JNE, 2013 WL 3799848, at *6 (D.
Minn. July 22, 2013) (relying on Crittendon); United States v. Moreno, No. CIV. 12-2968 ADM, 2013 WL
1104766, at *1 (D. Minn. Mar. 18, 2013) (stating the Government's Response does not give the Defendant an
automatic right to reply, relying on McElrath); Rosario v. Akpore, 967 F. Supp. 2d 1238, , 2017 (N.D. Ill.
1242 n.2
b r8
2013); United States v. Cleve-Allan George, No. CR 2003-020, 2011 WL 5110409, ate*1 n.1 (D.V.I. Oct. 26,
ptem
Se
2011) (considering untimely reply, but noting with approval the Crittendon court’s statement “[w]hen a court
d on
chive be contained in a reply brief, § 2255
does not request, permit, or require the additional argument 59 awould
that r
502
petitioners are not prejudiced by denial of an opportunity to file such a brief”); Coleman v. United States, No.
. 15, No
CIV 09-6330, 2011 WL 149863, at *2ohn Doe
(D.N.J. Jan. 18, 2011) (“We join those courts in concluding that a
J
petitioner does not have a rightSA submit a reply”); United States v. McElrath, Crim. No. 03–235(JNE), Civ. No.
to v.
in U
ed 1657453, at *2 (D. Minn. June 11, 2009) (denying opportunity to file reply brief,
08–5291(JNE), 2009cWL
it
relying on Crittenton and pre-2004 authority); Arias v. United States, No. 06-381, 2007 WL 2119050, at *1
(M.D. FL July 20, 2007) (relying on general local rule that allows a reply by a movant with leave of court); Shi
Arias v. United States, No. 06-381, 2007 WL 2119050, at *1 (M.D. FL July 20, 2007) (relying on general local
rule that allows a reply by a movant with leave of court); Shipley v. United States, No. CIV 07-2051, 2007 WL
4372996, at *1 (W.D. Ark. Dec. 12, 2007) (§ 2255 petitioners are not prejudiced by denial of an opportunity to
file replies when courts do not solicit such replies, grant leave to file such replies or find additional argument
necessary to dispose § 2255 motions).
For similar statements in a dozen additional 2254 cases, see notes 36 & 37, infra.
11
E.g., United States v. McElrath, Crim. No. 03–235(JNE), Civ. No. 08–5291(JNE), 2009 WL 1657453, at *2 (D.
Minn. June 11, 2009); and the three cases relying on McElrath: Benson, Martinez, and Sifford.
12
Examples include United States v. Crittenton, 2008 WL 343106, at *2 (E.D. Pa. Feb. 7, 2008); Shipley v.
United States, No. 07-2051, 2007 WL 4372996, at *1 (W.D. Ark. Dec.12, 2007); Arias v. United States, No. 06381, 2007 WL 2119050, at *1 (M.D. Fla. July 20, 2007). Arias, relying on a local rule in M.D. Fla., was cited as
authority in Shipley and Crittendon. Crittendon was cited as authority for finding no right to reply in a total of six
cases: McElrath, Martinez, Griffin, Sturgis, Dixon, and United States v. Cleve-Allan George, No. CR 2003-020,
2011 WL 5110409, at *1 n.1 (D.V.I. Oct. 26, 2011) (considering untimely reply, but noting with approval the
Crittendon court’s statement “[w]hen a court does not request, permit, or require the additional argument that
would be contained in a reply brief, § 2255 petitioners are not prejudiced by denial of an opportunity to file such a
brief.”)
13
Examples of decisions emphasizing the word “may” when finding the rule grants discretion include Nix v.
United States, No. 1:15CV79-LG, 2015 WL 2137296, at *1 (S.D. Miss. May 7, 2015) and Sifford v. United
States, 2014 WL 114671, at *1 n.1 (W.D.N.C. Jan. 10, 2014) (whether to allow reply is within court’s discretion,
denying Rule 59 motion). See also United States v. Andrews, No. 12 C 6208, 2012 WL 6692159, at *2 (N.D. Ill.

6

September 19, 2016

Page 128 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 129 of 497

It has never been clear whether that means a habeas petitioner has the right to
submit a reply or whether it means that the judge may order such a reply as
needed. In an abundance of caution this Court has most often proceeded with
the former reading, but as the text reflects that does not appear to be called for
here.
Rosario v. Akpore, 967 F. Supp. 2d 1238, 1242 n.2 (N.D. Ill. 2013).
2. Commentary
Treatises and commentary that discuss the amendment to 2255 Rule 5 and 2254 Rule 5
generally state or assume that the amended rules provide a right to reply. 14 The clearest
statement is in WRIGHT, LEIPOLD, HENNING & WELLING, 3 FED. PRAC. & PROC. CRIM. § 633
(4th ed.): “A traverse or reply to the answer is not required, but Rule 5(d) was added in 2004 to
require the court to accept such a reply if the applicant chooses to file one.” The treatises do
not generally highlight the division of authority in the district courts or critique decisions not
permitting a reply. Indeed only one source we found indicated there was any potential dispute
on this point.15 We noticed, moreover, that one treatise continues to cite to some pre-2004 case
law, 16 which might cause confusion.
II.

Local Rules, Standing Orders, and Practices

At Judge Kemp’s request, Julie Wilson and Bridget Healy from the Administrative
Office of U.S. Courts examined local rules, standing orders, and docket entries 17 eight small,
0 in
r 8, 2
mbe and magistrate
eight medium, and eight large districts, and they also surveyed proeseeclerks
pt
on S
judges to learn more about their practices. Their resultscareeprovided in Tabs C.1, C.2, and C.3.
v d
r hi
0259

a

5
In a memo summarizing their review. 15-local rules, standing orders, and docket entries,
o of
oe, N
Wilson and Healy concluded: . John D
v
USA
ed in courts
majority of
cit

“the
included in the sample permit petitioners to file reply
briefs. Most courts permit reply briefs and set the time period with an order,
although a minority of courts has a local rule permitting reply briefs. A review
of the dockets of the sample courts shows that the order requiring the
respondent to answer is the most common method of setting the time period for
Dec. 19, 2012) (acknowledging it may have been error to rule on § 2555 motion without considering reply but
citing authority permitting such a ruling when the government’s answer is conclusive and a reply would be of no
assistance).
14
Several treatises state that the prisoner “may” file a reply. RANDY HERTZ & JAMES S. LIEBMAN, 1 FEDERAL
HABEAS CORPUS PRACTICE AND PROCEDURE, § 17.1 (7th ed. 2015) (“n 2004, the Rules Governing Section 2254
Cases in the United States District Courts were amended to state explicitly that “[t]he petitioner may submit a
reply” then quoting the rule and the Committee Note); BRIAN MEANS, POSTCONVICTION REMEDIES § 17:1 (“State
prisoners proceeding under 28 U.S.C.A. § 2254 and federal prisoners proceeding under 28 U.S.C.A. § 2255 may
file a reply to the respondent's answer”); BRIAN MEANS, FEDERAL HABEAS MANUAL § 8:35 (stating that Rule 5(e)
and Rule 5(d) “authorize the petitioner's or movant's filing of a reply to the respondent's answer within a time
fixed by the district court.”); WEST’S FED. ADMIN. PRAC. § 6940 (“Amendments to Rule 5 … provide the
petitioner with the chance to reply to respondent's answer.”)
15
16A FED. PROC., L. ED. § 41:375 (noting a contrary decision with the signal “Caution”).
16
BRIAN MEANS, POSTCONVICTION REMEDIES § 17:1 n.2 (“Springs Industries, Inc. v. American Motorists Ins.
Co., 137 F.R.D. 238, 240 (N.D. Tex. 1991) (‘There will be instances, of course, when a movant should not be
permitted to cure by way of reply what is in fact a defective motion or when an injustice will otherwise result to a
nonmovant if a reply brief is augmented with new evidence’)”).

7

September 19, 2016

Page 129 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 130 of 497

a petitioner’s reply, and that reply briefs are sometimes filed regardless of
whether they are specifically permitted in an order.”
Of these 24 districts, most appeared to recognize or assume that replies were permitted,
although many districts’ rules said nothing about replies in these cases. But at least one
district’s local rule continues to contemplate no entitlement to file a reply to a response to any
motion without leave of court; 2255 cases are still termed motions, even though they are
docketed as separate cases. 17
In addition, Wilson and Healy also emailed the Pro Se Law Clerks’ list and the
Magistrate Judges Advisory Group asking for responses to the following questions:
(1) In your court, when a response if filed, is the moving party automatically given an
opportunity to file a reply?
(2) What time period is given for filing a reply?
(3) Are extensions of that time period granted?
A chart recording the responses is provided at Tab C.3. 18 Respondents in the majority of
districts stated that petitioners are automatically permitted to reply. But respondents in two
districts stated that petitioners are not automatically given a right to reply, 19 and in seven
additional districts, the response to this question was coded as “maybe” or judge specific. 20
017
r 8, 2

be
ptem

III.

Amendment, Other Action, or Study Agenda? on Se
d
hive
The Subcommittee agreed that 2255 Rule 0259 arc 2254 Rule (e) give prisoners a right
5(d) and
5-5
to file a reply, that district courts that have o. 1
oe, N concluded otherwise are in error, and that the denial
D
Jo liberty interests of persons who are incarcerated. Given the
of a right to file a reply affectsv.thehn
SA
i U
nature of this interest,ditnis particularly important that prisoners be permitted to present their
cite
replies, if any, to the government’s pleading before the district court rules. 21
17

This district is Massachusetts, where Local Rule 7.1, which governs motion practice, provides that a reply brief
may be permitted only with leave of the court. Wilson and Healy note, however, that although the general
scheduling orders in the case documents they surveyed did not reference a petitioner’s reply brief, petitioners in
some cases did file reply briefs or supplemental memoranda.

18

The period of time for filing a reply varied, and is not addressed in this memo.
These districts are Hawaii and the Eastern District of Wisconsin.
20
In both 2255 and habeas cases, the Administrative Office study coded the Eastern District of New York, the
Middle District of Florida, and the District of Massachusetts as judge specific or maybe. It coded the Eastern
District of Virginia and the District of Maryland as judge specific or maybe in 2255 cases, and the Eastern District
of Louisiana and the Northern District of New York as judge specific or maybe in state habeas cases.
21
The Eleventh Circuit, in a decision addressing a different issue (the need to serve on a petitioner not only the
state’s responsive pleading but also the exhibits referenced in that pleading), aptly explained the importance of the
petitioner’s reply (emphasis added):
19

And in any event, a habeas petitioner whose claims are thrown out on a procedural or
jurisdictional ground deserves just as much of an opportunity to respond to the State's answer
as the petitioner whose claims are dismissed on the merits. See Rules Governing § 2254 Cases,
Rules 5, 6 (establishing rules governing the filing and contents of pleadings as well as discovery
without drawing any distinction based on the grounds on which a claim is likely to be decided). .
..

8

September 19, 2016

Page 130 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 131 of 497

Although the Subcommittee agreed that both Rules 5 guaranteed a right to reply,
members questioned whether an amendment was the best response to the present inconsistency
in district court decisions. The Subcommittee briefly discussed several alternative responses,
and it requested that the Reporters collect more information about these and other potential
alternatives. This section presents the information collected and identifies factors that might,
in this context, weigh for and against a clarifying amendment.
A. The Case for Amendment
As a preliminary matter, the Committee should consider whether the rule is clear and
contrary decisions are simply wrong, or the text of the rule is not clear and its phrasing and/or
structure is contributing to the inconsistency in interpretation. When the text of the rule itself
creates ambiguity or inconsistency, an amendment may be an appropriate response. But
erroneous interpretations of clearly stated rules are typically corrected over time by appellate
review.
1. Textual Ambiguity
At least some judges who have denied the right to reply appear to find support for that
reading in the phrasing of Rule 5. The text is susceptible to an interpretation that the court has
discretion not only to set the time for a reply, but to determine whether a reply will be permitted.
If the text is not entirely clear, that strengthens the case for an amendment.
It appears that the phrasing of the rule is at least partially responsible ,for 17
0 some, but not
r8 2
mbe
all, of the decisions interpreting Rule 5 to authorize a judge to denypan opportunity to reply.
e
Se t
Rather than emphasize the text, some of the decisions relied d onoutdated pre-amendment
ve on
rchi
59 a
sources or on local rules governing motions that5give the court discretion to determine when a
- 02
. 15
litigant can file a reply. These reasons oe, No
are consistent with the view that the text of the Rule is
nD
Joh
A v.
n US
This cited i
distinction ignores the very real possibility—indeed, the probability—that the
District Court would base even a jurisdictional or procedural ruling on documents filed
alongside the State's answer (for example, trial transcripts showing that a claim is procedurally
defaulted due to lack of a contemporaneous objection). If the State points to a document that
purports to show that the petitioner did not exhaust his claim, or that it is procedurally
defaulted, why should that petitioner not have a meaningful opportunity to review the document
and explain to the District Court why the State's position is wrong? If we were to deny
petitioners this opportunity, we would do so in the face of our experience that has repeatedly
demonstrated that a petitioner must have a meaningful opportunity to challenge the propriety of
rulings on procedural grounds. These cases often present close calls which are subject to
debate. . . .

. . . Federal habeas corpus proceedings are the last chance a petitioner has to present
arguable constitutional violations and errors to a court capable of correcting them. Therefore
much rides on having an adversarial process structured in a way that best equips the District
Court to get it right. See Lonchar v. Thomas, 517 U.S. 314, 324, 116 S.Ct. 1293, 1299, 134
L.Ed.2d 440 (1996) (“Dismissal of a first habeas petition is a particularly serious matter, for that
dismissal denies the petitioner the protections of the Great Writ entirely, risking injury to an
important interest in human liberty.”).
Rodriguez v. Florida Dep't of Corr., 748 F.3d 1073, 1080 (11th Cir. 2014) (emphasis added). Consider also
Fitzpatrick v. Bradshaw, No. 1:06-CV-356, 2006 WL 3591955, at *2 (S.D. Ohio Dec. 11, 2006) (“Because a
respondent may be expected to raise new matters such as affirmative defenses in the answer, the petitioner may
have new matter to plead in response, e.g., equitable tolling as a response to a statute of limitations defense or
cause and prejudice or actual innocence as a response to a procedural bar claim.”).

9

September 19, 2016

Page 131 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 132 of 497

clear and these courts are simply mistaken. But a number of decisions denying the right to
reply mention the text of Rule 5(b) as support. This reliance on the text adds support to the
view that it is the language of the Rule, and not only mistaken reliance on outdated or
inapplicable authority, that is causing the problem.
2. Appellate Correction
Even if the text is clear, some Subcommittee members have expressed concern that
erroneous interpretations of 2255 Rule 5(d) and 2254 Rule 5(e) are significantly less likely to
be corrected by appellate litigation than are erroneous decisions concerning other federal rules
of procedure. If so, this may also weigh in favor of amending the rule or taking other
corrective action rather than deferring to appellate review. Indeed, in the twelve years since
the 2004 amendments added 2254 Rule 5(d) and 2255 Rule 5(e), there has been no appellate
discussion of this issue in any case available through searches of Westlaw. 22
Several factors could be contributing to the absence of appellate discussion. First, most
prisoners seeking relief in these cases will be proceeding pro se, 23 with limited capacity to
research, brief, and argue the issue. The vast majority of published and unpublished district
court decisions available on Westlaw that rejected a right to reply after 2004 involved a 2255
applicant or 2254 petitioner without counsel.
Second, most inmates who lose in the district court do not seek appellate review, and
those who do seek appellate review face an extra hurdle: a losing applicant or petitioner must
017
r 8, 2
secure a certificate of appealability. 24
mbe
ed
rchiv

epte

on S

9a
5025
. 15, No
22
Only a handful of appellate cases evenhn Doe Rule 5(d). The Eleventh Circuit’s opinion in Rodriguez, quoted
mention
o
in footnote 20, assumes there is SA v. Jto reply. See also White v. United States, 175 F. App'x 292, 293, 2006 WL
U a right
887743, at *1 (11th Cir.ted in (stating in passing, citing Rule 5, that “After the government has responded, the
ci 2006)
movant has the opportunity to reply.”) But two decisions note that the prisoner claimed he was denied the
opportunity to reply, and each was resolved on a different ground without further discussion of Rule 5(d). The
Anderson case discussed in the text accompanying notes 8 and 25. And in Cleaver v. Maye, 773 F.3d 230, 233
(10th Cir. 2014), the court refused to allow a prisoner who claimed district denied Rule 60(b) motion before he
received the Government's response and could reply to invoke 2255(d)’s “savings clause” and Section 2241. In an
earlier ruling, United States v. Cleaver, 319 F. App'x 728, 730–31, 2009 WL 903408, at *2 (10th Cir. 2009), the
court held that because Cleaver could have, but did not, assert his Rule 5(d) objection in his Rule 59(e) motion to
alter or amend the district court’s judgment or in his direct appeal, he could not later argue that he was entitled to
relief from the district court's judgment under Rule 60(b)(6)).
23

An estimated 95% of non-capital 2254 cases are resolved in the district court without counsel for the petitioner.
N. KING, F. CHEESMAN, & B. OSTROM, FINAL TECHNICAL REPORT: HABEAS LITIGATION IN U.S. DISTRICT COURTS
at 23 (2007) (reporting results of study of nearly 2400 non-capital 2254 cases filed in 2003 and 2004). Statistics
on representation in 2255 cases are not readily available, but it is fair to assume that a significant proportion are
resolved without representation for the applicant.
24
See 28 U.S.C. § 2253; Fed. R. App. P. 22(b). See also Nancy King, Non-Capital Habeas Cases after Appellate
Review: An Empirical Analysis, 24 FED. SENT. R. 308, 315 (2012) (following cases from study cited in note 23
through the courts of appeals, finding that in less than 40% was an appeal sought). The rate of appeal in 2255
cases is not available but caseload statistics suggest the appeal rate is similar. Between March 2014 and March
2015, there were about 7,000 Section 2255 applications terminated in the district courts, U.S. District Courts Civil Cases Terminated, by Nature of Suit and Action Taken, compared to 2900 appeals from Section 2255
rulings filed in courts of appeals during the same period. U.S. Courts of Appeals - Civil and Criminal Cases Filed,
by Circuit and Nature of Suit or Offense.

10

September 19, 2016

Page 132 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 133 of 497

Third, when a prisoner’s no-right-to-reply claim actually reaches an appellate court, it
may be less likely to be addressed in the appellate court’s decision than is a Criminal Rules
claim raised on direct appeal. There are generally many alternative grounds on which to affirm
a district court’s decision to deny or dismiss a 2255 application or 2254 petition for relief.
Post-conviction cases involve numerous procedural barriers to review such as the statute of
limitations, exhaustion requirement, procedural default, and the successive petition bar. Indeed,
a procedural barrier precluded the court from reaching the issue in the Anderson case, which
was brought to the attention of the Committee by Judge Wesley. Although the issue of the right
to file a reply was briefed in Anderson, the court of appeals did not address it, affirming the
judgment below because the 2255 application was filed too late. 25
A final factor regarding the capacity of further litigation to correct erroneous
applications of 2254 Rule 5(e) and 2255 Rule 5(d) involves the potential skewing of the
decisions that are available through legal research. One Subcommittee member suggested that
decisions allowing a reply may be less likely to result in a written opinion than decisions
denying or upholding the denial of a reply, and further that the opinions denying the right to
reply are not flagged in Westlaw in a way that would suggest that holding is contested. Our
Westlaw searches identified dozens of district court opinions since 2004 that noted in passing
that there is a right to reply under Rule 5, 26 and hundreds more that set deadlines for the reply.
But these opinions did not involve disputes over whether there was a right to reply, and most
appeared to be boilerplate language repeated in all orders in such cases from that district or by
01
that judge. If available legal research methods do disguise the balance ofeopinion7on this issue,
r 8, 2
mb
that too may delay the eventual correction of what the Subcommitteeebelieves are erroneous
ept
on S
ved
hi
interpretations of these rules.
9 arc
5

-502

B. The Case Against Amendment e, No. 15
o
John

D

A v.
1. Negative implications for other rules.
in US
cited

The style consultants believe the language of Rule 5 is quite clear, and they fear that
efforts to clarify would set a dangerous precedent, suggesting that other rules that use “may”

25

It stated:
Anderson maintains that Rule 5(d) afforded him an absolute right to respond to the
government's answer to his § 2255 petition before the district court ruled. We need not
conclusively decide this issue because, given that Anderson’s petition was untimely, any error
the district court may have committed was harmless. Anderson has conceded the untimeliness of
his petition on this appeal, and he has failed to show that he was prejudiced by any error the
district court may have made in ruling on his § 2255 petition before he could respond to the
government's answer to it.

Anderson v. United States, 612 F. App'x 45, 46, 2015 WL 5233406 (2d Cir. 2015).
26
E.g., Blake v. United States, No. 213CV02663JPMCGC, 2016 WL 4153618, at *3 (W.D. Tenn. Aug. 4, 2016)
(“The movant is entitled to reply to the Government's response. Rule 5(d)”); United States v. Obaei, 2015 WL
1545019, at *1 (N.D. Ill. April 1, 2015) (“Rule 5(d) . . . gives Obaei the right to submit a reply to that response”);
Poulsen v. United States, No. 2:06-CR-129, 2014 WL 7272228, at *7 (S.D. Ohio Dec. 18, 2014) (“Rule 5(d)
permits the moving party to reply to the respondent's answer”); Baerga-Suarez v. United States, 30 F. Supp. 3d 91,
99 (D.P.R. 2014) (“the Court recognizes petitioner's right to submit an answer under Rule 5(d)”).

11

September 19, 2016

Page 133 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 134 of 497

are somehow deficient. Similar phrasing is used elsewhere in the rules to convey a right to
take some action. 27
But the phrasing in Rules 5 is not identical to that in the other Criminal Rules, and the
extra clause regarding judicial discretion to set the time for reply that may be contributing to
the disputed interpretation.
If the Committee pursues an amendment, some revisions would be less likely to raise
concerns that the term “may” does not, by itself, clearly state an entitlement to act. We discuss
some alternatives infra in Section III.
2. Scope of the problem.
Several Subcommittee members suggested that the problematic decisions were not
sufficiently frequent or widespread to warrant any action on the part of the Committee. We
cannot answer the question exactly how many cases are affected because many (perhaps most)
district court rulings in 2254 and 2255 cases do not make it into the searchable legal research
databases. Thus, even if research identifies a particular number of decisions stating that a reply
could be disallowed at the judge’s discretion, that research is not a reliable gauge of either the
number or percentage of cases in which a reply is not permitted.
We do have information gathered by the Administrative Office about local rules and
policies in a sample of districts. The Wilson and Healy survey of 24 districts indicates that the
practice in the clear majority of those districts is to give all prisoners the right 017
to reply. Even in
r 8, 2
mbe
the handful of districts where that is not the case, most courts permitte
ep prisoners to file a reply, a
on S
practice confirmed by respondents from those districts. Assuming that the sample of districts
ved
rchi
5 a
examined in the survey fairly represents the practices 9 remaining districts, the survey suggests
-502 of
. 15
that the percentage of judges denyingDoeopportunity to reply is quite small.
an , No
n
h

v. Jo

It is notable, however,Athat the post-2004 opinions we did find that contest the right to
in US
cited
reply in either 2255 or 2254 cases were not limited to those with particularly small prisoner
caseloads and include decisions by judges from the Middle District of Florida, the Eastern
District of New York, the District of New Jersey, the Northern District of Illinois, and the
Eastern District of Pennsylvania. 28
3. Availability of Options Besides Amendment

27

See Fed. R. Crim. P. 30(a) (“[a]ny party may request in writing that the court instruct the jury on the law as
specified in the request.”); Fed. R. Crim. P. 32(f)(3) (“the probation officer may meet with the parties to discuss
objections”); Fed. R. App. P. 28(c) ("[t]he appellant may file a brief in reply to the appellee's brief”).
28
Approximately 6,500 Section 2255 cases and 16,300 state prisoner habeas petitions were filed in district courts
nationwide in the twelve months preceding March 31, 2015. U.S. DISTRICT COURTS, CIVIL FEDERAL JUDICIAL
CASELOAD STATISTICS, TABLE NO. C-3, CIVIL CASES FILED, BY JURISDICTION, NATURE OF SUIT, AND DISTRICT
(2015), available at http://www.uscourts.gov/statistics/table/c-3/judicial-business/2015/09/30 . The number of
2255 and state habeas cases in these districts was as follows:
Court
2255
2254
M.D. FL
285
285
E.D.N.Y.
75
133
D.NJ
108
306
N.D.IL
116
199
E.D.PA
155
466

12

September 19, 2016

Page 134 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 135 of 497

The Subcommittee was interested in what other options are available to address this
division in the case law, other than amending the rule. Four options are examined below.
a. Letters to Chief Judges from Committee Chair or Rules Office
The Subcommittee requested information on possibilities for bringing inconsistent case
law or local rules to the attention of some or all chief judges by means of a letter from either
the Rules Office or the Chair of the Committee. The recent examples of such letters we found,
however, occurred under circumstances somewhat different than those facing the Committee
with Rule 5.
The first example involved letters from the Chair of the Standing Committee, Judge
David Levi, to Chief Judges of various districts around the country. These letters were the
final step in the Standing Committee’s nationwide review of local rules for compliance with
Fed.R.Civ.P. 83 and 28 U.S.C. § 2071, which prohibit local rules inconsistent with national
law. The Standing Committee issued a report that put local rules it identified as “problematic”
into four categories: (1) rules that directly conflicted with national law, (2) rules that arguably
conflicted with national law, (3) rules that were outmoded because they regulate a practice that
no longer arises in federal courts, and (4) rules that duplicate national law in a manner that may
lead to inconsistency. Letters were sent to the Chief Judge of every district that had a local rule
in any of these categories, providing the report, noting the problematic rules, and drawing
“attention to these matters for whatever action you consider appropriate.” Because these letters
were the product of a national project by the Standing Committee, they dor not 017 apposite to
, 2 seem
be 8
the current situation.
ptem
Se
ived

on

The second and third examples involved issues rch Appellate Rules Committee decided
9 a the
5025
. 15- of the Committee, Judge Sutton wrote a letter
to handle without amendment. In 2012, ,as o
Chair
oe N
to the chief judges of three circuits n D
oh regarding the Appellate Rules Committee's consideration of
v. J
USA
a proposal to treat federally recognized Native American tribes the same as states for purposes
ed in
cit
of Appellate Rule 29's amicus-filing provisions. 29 Judge Sutton proposed this as an interim
approach, explaining to these Circuits that the Committee thought the issue warranted serious
consideration but that it was not sure that it was the time to adopt a national rule change on this
issue, and that the Committee planned to revisit the issue in five years. 30 The Appellate Rules
Committee also used a letter to deal with a suggestion that sealing and redaction practices in
some circuits were causing difficulties for litigants. The Committee investigated the varied
approaches to sealing and redaction on appeal, and debated their pros and cons. It then agreed
unanimously not to pursue an amendment, but to have Judge Sutton write to the chief judge of
each circuit, with copies to the circuit clerks, to advise them of the suggestion, the reasons for
it, the Committee’s findings concerning the circuits’ varying approaches, and the rationale for the
approach of the Seventh Circuit, which presumed materials would be unsealed absent specified
action. 31 Members expressed the hope that this informational approach would generate
dialogue and perhaps produce greater uniformity without rulemaking. 32
29

The letter itself is in the Fall 2012 Appellate Agenda Book at Tab 2, available at http://www.uscourts.gov/rulespolicies/archives/agenda-books/advisory-committee-rules-appellate-procedure-september-2012 .
30
Minutes of Spring 2012 Meeting of Advisory Committee on Appellate Rules, April 12, 2012, at 10-12.
31
In the course of this discussion, the Reporter noted, according to the minutes, two other instances of this “letter”
approach. “The Reporter observed that after the Committee had circulated to the Chief Judges of each circuit Ms.
Leary’s 2011 report on the taxation of appellate costs under Rule 39, at least one circuit had changed its practices

13

September 19, 2016

Page 135 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 136 of 497

Each of these situations was quite different from this one, and none involved an attempt
by the Committee, its Chair, or the Rules Office to suggest to district judges that they were
interpreting a rule incorrectly. An informational letter could focus on the variation in local
rules and standing orders, providing the information gathered by the Administrative Office.
The action of the Appellate Rules Committee provides some precedent for such a letter. But
that approach would not squarely focus on the problem in the decisional law.
b. Federal Judicial Center Action - Mention in Benchbook or Training Materials
On more than one occasion in the past, the Committee has concluded that the more
appropriate response to an issue was not to amend a rule, but instead to recommended to the
Federal Judicial Center that it add language to the Benchbook addressing a particular subject to
guide district judges. In 2011 the Committee followed this approach in lieu of proposing (1) an
amendment to Rule 16 requiring pretrial disclosure of exculpatory evidence and (2) inclusion
in Rule 11’s plea colloquy of advice about the possibility of civil commitment for sex
offenders. 33 Both subjects— pretrial disclosure and the plea colloquy—already appeared in the
Benchbook, so that adding material would have been an incremental change. By contrast, the
Benchbook does not say anything at all about Section 2254 or 2255 proceedings, other than a
cross reference in the appendix to a pocket guide to capital habeas cases. It is doubtful that the
right-to-reply issue will warrant its own mention in isolation, or justify the addition of an
entirely new section. Thus this avenue does not appear promising.
The FJC also convenes meetings of the chief judges of all districts, 8, 20it7carries on an
and 1
r
mbe prepare written
extension program of education for all district judges. The Committee could
pte
n Se
ed o
vgeneral educational sessions for
materials for distribution at the chief judges’ meeting orcin
hi
9 ar
district judges. But any materials that argued 15-5025 is intended to give a right to file a reply
Rule 5
.
, o
would raise concerns about the rolenofotheNAdvisory Committee. There is a strong norm that
D e
Joh
Av
the Advisory CommitteesU(and .their chairs and reporters) do not provide advisory opinions on
n S
i
ited
the meaning of thecrules. The Committee can, of course, use the Committee Note to explain the
purpose of an amendment and its intended effect. But once a rule is adopted, the Committee
does not normally seek to advocate for a particular interpretation. That function passes to the
courts (or to other groups, such as the Benchbook Committee). The Committee writing to
explain or argue in favor of a particular interpretation of Rule 5 seems to be inconsistent with
this norm.
concerning costs.” Minutes of Fall 2012 Meeting of Advisory Committee on Appellate Rules, Sept. 27, 2012, at 9.
Later, the Reporter stated “that in fall 2006 Judge Stewart, as the Chair of the Committee, had written to the
Chief Judge of each circuit to urge the circuits to consider whether their local briefing requirements were truly
necessary and to stress the need to make those requirements accessible to lawyers.” Id. Professor Coquillette also
observed that in some instances, “committees have identified specific areas where local r u l e variation may be
justified, and have merely circulated information about such local variations.” Id. at 10.
32
Id. at 9.
33
See Minutes of Advisory Committee Meeting, April 11-12, 2011, at 4-5 (discussion and approval of language in
letter from Committee Chair, Judge Richard Tallman, to the Federal Judicial Center requesting changes in the
Benchbook concerning advice concerning collateral consequences of pleading guilty); id. at 15-17 (after vote not
to proceed with amending Rule 16, Committee decided to pursue amendments to Benchbook to state best
practices). See also Hon. Emmet G. Sullivan, Enforcing Compliance with Constitutionally-Required Disclosures:
A Proposed Rule, 2016 CARDOZO L. REV. DE NOVO 138, 146–47 (2016) (noting that Advisory Committee's
consideration of amendments to Rule 16 influenced a new section in the 2013 edition of the FJC's Bench Book
covering Brady and Giglio obligations, which provides a wealth of relevant information for judges).

14

September 19, 2016

Page 136 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 137 of 497

c. Department of Justice Action
As a stopgap or alternative to amending 2255 Rule 5(d), the Department of Justice could
be requested to use its supervisory and educational authority to ensure that the government does
not advance the argument that Rule 5 does not give prisoners a right to file a reply. For
example, the Department might bar its attorneys from arguing on appeal that the Rule allows
judges to deny the opportunity to reply (though that would not preclude an argument that denial
was harmless error). It might ask its trial attorneys to request that district judges and
magistrate judges provide each 2255 applicant with an opportunity to reply to the
government’s responsive pleading whenever that opportunity appears to have been forbidden
or placed in doubt. If the Department were to undertake actions of this nature, it might reduce
the problem in 2255 cases. But it would not address cases in which judges are denying the
right to reply in cases seeking relief under Section 2254.
d. Clarifying Commentary
If there were a treatise that most judges consulted as guidance in these cases, it might be
used to highlight this problem and clarify what the 2004 amendment was intended to achieve.
There are indeed several habeas resources, but none so ubiquitous that it would reach the
intended audience. Moreover, although several treatises already note Rule 5 creates a right to
reply, 34 they have not prevented some courts from concluding to the contrary.
Another possibility might be an article in Judicature, a publication received by all
017
federal judges. Although at first blush this option might seem appealing, er 8, 2 are several
mb there
te
problems. The first is who could appropriately write such an d on Sep The Committee Chair (and
article.
ve
i
perhaps the reporters) are seen as authoritative, but2theyrch
59 a would be precluded from writing to
-50
advocate a certain view of the proper interpretation of Rule 5 by the norm noted above against
o. 15
e, N
n Do rules. It is also unclear how effective a Judicature
advisory opinions on the meaning h the
Jo of
A v.
article would be. It mayin USreach and persuade judges who now deny the opportunity to reply
not
cited
because they are using boilerplate language based on earlier cases in these orders, or are simply
applying a local rule governing replies for motions generally.
IV.

Options for an Amendment

If the Subcommittee concludes that an amendment is needed, it will then consider how
to clarify the text of the rule. (And, as noted, it will then turn to the questions whether to
specify a default time period for replies, and whether to propose a parallel amendment to Rule
5 of the 2254 Rules.)
The style consultants, when pressed to suggest some language to clarify the rule,
offered the following:
(d) Reply. The moving party may submit a reply to the respondent’s answer or other
pleading within a time fixed by the judge. Although the judge's permission is not
required, the judge may fix a time for the reply.
But they reiterated their position that (1) no clarification is needed, and (2) such a clarification
sets a dangerous precedent by suggesting that “may” does not mean that the court or party is
permitted to take the action specified.
34

See § I(B)(2), supra.

September 19, 2016

15

Page 137 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 138 of 497

If the Committee decides to pursue an amendment, there are alternative formulations
that may be less likely to be seen as setting a problematic precedent by qualifying the meaning
of “may.” Because the Subcommittee has not considered these alternatives—and the drafting
issues are not now before the Committee— we offer these merely as illustrations of the
possibilities:
The petitioner may submit a reply to respondent’s answer or other pleading. The
reply must be submitted within the time fixed by the judge or by local rule. 35
The petitioner is entitled to submit a reply to the respondent’s answer or other
pleading. The reply must be submitted within the time fixed by the judge or by
local rule.
The petitioner is entitled to submit a reply to the respondent’s answer or other
pleading, but must submit that reply within the time fixed by the judge or by local
rule.
Any amendment would, of course, be accompanied by a committee note that clearly stated the
purpose of the revision.
V.

Parallel Treatment for 2254 Rule 5(e)

The Subcommittee agreed that if an amendment to Rule 5(d) is proposed,7a parallel
01
r 8, 2
mbe reviewed the 2004
change to the 2254 Rules should be proposed as well. The Committees that
pte
n Se
amendments saw no reason to treat them differently on rthis ed o We found a division of
v issue.
i
a ch
authority in the 2254 cases similar to that in the-50259 cases, with some district courts
2255
o. 15
recognizing an entitlement to file a n Doe, within the time set by the judge, 36 and others stating
reply N
h
v. Jo
that the right to file a replySA conditioned upon a judge’s order.37
U is
cited

35

in

A variant of this version emphasizes that no permission is required:

The petitioner may submit a reply to respondent’s answer or other pleading, and need not obtain
permission from the judge. The reply must be submitted within the time fixed by the judge or by local
rule.
36
Decisions interpreting 2254 Rule 5(e) as allowing a petitioner to file a reply brief as a matter of right include the
following: McCauley v. Bowersox, No. 4:13-CV-872 NAB, 2015 WL 6955361, at *3 (E.D. Mo. Nov. 10, 2015)
(stating “right to file” a reply is waived by failure to comply with timing requirement); U.S. ex rel. Gilzene v.
Pfister, 45 F.Supp. 3d 854, 855, 2014 WL 4568133 (N.D. Ill. 2014) (“this Court followed its consistent practice of
treating a Section 2254 petitioner as entitled to file a reply as a matter of right (see Rule 5(e)”); Miles v.
Bradshaw, No. 5:13 CV 1078, 2014 WL 977702, at *13 (N.D. Ohio Mar. 12, 2014) (stating “a habeas petitioner
may file a reply to the government's answer provided it is within a time frame ordered by the court”); ”); Fischer
v. Ozaukee Cty. Cir. Ct., 741 F. Supp. 2d 944, 961, 2010 WL 3835089 at *15 (E.D. Wis. 2010) (“The opportunity
to reply to an answer to a petition is another distinguishing factor between the pleadings in a habeas petition and
the ordinary civil case,” denying state’s motion to amend order granting writ, which state complained was issued
too quickly after petitioner’s reply received.”); U.S. ex rel. Bell v. Mathy, No. 08 C 5622, 2009 WL 90078, at *1
n.2 (N.D. Ill. Jan. 14, 2009) (noting that though court had not also set a time for any filing, “Rule 5(e) of the Rules
Governing Section 2254 Cases in the United States District Courts now permits petitioners to submit replies to
respondents' answer”); Querendongo v. Tennis, No. CIV A 06-2925, 2007 WL 2142387, at *1 n.1 (E.D. Pa. July
23, 2007) (stating “petitioner requested permission from the court to file a response,” but [s]uch permission is not
required under the Rules Governing Section 2254 Cases in the United States District Court, Rule 5(e)”); Garner v.
Morales, 237 F.R.D. 399, 400 n.1 (S.D. Tex. 2006) (distinguishing the general rule for civil cases, which allows a

16

September 19, 2016

Page 138 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 139 of 497

Also, the reasoning in these Section 2254 cases mirrors the reasoning in the 2255 cases,
with references to outdated authority, 38 local rules,39 and emphasis on the word “may” in the
text of the rule.40
reply in some circumstances only when the court so orders with “the rule for state inmates seeking habeas relief,
which allows a reply by a petitioner).
37
Decisions interpreting 2254 Rule 5(e) as giving the court discretion to determine whether a reply may be filed include
the following: Gilreath v. Bartkowski, No. CIV.A. 11-5228 MAS, 2015 WL 2365125, at *2 (D.N.J. May 15, 2015)
(“Petitioner does not have an absolute right to file a reply in a habeas petition,” citing pre-2004 Committee note;
also stating the court allowed petitioner to file a reply but petitioner “simply did not”); Moore v. Coleman, No.
CIV. 13-7031, 2015 WL 1073142 (E.D. Pa. Mar. 11, 2015) (no entitlement to file a reply in § 2254 cases); Stultz
v. Giroux, No. CV 14-4570, 2015 WL 9273429, at *2 (E.D. Pa. Dec. 21, 2015) (finding that even if magistrate
judge erred in not allowing petitioner time to respond, error was not prejudicial); United States ex rel. Taylor v.
Williams, 2015 WL 6955495 at *1 (N.D. Ill. Nov. 10, 2015) (court denied petition finding “no need to bring Rule
5(e) of the Rules Governing Section 2254 Cases in the United States District Courts into play by calling for a
reply”); Harris v. Wenerowicz, No. CIV.A. 11-7750, 2014 WL 4056953, at *2 (E.D. Pa. Aug. 14, 2014) (“a
petitioner's reply is not a required element of the habeas corpus process in federal courts. Rule 5(e). . . provides
that the ‘petitioner may submit a reply to the respondent's answer or other pleading within a time fixed by the
judge.’ (Emphasis added)); Jackson v. Fortner, 2014 WL 3015265 at *3 (M.D. Tenn. July 2, 2014) (“counsel has
not made any showing under Rule 5(e) that the reply would have served a ‘truly useful purpose’”); Baker v. Cate,
No. CV 09-7600 DDP FMO, 2012 WL 1940607, at *1 (C.D. Cal. May 29, 2012) (noting petitioner failed to show
that any reply he could have filed would have raised a meritorious issue or substantively altered the court’s
decision); U.S. ex rel. Linton v. Battaglia, 416 F.Supp. 2d 619, 623 (N.D. Ill. 2006) (stating that because the
exhibits provided a conclusive legal response to the petition, “no purpose would be served8by 017 for a reply as
calling
r ,2
Section 2254 Rule 5(e) might otherwise permit”). See also Martinez v. Kansas, No. mbe 05-3415-MLB, 2006
pte CIV.A.
e
on that
WL 3350653, at *2 (D. Kan. Nov. 17, 2006) (noting the 2254 Rules “suggest S there will ordinarily be no need
ved
chiauthorized by the court. Rule 5(e) &
for a reply (historically referred to as a traverse), but that one 59 arbe
may
502
advisory committee's note (“Rule 5 (and the general procedure set up by this entire set of rules) does not
. 15, No
contemplate a traverse to the answer, exceptDoe special circumstances.”)).
under
ohn
v. J
USA
ed in
cit
38
For example, several decisions appear to rely on the pre-2004 Committee Note. E.g., Jackson v. Fortner, 2014
WL 3015265 at *3 (M.D. Tenn. July 2, 2014) (finding no authority entitling petitioner to traverse or reply, citing
2254 Rule 5 and Advisory Committee Notes); Williams v. Cline, No. CIV.A.07-3036-MLB, 2007 WL 2174729,
at *2 (D. Kan. July 27, 2007) (allowing reply, but stating “The rules suggest that there will ordinarily be no need
for a reply (historically referred to as a traverse), but that one may be authorized by the court. Id., Rule 5(e) &
advisory committee's note (‘Rule 5 (and the general procedure set up by this entire set of rules) does not
contemplate a traverse to the answer, except under special circumstances.’). The Court ordered such a traverse
from petitioner here.”); Housley v. Tennis, No. CIV.A. 04-658, 2004 WL 1737646, at *2 (E.D. Pa. July 30, 2004)
(finding no authority entitling petitioner to file reply or traverse to answer, finding no prejudice, citing 2254 Rule
5 and cmt). Some more recent cases cite earlier authority that relies, in turn, on pre 2004 sources. E.g.,
Armstrong v. Coleman, No. CIV.A. 11-4354, 2012 WL 1252570, at *3, *3 n.8 (E.D. Pa. Feb. 10, 2012) (rejecting
claim as not challenging custody, rejecting right to reply in dicta, quoting Housley, and stating “Petitioner's
alleged inability to file a reply did not prejudice his habeas rights”); Mills v. Poole, No. 06-CV-842A, 2008 WL
141729, at *5 n.1 (W.D.N.Y. Jan. 14, 2008) (stating that “the Section 2254 Rules suggest that, ordinarily, there
will be no need for a Reply, which historically has been referred to as a Traverse, but that one may be authorized
by the court,” and citing Martinez v. Kansas, Civ. No. 05-3415-MLB, 2006 WL 3350653, at *2 (D. Kan. Nov.16,
2006), which in turn cited Rule 5(e) of the Section 2254 Rules & Advisory Committee's Note to Rule 5 of the
Section 2254 Rules (“Rule 5 (and the general procedure set up by this entire set of rules) does not contemplate a
traverse to the answer, except under special circumstances.”). See also Moore v. Coleman, No. CIV. 13-7031,
2015 WL 1073142, *1 n.1 (E.D. Pa. Mar. 11, 2015) (“There is no entitlement to file a reply in § 2254 cases”).
39
It is possible there is some confusion about when local rules on civil case deadlines and pleadings apply in these
cases. For example, in Garner v. Morales, 237 F.R.D. 399, 400, 2006 WL 2529609 at *1, (S.D. Tex. 2006), the
court stated:

17

September 19, 2016

Page 139 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 140 of 497

d on

cited

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Rule 7(a) establishes that plaintiffs may not file a reply to an answer except in specific circumstances . . .
[footnote: This general rule for civil litigation is contrasted with the rule for state inmates seeking habeas
relief, which allows a reply by a petitioner.]”) (citing 2254 Rule 5(e)) with Davidson v. Morrow, No.
2:07-0047, 2008 WL 4065919, at *1–2 (M.D. Tenn. Aug. 27, 2008) (Petitioner stated the reason he failed
to respond was “‘the absence of a directive pursuant to [2254] rule 5(e) by the court’ . . . However, a
Motion to Dismiss is not a responsive pleading within the meaning of the Federal Rules of Civil
Procedure, . . . and, in any event, Rule 5(a) which requires an Answer only upon order of a court ‘does
not address the practice in some districts, where the respondent files a pre-answer motion to dismiss the
petition.’ Rule 5, Rule Governing Section 2254 Cases, Adv. Comm. Notes, 2004 Amendments. In this
case, Respondent did not file an Answer, but instead chose to file a Motion to Dismiss. Under this
Court's Local Rule 7.01(b), any response to the Motion to Dismiss was due within ten days after service.”
40
Baker v. Cate, No. CV 09-7600 DDP FMO, 2012 WL 1940607, at *1 (C.D. Cal. May 29, 2012) (rejecting
objection to decision before reply submitted to answer and stating “a reply is not required and the failure to file a
reply does not disqualify a deserving petitioner from obtaining habeas corpus relief”); Harris v. Wenerowicz, No.
CIV.A. 11-7750, 2014 WL 4056953, at *2 (E.D. Pa. Aug. 14, 2014) (‘The petitioner may submit a reply to the
respondent's answer ....’)”) (emphasis added by district court); Whitepipe v. Weber, 536 F.Supp.2d 1070, 1093 n.
2 (D.S.D. 2007) (stating that “Rule 5(e) of the § 2254 Rules contemplates that permission be granted and a time
period be set by the reviewing court before a petitioner may file a reply to the respondent's answer”).

18

September 19, 2016

Page 140 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 141 of 497

TAB 4B
d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 141 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 142 of 497

THIS PAGE INTENTIONALLY BLANK

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 142 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 143 of 497

15-CR-F

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 143 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 144 of 497

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 144 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 145 of 497

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 145 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 146 of 497

THIS PAGE INTENTIONALLY BLANK

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 146 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 147 of 497

TAB 4C
d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 147 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 148 of 497

TAB C.1
d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 148 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 149 of 497

MEMORANDUM
TO:

Nancy King and Sara Beale

FROM:

Bridget Healy and Julie Wilson

DATE:

August 4, 2016

RE:

Survey of Response Times for Petitioner Reply Briefs
Attached to this memorandum is a spreadsheet detailing research regarding response

times for petitioner reply briefs in actions commenced under 28 U.S.C. §§ 2254 and 2255. The
research was completed in response to a suggestion from Judge Richard C. Wesley regarding
Rule 5(d) of the Rules Governing Section 2255 Proceedings for the United States District Courts.
That rule, as well as Rule 5(e) of the Rules Governing Section 2254 Cases in the United States
District Courts, provides that the petitioner/moving party “may submit a reply 17 . within a time
, 20 . .
er 8

emb

ept
on S

period fixed by the judge.” After reviewing case law interpreting Rule 5(d), Judge Wesley
ed
rchiv
9a

5025

15No.

pointed out that it is unclear whether oeparty who files a motion pursuant to section 2255 has an
a,
nD
A v.

US
ed in

Joh

absolute right to file a reply to the respondent’s answer or other pleading.
cit
A selection of small, medium, and large courts were included in the research to provide a
fair sample of court practices. The determination of court size was based on each district’s
number of authorized federal judgeships as approved by Congress. The Federal Judicial Center
has used these categories in their research, and it was adopted for purposes of this analysis.
Where possible, anecdotal evidence from pro se law clerks and judges was included to further
supplement the research on local rules and case docket reviews.
The result of the research is that the majority of courts included in the sample permit
petitioners to file reply briefs. Most courts permit reply briefs and set the time period with an
order, although a minority of courts has a local rule permitting reply briefs. A review of the

September 19, 2016

Page 149 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 150 of 497

dockets of the sample courts shows that the order requiring the respondent to answer is the most
common method of setting the time period for a petitioner’s reply, and that reply briefs are
sometimes filed regardless of whether they are specifically permitted in an order.
The time periods for replies vary, but are generally between 14 and 30 days after service
of the respondent’s answer, with some up to 60 days. From the information received from pro se
law clerks, it seems that motions for extensions of time to file reply briefs are routinely granted,
although some courts have a good cause requirement for an extension. A review of case dockets
supports the law clerks’ information.

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 150 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 151 of 497

TAB C.2
d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 151 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 152 of 497

THIS PAGE INTENTIONALLY BLANK

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 152 of 340

September 19, 2016

Page 1 of 13

Local Rule 12.1(a) provides the general From reviewing dockets, it appears that
rules for criminal pleadings. It provides there is little uniformity in section 2255 chived
r
5 a
that reply briefs, if permitted, must be reply deadlines. The majority of cases9
-502
15
are governed by an order entered after
filed 11 days before the return date.
No.
oe,filed. These provide
the initialhn D is
motion
From reviewing dockets, for 2254
Jo
v.periods for the response, and
petitions generally a Decision and OrderStime
U A
sometimes the time for a reply. In some
is entered, providing a deadline d in
te for
ci
respondent’s answer, but nothing as to cases replies were filed without any
petitioner’s reply. In cases in which the specific order, and in others, no order
regarding scheduling is entered at all.
petitioner requested the chance to
reply, a time period was provided.

New York
Northern

There is no specific provision for reply
briefs in the local rules, whereas
responses to petitions are addressed
(See Appendix III to Local Rules). Rules
Governing Section 2254 and 2255 Cases
Apply under Local Rule 72. From
reviewing dockets, response times for
the respondent’s answer and
petitioner’s reply are provided in the
Order to Answer. Average times given
are 60 days and 30 days, respectively.

Section 2255

There is no specific provision for reply
briefs in the local rules, whereas
responses to petitions are addressed
(See Appendix III to Local Rules). Rules
Governing Section 2254 and 2255 Cases
Apply under Local Rule 72. From
reviewing dockets, generally response
times for the respondent’s answer and
petitioner’s reply are provided in the
Order to Answer. Average times given
are 60 days and 30 days, respectively.

Section 2254

Maine

District

Local Rule and Docket Information

SMALL COURTS

ptem

e
on S

017
r 8, 2
be

Section 2254

Page 153 of 340

Section 2255

Responses from Judges / Law Clerks

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 153 of 497

Indiana
Northern

Se
d on

ptem

September 19, 2016

Local Rule 47 2 provides 28 days after
the answer is served for a petitioner's
reply.

Page 2 of 13

Local Rule 47 2 provides 28 days after
the answer is served for a petitioner's
reply.

Generally, extensions of time are
requested in the same method that
other requests for extensions of time
are requested. The motions by
petitioners are more likely to be granted
(than other litigants) because there is
usually no prejudice to the respondent
by the delay.

Page 154 of 340

Generally, extensions of time are
requested in the same method that
other requests for extensions of time
are requested. The motions by
petitioners are more likely to be granted
(than other litigants) because there is
usually no prejudice to the respondent
by the delay.

Petitioners always have the opportunity
to reply. Reply deadline (14 days) set in
order requiring response to petition.
Court is generous with requests for
extension of time for replies.

The moving party automatically gets to
file a reply which is limited to matters
newly raised in the response, the time
for filing is 14 days, and parties can ask
for extensions of time, which are
ordinarily granted.

The moving party automatically gets to
file a reply which is limited to matters
newly raised in the response, the time
for filing is 14 days, and parties can ask
for extensions of time, which are
ordinarily granted.

Local Rule 12.1 addresses pre trial
motion practice generally. There is no
specific rule regarding time for filing
responses or replies but subsection (b)
provides the standards for granting an
extension of time. From reviewing the
dockets, it appears that usually an order
is entered in each case specify the
respondent’s response time (typically
40 days), but not the petitioner’s reply
brief deadline.

017
r 8, 2
be

Section 2255

Section 2254

Section 2255

Responses from Judges / Law Clerks

e
The Northern and Southern Districts of Local Rule 47(C)(1) governs responses to Petitioners always have the opportunity
rchiv
59 ato reply. Reply deadline (14 days) set in
motions under section 2255 (response
Mississippi operate under the same
-502
order requiring response to petition.
local rules. There is no specific rule for not required unless directed5 the
o. 1 by
e, N
Court is generous with requests for
petitions under section 2254, although court). hn Do
Jo
extension of time for replies.
Local Rule 47 governs motion practice. SA v.
U
in
From reviewing case dockets,ted
ci it appears
that the reply/traverse deadline is
provided in the order setting the
respondent's answer deadline.

Local Rule 12.1 addresses pre trial
motion practice generally.
There is no specific rule regarding time
for filing responses or replies to 2254
petitions, but subsection (b) provides
the standards for granting an extension
of time. From the dockets, it appears
that in some cases an order sets the
deadline for a response, but letters are
also used. Often motion practice
permitting petitioner to file additional
documents.

North Carolina
Middle

Mississippi
Northern

Section 2254

District

Local Rule and Docket Information

SMALL COURTS

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 154 of 497

California
Eastern

Minnesota

Idaho

District
There is no local rule for motions filed
under section 2255, but Local Rule 7.1
provides general rules for motion
practice, including that the moving
party has 14 days after service of the
responding party's brief.

Section 2255

Section 2255
A general briefing order sets out
schedule for all responses. Like all other
criminal motions in the district, a reply
is allowed but is not required to be filed
by the moving party. The time for
replies is 14 days after the respondent
answers; this is 7 days longer than
permitted for other criminal motions.
Extensions of up to 30 days are
routinely granted.

Section 2254
A general briefing order sets out
schedule for all responses. Like all other
criminal motions in the district, a reply
is allowed but is not required to be filed
by the moving party. The time for
replies is 14 days after the respondent
answers; this is 7 days longer than
permitted for other criminal motions.
Extensions of up to 30 days are
routinely granted.

Responses from Judges / Law Clerks

September 19, 2016

Local Rule 190 sets out the filing
provisions for petitions under section
2254, but there is nothing addressing
reply briefs.

Page 3 of 13

Local Rule 190 sets out the filing
provisions for motions under section
2255, but there is nothing addressing
reply briefs.

Petitioners are automatically given the
opportunity to reply, and are usually
given 30 days. Extensions are routinely
granted. There is no local rule but the
standard briefing order contains these
deadlines

Page 155 of 340

Petitioners are automatically given the
opportunity to reply, and are usually
given 30 days. Extensions are routinely
granted. There is no local rule but the
standard briefing order contains these
deadlines

The guidebook for section 2255 motions All petitioners are given the chance to17 All petitioners are given the chance to
The guidebook for section 2254
, 20
reply, and the usual response time is 20
petitions explains that petitioners may explains that petitioners may file a reply reply, except in cases in which the
ber 8
em
Septbefore the time for 30 days. Extensions may be granted
file a reply within the time period set by within the time period set by the court. petition is dismissed
d on
reply.
See http://www.mnd.uscourts.gov/Pro a chiveGenerally petitioners are given upon request.
the court. See:
r
59 a
Se/2255 PrisonerGuidebook.pdf.0There 30 days to reply. Extensions may be
http://www.mnd.uscourts.gov/Pro
-5 2
5
Se/2254 PrisonerGuidebook.pdf. There is no specific local ruleso. 1
N governing reply granted upon request.
oe, reviewing case
is no specific local rule governing reply time periods. D
John From
A v.
time periods. From reviewing case USdockets, it appears that a petitioner's
in
reply time is usually in an order that
dockets, it appears that petitioner's
cited
generally receive 30 days from the date also sets the respondent's response
time, and is typically 20 30 days.
the answer is filed to file a reply, and
that the deadline is set out in the case
management order.

Local Rule 9.1 provides the general rules
for section 2254 motion practice. It
provides that a court must issue an
order with a response deadline if, after
an initial review, the court does not
dismiss the petition. Local Rule 7.1
provides that moving parties have 14
days after service of the responding
party's brief.

Section 2254

Local Rule and Docket Information

SMALL COURTS

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 155 of 497

September 19, 2016

Pennsylvania
Western

Local Rule 7.1, which governs motion
practice generally, provides that reply
briefs can be filed only with leave of
court. There are no specific provisions
for petitions under section 2254. From
reviewing case documents, the general
scheduling order used in cases does not
reference a petitioner's reply brief, but
in some cases, additional documents
are filed by petitioners.

Massachusetts

Local Rule 7.1, which governs motion
practice generally, provides that reply
briefs can be filed only with leave of
court. There are no specific provisions
for petitions under section 2255. From
reviewing case documents, the general
scheduling order used in cases does not
reference a petitioner's reply brief, but
in some cases, reply briefs and/or
supplemental memoranda are filed by
petitioners.

Section 2255

Section 2254

Section 2255

Responses from Judges / Law Clerks

Page 4 of 13

Page 156 of 340

017
r 8, 2
e
Local Rule 2254 applies to petitions. LR Local Rule 2255 applies to petitions. LR Petitioners are given an automatic right Petitioners are given an automatic right
temb
to file a reply, 30 ep after the date the to file a reply, 30 days from the date the
2255(e)(2) provides 30 days for
2254(e)(2) provides 30 days for
S days
d on
U.S. Attorney files its answer or
petitioners to file a reply (or traverse). petitioners to file a reply (or traverse). respondent files its answer. A
chive
ar
Any extension of that time must 0259 petitioner must file a motion for leave response. Extensions to file replies are
be
Any extension of that time must be
15-5
to file a reply later than the given time granted for good cause shown.
requested by motionNo. good cause
requested by motion and good cause
, and
e
period, and must show good cause.
must beohn Do
shown.
must be shown.
v. J
USA
in
cited

Section 2254

District

Local Rule and Docket Information

MEDIUM COURTS

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 156 of 497

Section 2254

Section 2255

September 19, 2016

Section 2254

Section 2255

Responses from Judges / Law Clerks

ptem

ive

Se
d on

017
r 8, 2
be

Page 157 of 340

Petitioners are generally permitted a
No response was provided regarding
reply, and the usual time period is 14
motions under section 2255.
days from the date of the respondent's
answer. This is set out in a scheduling
order. The judge who responded
specifically reference the case Roseboro
v. Garrison (cited in Local Rule 7(K)).

arch

Page 5 of 13

Virginia Eastern Local Rule 7 provides the general rules The same Local Rule applies in motions
for motion practice. Subsection 7(K)
under section 2255.
contains special rules for pro se parties.
"Motions Against
Pro Se Parties: It shall be the obligation
of counsel for any party who files any
dispositive or partially dispositive
motion addressed to a party who is
appearing in the
action without counsel to attach to or
include at the foot of the motion a
warning consistent with the
requirements of Roseboro v. Garrison,
528 F.2d 309 (4th Cir. 1975). The
warning shall state that: (1) The pro se
0259
party is entitled to file a response
15-5
.
, No
opposing the motion and that any such
Doe
n
. Joh
response must be filed within twenty
SA v
one (21) days of the date on whichin U
the
cited
dispositive or
partially dispositive motion is filed; and
(2) The Court could dismiss the action
on the basis of the moving party's
papers if the pro se
party does not file a response; and
15 (3) The pro se party must identify all
facts stated by the moving party with
which the pro se party disagrees and
must set forth the pro se
party's version of the facts by offering
ff d
(
d

District

Local Rule and Docket Information

MEDIUM COURTS

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 157 of 497

requirements. Local Rule 67 applies to
petitions in death penalty cases. From
reviewing case dockets, it appears that
a petitioner is often given time to reply
in the order setting the time for
respondent to answer. Typically 21 30
days.

September 19, 2016

Ohio Southern

There is no local rule that addresses
petitioner reply briefs.

Texas Eastern

Page 6 of 13

requirements. From reviewing case
dockets, it appears that a petitioner is
often given time to reply in the order
setting the time for respondent to
answer. Typically 21 or more days from
date answer is filed.

Page 158 of 340

e
Petitioners are permitted a reply, and
There is no local rule that addresses
Petitioners are permitted a reply, and
rchiv
59 aare generally given 30 days. Extensions are generally given 30 days. Extensions
petitioner reply briefs.
-502
are granted when requested.
are granted when requested.
o. 15
N

Se
d on

ptem

There is no local rule addressing reply
briefs, but petitioners are generally
given 20 days after the respondent files
an answer to file a reply.

There is no local rule addressing reply
briefs, but petitioners are generally
given 20 days after the respondent files
an answer to file a reply.

Local Rule 7.1 applies to motion practice
generally, and provides that replies
must be served within 14 days of service
of a responsive pleading. In the court's
instructions for filing habeas corpus
motions or petitions, there is a specific
reference to a petitioner filing a reply if
the respondent files an answer,
although no time period is provided.
See
http://www.gand.uscourts.gov/system/
files/HabeasInstruct09_03_2015.pdf

017
r 8, 2
be

Section 2255

Section 2254

Responses from Judges / Law Clerks

Section 2255

e,
n o
h16 D
Jo
Local Rule exempts habeas corpus
Local Rule 16 exempts habeas corpus
A v.
USproceedings from pre trial scheduling
proceedings from pre trial scheduling
in
cited

Local Rule 7.1 applies to motion practice
generally, and provides that replies
must be served within 14 days of service
of a responsive pleading. In the court's
instructions for filing habeas corpus
motions or petitions, there is a specific
reference to a petitioner filing a reply if
the respondent files an answer,
although no time period is provided.
See
http://www.gand.uscourts.gov/system/
files/HabeasInstruct09_03_2015.pdf

Section 2254

Georgia
Northern

District

Local Rule and Docket Information

MEDIUM COURTS

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 158 of 497

September 19, 2016

oe, N

Av
in US
cited

nD
. Joh

Section 2255
Case Management Orders used in
section 2255 cases do not always
include a time period for replies,
however, law clerks often wait the usual
time period (45 60 days) for a reply,
even if not in the CMO. If it is in the
CMO, the time period is generally 45 60
days. Extensions are granted with good
cause shown.

Section 2254
Petitioners are usually permitted a
reply, and while there is not local rule,
the district's Case Management Order
sets out deadlines and a reply is
specifically included. The CMO gives 60
days as a default, although one law
clerk stated that 45 days is also
common. Extensions are granted with
good cause shown.

Responses from Judges / Law Clerks

Page 159 of 340

Per local rule, the petitioner has 30 days There is no local rule addressing reply
from the date of filing of the
017 briefs in section 2255 motions, but most
r 8, 2
judges in the district use a standard
respondent's answer embe
to the Order to
Sept of time can be scheduling order that typically gives 30
Show Cause.n
Extensions
do
days from the date the respondent's
granted upon request.
chive
ar
answer is filed for a reply. Extensions of
time can be granted upon request.

Page 7 of 13

0259

-5
o. 15

No specific rule.

Petitioner has 30 days to file a
“traverse” to the respondent’s answer
in a non capital case (See Habeas
Corpus Local Rule 6).

California
Northern

Section 2255
There is no local rule that addresses
petitioner reply briefs. There is a
district Case Management Order that
sets a reply deadline.

Section 2254

Missouri Eastern There is no local rule that addresses
petitioner reply briefs. There is a
district Case Management Order that
sets a reply deadline.

District

Local Rule and Docket Information

MEDIUM COURTS

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 159 of 497

District of
Columbia

District

September 19, 2016

Section 2255

hn D

Page 8 of 13

. 15-

o
oe, N

ptem

017
r 8, 2
be

Page 160 of 340

Section 2255

Responses from Judges / Law Clerks
Section 2254

Se
d on

e

rchiv

9a
5025

The same local rules apply to motions
under section 2255. From reviewing
case dockets, in most cases (unless the
motion is dismissed outright), an order
is entered setting a deadline for the
respondent's answer. Some cases have
additional orders permitting
"supplemental filings" by the petitioner,
and in others, the petitioners file replies
without specific consent or deadlines.

v. Jo
USA
in
cited

Local Rule 9.2 governs the form of
section 2254 and 2255 motions and
petitions, and they are exempt from the
general pre trial procedure under Local
Rule 16.5. From reviewing case dockets,
an order to show cause is issued to
direct a respondent to answer, and in
some cases, an order to show cause is
issued to direct petitioner to reply or
supplement the record.

Section 2254

Local Rule and Docket Information

LARGE COURTS

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 160 of 497

New York
Southern

District

Section 2255

September 19, 2016

Page 9 of 13

Pursuant to Local Rules 6.1 and 16.1,
Pursuant to Local Rules 6.1 and 16.1,
petitions under 2254 and motions
petitions under 2254 and motions
under 2255 are exempt from usual pre under 2255 are exempt from usual pre
trial scheduling. Local Rule 83.3 deals trial scheduling. Local Rule 83.3 deals
with habeas corpus petitions, but has
with habeas corpus petitions, but has
nothing to do with motion practice.
nothing to do with motion practice.
Most of the judges within the district
Most of the judges within the district
have Individual Practices that set out
have Individual Practices that set out
standards for pre trial practice, and
standards for pre trial practice, and
sometimes motion practice. Generally,
sometimes motion practice. Often
habeas corpus actions are excluded
habeas corpus actions are excluded
from pre trial requirements, although from pre trial requirements although
some judges include the instruction that some judges include the instruction that
a scheduling order will be issued when a a scheduling order will be issued when a
ived
arch
petition or motion for habeas corpus is petition or motion for habeas corpus is
0259
filed. From reviewing case15-5 it
dockets,
filed. From reviewing case dockets, it
.
, No
appears that generally, an order to
appears that generally, an order to
Doe
J hn
answer is entered setting a deadline for answer o entered setting a deadline for
A . is
Sthev
respondent's answer and a deadline
the respondent's answer and a deadline
in U
ited
c30 days
for petitioner's reply, if any, 30 days
for petitioner's reply, if any,
from the date of service of the answer. from the date of service of the answer.

Section 2254

Local Rule and Docket Information

LARGE COURTS

ptem

e
on S

017
r 8, 2
be

Section 2254

Page 161 of 340

Section 2255

Responses from Judges / Law Clerks

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 161 of 497

New Jersey

District

September 19, 2016

John

Section 2255

Page 10 of 13

Local Rule 81.2(d) provides the rules for
motion practice in motions under
section 2255. It states that respondents
have "45 days from the date on which
an order directing such response is filed
with the Clerk, unless an extension is
granted for good cause shown." There
is no provision for a petitioner reply.
(Local Rule 81.3 provides specific rules
for motions in section 2255 cases
involving the death penalty, and
requires additional briefing by the
petitioner). From reviewing case
dockets, Orders to Answer often contain
ived
arch
a provision permitting a petitioner259
0 to
reply within 30 days of o. 15-5
being served
,N
with the respondent's answer.
Doe

A v.
in US
cited

Unlike petitions under section 2255,
there are no specific provisions for
petitions under 2254. Under Local Rule
7.1(d), general motion practice
measures answer and reply time
periods from the noticed motion day
(14 days from the day for answers and 7
days for the reply). From reviewing case
dockets, it appears common for
petitioners to be given 30 days
following the filing of respondent's
answer to reply. Rule 5(e) is sometimes
cited.

Section 2254

Local Rule and Docket Information

LARGE COURTS

ptem

e
on S

017
r 8, 2
be

Section 2254

Page 162 of 340

Section 2255

Responses from Judges / Law Clerks

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 162 of 497

September 19, 2016

-50

. 15
, No

Local Rules 9.3 and 9.4 govern motions
under section 2255. Local Rule 9.3 sets
out the format for any motion, and Rule
9.4 provides the contents and motion
practice. There are specific carve outs
for section 2255 motions for death
penalty cases. In general, petitioners
must file a memorandum in support of
their petition within 60 days of filing the
petition. Respondents are not required
to respond until the memorandum is
filed. Under Local Rule 9.4(7), a
petitioner has 21 days after the filing of
an answer to file a reply. Extensions
ived
arch
may be granted for good cause. 259

Section 2255

Page 11 of 13

times for petitioners. In reviewing
cases, often in the order to answer, the
petitioner is given 30 days from service
of the respondent's answer to file a
reply, citing Rule 5(d).

Doe
John local rules setting reply
There are no
v.
USA

Local Rule 9.4 governs petitions under
section 2254, and provides that
petitioners must file a memorandum in
support of their petition within 60 days
of filing the petition. Respondents are
not required to respond until the
memorandum is filed. Under Local Rule
9.4(7), a petitioner has 21 days after the
filing of an answer to file a reply.
Extensions may be granted for good
cause.

Section 2254

Texas Southern There are no local rules setting reply
times for petitioners. From reviewing
in
cited
case dockets, in appears that the
standard order used some cases under
section 2254 does not contain any
language regarding petitioner's reply
briefs, although the order to answer
used in some cases does contain
language permitting a petitioner reply,
within 21 days of receiving respondent's
answer. Regardless of the language in
the order, petitioners file replies in
cases, and other supplemental
documents.

Pennsylvania
Eastern

District

Local Rule and Docket Information

LARGE COURTS

ptem

e
on S

017
r 8, 2
be

Section 2254

Page 163 of 340

Section 2255

Responses from Judges / Law Clerks

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 163 of 497

Section 2254

September 19, 2016

John

Section 2255

Page 12 of 13

Rule 81.3 provides the rule for petitions
under section 2254 and 2255. Local
Rule 16.1.1 exempts prisoner
petitioners from the usual case
scheduling practices. Local Criminal
Rule 47.1 provides that reply briefs
must be filed within 7 days of receipt of
the answering brief. It is unclear if this
rule applies to motions under section
2255. From the case dockets, it appears
that in the majority of cases, orders are
entered setting the petitioner's reply
brief response time (anywhere from 14
30 days) in the order setting the time
ived
arch
for the respondent's answer.
0259
Occasionally, there were .separate
15-5
No
orders settingDoe,times.
reply

A v.
in US
cited

Illinois Northern Rule 81.3 provides the rule for petitions
under section 2254 and 2255. Local
Rule 16.1.1 exempts prisoner
petitioners from the usual case
scheduling practices. Local Criminal
Rule 47.1 provides that reply briefs
must be filed within 7 days of receipt of
the answering brief. It is unclear if this
rule applies to motions under section
2254. From a review of case dockets, a
time for petitioner's reply is usually
provided in the order setting the time
for the respondent to answer. The time
for reply is anywhere from 14 60 days
from receipt of the respondent's
answer. Occasionally, there were
separate orders setting petitioners'
reply times.

District

Local Rule and Docket Information

LARGE COURTS

ptem

e
on S

017
r 8, 2
be

Section 2254

Page 164 of 340

Section 2255

Responses from Judges / Law Clerks

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 164 of 497

September 19, 2016

There are no specific local rules setting
reply times for petitioners. In reviewing
case dockets, there is an order entered
in most cases permitting a reply by
petitioner, providing anywhere from 14
30 days.

Florida Middle

Section 2255

. 15-

hn D

o
oe, N

Page 13 of 13

There are no specific local rules setting
reply times for petitioners. In
reviewing case dockets, there is an
order entered in most cases permitting
a reply by petitioner giving anywhere
from 14 30 days.

Generally a reply is permitted, although
it is judge specific. Petitioners are given
anywhere from 14 21 days, occasionally
30 days. Extensions are granted when
requested. One law clerk reported that
her judge allows for 30 days after
service of the respondent's answer. All
law clerks cited the Rules Governing
Section 2254 and 2255 Proceedings.

ptem

017
r 8, 2
be

Page 165 of 340

Generally a reply is permitted, although
it is judge specific. Petitioners are given
anywhere from 14 21 days, occasionally
30 days. Extensions are granted when
requested. One law clerk reported that
petitioners are given 30 days after
service of the government's response
for 2255 motions. All law clerks cited
the Rules Governing Section 2254 and
2255 Proceedings.

Section 2255

Responses from Judges / Law Clerks
Section 2254

Se
d on

e

rchiv

9a
5025

Local Civil Rule 83.16 provides the
general rules for petitions and motions
under sections 2254 and 2255. In
Appendix B to the Local Rules regarding
Agreement on Acceptance of Service, it
states that the court will enter an order
with the deadline for a responsive
pleading, if any. From reviewing court
dockets, it appears that the time for a
petitioner to file an "optional" reply
brief in usually in the order setting the
respondent's time to answer. Typically
30 days from service of the answer or
21 days from the return filing date.

v. Jo
USA
in
cited

Local Civil Rule 72.3 and 83.16 provide
the general rules for petitions and
motions under sections 2254 and 2255.
The district has special rules for capital
habeas cases (see Local Rule 83.17) that
sets out specific briefing rules. In
Appendix B to the Local Rules regarding
Agreement on Acceptance of Service, it
states that the court will enter an order
with the deadline for a responsive
pleading, if any. From reviewing case
dockets, typically the court sets the
time for a petitioner to file a reply in an
order, either the order setting the time
for respondent's answer or a separate
order if an answer if filed. Typically 30
days from the date of service of
respondent's answer.

Section 2254

California
Central

District

Local Rule and Docket Information

LARGE COURTS

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 165 of 497

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 166 of 497

THIS PAGE INTENTIONALLY BLANK

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 166 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 167 of 497

TAB C.3
d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 167 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 168 of 497

THIS PAGE INTENTIONALLY BLANK

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 168 of 340

Ocala

Jacksonville
Ft. Myers

Gainesville - Judge
Gary R. Jones

Florida Middle
Florida Middle

Florida Northern

September 19, 2016

Idaho
Illinois Central
Illinois Southern
Indiana Northern
Indiana Southern
Kentucky Eastern

Hawaii

Florida Northern
Georgia Northern
Georgia Southern

Tampa

Florida Middle

Division

Alabama Middle
Arizona
California Eastern
California Northern
California Southern
Delaware
Florida Middle

U.S. District Court

1: No

Maybe

Maybe

Maybe

Yes
Yes
Yes
Yes
Yes
Yes

Yes

Yes

No

1: Narrative Response

. 15-

o
oe, N

Page 1 of 10

Treated the same as any civil action

The opportunity to reply is commonly requested and
granted. Respondent states: "Our court has not ruled or
proceeded on the assumption that Rule 5(d) provides an
automatic right to file a reply to my knowledge. Instead it is
left to the discretion of the court."

This is a qualified "yes." The court permits parties to file as
many briefs as they want, but they are on notice that the
court can rule in the meantime (i.e., after a response brief
has been filed). Local Rule 7.6 encourages reply briefers to
inform the court of their intention to file.

e

rchiv

A "floater" staff attorney indicated that petitioners are
automatically given an opportunity to reply. There was
variation among the responses we received.

9a
5025

ptem

Generally ranges from 14 to 21 days,
but 30 days is not unusual
30 days
Varies from judge to judge and
according to the type of case.

017
r 8, 2
be

2: Time period for filing reply
20 days
30 days
30 days
30 days
30 days
21 days
N/A

Yes

Yes
Yes, two extension are
automatically given.

Yes

Yes
Yes, if good cause is shown
Yes
Yes
Yes
Yes
N/A

3: Extensions granted? (Yes/No)

Yes

Yes
Yes
Yes
Yes
Yes
Yes
14 days
3 to 4 weeks
5 to 10 days
28 days
28 days
14 days

Page 169 of 340

30 days, but there are exceptions
20 days
No response.

30 days

Yes
Yes
No response.

30 days

Se
d on

The primary District Judge does not typically include an
opportunity for reply when ordering a response from the
government)
Generally, a reply is permitted

Standard order used by vast majority of chambers

hn D

1:
Maybe/JudgeSpecific

v. Jo
USA
Yes d in
ci e
Yest

Yes

Yes
Yes
Yes
Yes
Yes
Yes

1: Yes

3. Are extensions of that time period granted?

2. What time period is given for filing a reply?

1. In your court, when a response is filed, is the moving party automatically given an opportunity to file a reply?

Section 2255 Motions

Survey Responses Regarding Petitioner Reply Briefs in 2255 Motions and Habeas Petitions

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 169 of 497

Yes
Yes
Yes

Ohio Southern
Oklahoma Eastern
Oklahoma Western

September 19, 2016

Magistrate Judge
Suzanne Mitchell

Yes
Yes

New York Western
North Carolina Middle

Eastern

Yes

Yes

New York Southern

New York Northern

Magistrate Judge
Robert M. Levy
Magistrate Judge
David E. Peebles (one
of two respondents)

Yes
Yes
Yes
Yes

Missouri Eastern
Missouri Western
Montana
Nebraska
New Jersey

New York Eastern

1: No

Maybe

Maybe

Maybe

017
r 8, 2
be

30 days
It may differ among the judges. In the
Johnson resentencing cases, 28 days
are uniformly given for the reply.

Page 2 of 10

Yes
Yes

14 or 15 days
14 days
7 days

30 days
14 days

30 days

Yes
Yes
Yes

Page 170 of 340

Up to judge, but reasonable
requests are typically granted
Yes
Yes

No response

Yes

Yes, if good cause is shown
Yes, if good cause is shown
Yes
Yes
Yes, but reviewed the same as any
request would be

Yes
30 days
Varies from judge to judge, but 20 to 30 Yes
days is standard.
14 days
Yes

Can vary, but default is 60 days.
30 days
21 or 30 days
30 days
This is a qualified "yes." The district has interpreted the rule 30 days
as not mandating that a petitioner be permitted to file a
reply.
30 days is typical period
No uniform practice, but Judge Levy says most, if not all,
permit a reply.
No specific time limit is currently
prescribed.

025
15-5 have been exceptions at times
.
RespondentNo that there
, states
Doe
John
Depends on the judge; varies between chambers

d on

hive
9 arc

3: Extensions granted? (Yes/No)

If the movant/petitioner requests
If necessary, a brief extension may
leave, the motion is addressed with a be granted depending on the judge
return period of 14 to 30 days given
and circumstances of the case.
depending on the judge and the
circumstances of the case, including the
length of time that already has passed
between the government's response
and the filing of the request for leave.

2: Time period for filing reply

em
Sept

1:
1: Narrative Response
Maybe/JudgeSpecific
Maybe
If the movant/petitioner sends in a reply/traverse, the clerk
files it into the record even if leave is not requested.

A v.
in US
Yested
ci

Yes
Yes

Yes

1: Yes

Yes

Eastern (Boston)

Division

Mississippi Northern

Massachusetts
Michigan Eastern
Minnesota

Maine
Maryland

Louisiana Eastern

U.S. District Court

3. Are extensions of that time period granted?

2. What time period is given for filing a reply?

1. In your court, when a response is filed, is the moving party automatically given an opportunity to file a reply?

Section 2255 Motions

Survey Responses Regarding Petitioner Reply Briefs in 2255 Motions and Habeas Petitions

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 170 of 497

September 19, 2016

Wisconsin Western
Wyoming

Wisconsin Eastern
Yes
Yes

Yes

Washington Western

Career clerk to Judge
Rudolph T. Randa

Yes
Yes
Yes

Yes
Yes

Yes

Austin

Sherman
Fort Worth (and
another general
response)
Corpus Christi

1: No

No

Maybe

. 15-

o
oe, N

Page 3 of 10

No definitive response because varies by judge. Two
respondents indicated that they are pretty confident that
most permit a reply.
Roseboro notice

2: Time period for filing reply

Yes
Yes
10 days
21 days

Yes

Yes

Yes

Yes
Yes
Yes

Page 171 of 340

Yes (the 5th Circuit tends to reverse
the District Court if the movant is
not given at least one extension of
time upon request)
Yes
Yes

21 days for pro se petitioners; 14 days
per local rule otherwise
22 to 25 days (based on reqt that
response be noted for consideration
per local rule)
If a reply is allowed, 30-45 days

30 days
30 days
20 days (except for one judge who
gives 14 days)
Likely depends on whether the
defendant is represented by counsel

28 or 30 days
30 days
30 days

14 days (same rule that applies to any
dispositive motion)

ptem

017
r 8, 2
be

Yes. "If the movant wishes to file a
Reply after 30 days have passed, he
or she must file a motion
requesting leave to do so. An
extension may be granted only for
good cause shown."

3: Extensions granted? (Yes/No)

14 days (same rule for replies in all civil Yes
motions) "[B]ecause of the vagaries of
prison mail systems, I don't hold pro se
inmates to a strict 14-day time period.
Generally, I will consider any reply that
the inmate files before I turn my
attention to the file to begin
formulating an opinion."

"30 days of the date the US Attorney
files its Answer or other form of
response"

Se
d on

e

rchiv

9a
5025

1: Narrative Response

This became the practice following the 2004 amendments

nD
. Joh

1:
Maybe/JudgeSpecific

Av
in US
Yested
ci

Yes

Virginia Western

Virginia Eastern

Texas Southern
Texas Southern
Texas Western

Tennessee Western
Texas Eastern
Texas Northern

Tennessee Eastern

Yes

Magistrate Judge
Veronica L. Duffy

South Dakota

1: Yes
Yes

Division

Pennsylvania Western

U.S. District Court

3. Are extensions of that time period granted?

2. What time period is given for filing a reply?

1. In your court, when a response is filed, is the moving party automatically given an opportunity to file a reply?

Section 2255 Motions

Survey Responses Regarding Petitioner Reply Briefs in 2255 Motions and Habeas Petitions

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 171 of 497

Ft. Myers

Gainesville - Judge
Gary R. Jones

Florida Middle

Florida Northern

September 19, 2016

Tampa

Florida Middle

1: No

Yes

Yes

1: Narrative Response
20 days
30 days
30 days
30 days

Page 4 of 10

Maybe ("only Respondent indicated that the staff
when needed") attorneys and District Judge in charge
changed procedure based on a reading of
Rule 5. Previously, the standard order
directed that the petitioner file a reply
within so many days. The procedure was
changed to only request a reply when
"needed." If the order does not direct that
a reply be filed, but the petition requests to
file, the court construes as a motion
seeking leave to file and grants the motion.
Another respondent--a "floater" staff
attorney indicated that petitioners are
automatically given an opportunity to reply.

Generally, a reply is permitted

o. 1

25
5-50

hive
9 arc

ber 8

30 days

Generally ranges from 14 to 21
days, but 30 days is not unusual
30 to 45 days

45 days

21 days

d on 30 days

em
Sept

7
, 201

2: Time period for filing reply

Per local rule and per standard OSC used by 30 days
all chambers

e, N
n Do

1:
Maybe/JudgeSpecific

. Joh
SA v Depends on the
in U
judge
cited

Yes

Delaware

Ocala

Yes

California Southern

Florida Middle

Yes

California Northern

1: Yes
Yes
Yes
Yes
Yes

Division

Alabama Middle
Arizona
Arkansas Eastern
California Eastern

U.S. District Court

3. Are extensions of that time period granted?

2. What time period is given for filing a reply?

1. In your court, when a response is filed, is the moving party automatically given an opportunity to file a reply?

Habeas Petitions

3: Extensions granted? (Yes/No)

Yes

Page 172 of 340

Yes. One respondent indicated that
two extensions are automatically
given.

Yes

Yes

Yes

Yes

Yes
Yes, if good cause is shown
Yes
Yes

Survey Responses Regarding Petitioner Reply Briefs in 2255 Motions and Habeas Petitions

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 172 of 497

Yes
Yes
Yes
Yes

Idaho
Illinois Central
Illinois Southern
Indiana Northern

Yes
Yes

Yes

Indiana Southern

Kansas

Kentucky Eastern

September 19, 2016

Louisiana Eastern

1: No

A
n US
ted i
ci

Yes

Hawaii

1: Yes
Yes
Yes
Yes

Division

Florida Northern
Georgia Northern
Georgia Southern

U.S. District Court

Maybe

hn
v. Jo

1: Narrative Response

Page 5 of 10

If the movant/petitioner sends in a
reply/traverse, the clerk files it into the
record even if leave is not requested.

Treated the same as any civil action

-502

. 15
, No

ived

rch
59 a

Seemed to be a qualified "yes" in that
respondent indicated "generally."

p em
Sdayst
n 14 e
o

Yes
Yes
Yes
Yes

Yes

No response.

Yes

3: Extensions granted? (Yes/No)

Page 173 of 340

If necessary, a brief extension may
If the movant/petitioner requests
leave, the motion is addressed with be granted depending on the judge
and circumstances of the case.
a return period of 14 to 30 days
given depending on the judge and
the circumstances of the case,
including the length of time that
already has passed between the
state's/government's response and
the filing of the request for leave.

Traditionally 30 days; some judges Traditionally, yes; however the
have begun giving a shorter amount practice is being reconsidered
of time
14 days
Yes

28 days

3 to 4 weeks
5 to 10 days
28 days

30 days

017
r 8, 2
be

2: Time period for filing reply

30 days
20 days
This is a qualified "yes." The court permits No response.
parties to file as many briefs as they want,
but they are on notice that the court can
rule in the meantime (i.e., after a response
brief has been filed). Local Rule 7.6
encourages reply briefers to inform the
court of their intention to file.

Doe

1:
Maybe/JudgeSpecific

3. Are extensions of that time period granted?

2. What time period is given for filing a reply?

1. In your court, when a response is filed, is the moving party automatically given an opportunity to file a reply?

Habeas Petitions

Survey Responses Regarding Petitioner Reply Briefs in 2255 Motions and Habeas Petitions

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 173 of 497

Yes
Yes

1: Yes

Yes

Eastern (Boston)

Division

Yes
Yes
Yes
Yes
Yes

Missouri Eastern

Missouri Western
Montana
Nebraska
Nevada

New Jersey

Magistrate Judge
Robert M. Levy
Magistrate Judge
David E. Peebles (one
of two respondents)

September 19, 2016

New York Southern

New York Northern

New York Eastern

Yes

Minnesota
Mississippi Northern

1: No

Yes

A
n US
ted i
ci

Yes
Yes

Michigan Eastern

Massachusetts

Maine
Maryland

U.S. District Court

Maybe

Maybe

v. Jo

ved

No uniform practice, but Judge Levy says
most, if not all, permit a reply.
Judge Peebles indicted that it was
automatic; another respondent indicated
that it was not

Page 6 of 10

3: Extensions granted? (Yes/No)

30 days
21 or 30 days
30 days
45 days

60 days

30 days
14 days

45 days

30 days

No specific time limit is currently
prescribed. Ms. Albright indicated
30 days.

30 days is typical period

Page 174 of 340

Up to judge, but reasonable
requests are typically granted

Yes, if needed/necessary

Yes

Yes, but reviewed the same as any
request would be

Yes, if good cause is shown
Yes
Yes
Yes

Yes, if good cause is shown

Yes
Yes

Yes

30 days
Yes
Typically 28 days. If, however, it is Yes.
clear that further reply might
jeopardize a petitioner (for
instances, where the limitations
period will soon expire, and it is
clear the petitioner needs to
complete post-conviction or
appellate review in the state courts
017
before coming to r 8, 2court), a
federal
e
decisionemb rendered, even if
may be
Sept period has not run.
on the reply

2: Time period for filing reply

This is a qualified "yes." The district has
30 days
interpreted the rule as not mandating that
a petitioner be permitted to file a reply.

. 15-

1: Narrative Response

Depends on the judge; varieschi
ar between
chambers
0259
5

o
oe, N

hn D

Maybe

1:
Maybe/JudgeSpecific

3. Are extensions of that time period granted?

2. What time period is given for filing a reply?

1. In your court, when a response is filed, is the moving party automatically given an opportunity to file a reply?

Habeas Petitions

Survey Responses Regarding Petitioner Reply Briefs in 2255 Motions and Habeas Petitions

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 174 of 497

Yes

Texas Eastern

September 19, 2016

Yes

Tennessee Western

Sherman

Yes

Magistrate Judge
Veronica L. Duffy

Tennessee Eastern

South Dakota

Yes

Pennsylvania Western

1: No

hn D

This became the practice following the
2004 amendments

Page 7 of 10

ptem

14 days

30 days

28 or 30 days

14 days (same rule that applies to
any dispositive motion)

14 days

"within 30 days of the date the
respondent files its Answer"

017
r 8, 2
be

14 or 15 days
15 days
7 days

14 days

30 days

2: Time period for filing reply

Se
d on

e

rchiv

9a
5025

1: Narrative Response

. 15-

o
oe, N

1:
Maybe/JudgeSpecific

v. Jo
USA
Yes in
cited

Yes

Pennsylvania Middle

Magistrate Judge
Suzanne Mitchell

Yes
Yes
Yes

Ohio Southern
Oklahoma Eastern
Oklahoma Western

Eastern

Yes

North Carolina Middle

1: Yes
Yes

Division

New York Western

U.S. District Court

3. Are extensions of that time period granted?

2. What time period is given for filing a reply?

1. In your court, when a response is filed, is the moving party automatically given an opportunity to file a reply?

Habeas Petitions

3: Extensions granted? (Yes/No)

Yes

Page 175 of 340

Yes (the 5th Circuit tends to reverse
the District Court if the movant is
not given at least one extension of
time upon request)

Yes. "If the petitioner wishes to file
a Reply after 30 days have passed,
he or she must file a motion
requesting leave to do so. An
extension may be granted only for
good cause shown "
Yes

Yes

Yes
Yes
Yes

Yes

Yes

Survey Responses Regarding Petitioner Reply Briefs in 2255 Motions and Habeas Petitions

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 175 of 497

Yes

1: No

Yes
Yes

Yes

No

Page 8 of 10

Roseboro1
o. notice

2
5-50

ived

rch
59 a

1: Narrative Response

Roseboro notice

e, N
n Do

Joh

1:
Maybe/JudgeSpecific

A v.
in US
cited

Career clerk to Judge
Rudolph T. Randa

September 19, 2016

Wisconsin Western
Wyoming

Wisconsin Eastern

Washington Western

Virginia Western

Magistrate Judge
Douglas E. Miller

Virginia Eastern

Yes

Yes

Austin

Texas Western

Yes

1: Yes

Yes

Fort Worth (and
another general
response)

Division

Texas Southern

Texas Northern

U.S. District Court

3. Are extensions of that time period granted?

2. What time period is given for filing a reply?

Yes

Yes

Yes

20 days
14 days

If a reply is allowed, 30-45 days

Yes
Yes

Yes

Page 176 of 340

Yes. One respondent answered that
it more often the State that
requests an extension of time.

3: Extensions granted? (Yes/No)

Yes
21 days for pro se petitioners; 14
days per local rule otherwise
18 to 21 days (calculation based
Yes
requirement that response be noted
for consideration per local rule)

least 30 days)
21 days

2017
r 8,does not
30 days (even ife
mb order
specify te
Sep a time period, they wait at
on

30 days (One respondent indicated
that, often, judges will allow 60 days
simply because it often takes longer
to get the state court records and
this avoids dealing with a request
for an extension of time by the
State )
30 days

2: Time period for filing reply

1. In your court, when a response is filed, is the moving party automatically given an opportunity to file a reply?

Habeas Petitions

Survey Responses Regarding Petitioner Reply Briefs in 2255 Motions and Habeas Petitions

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 176 of 497

Division

Eastern (Boston)

Tampa
Jacksonville
Ft. Myers
Gainesville - Judge
Gary R. Jones

Ocala

September 19, 2016

Missouri Eastern
Missouri Western
Montana
Nebraska
Nevada
New Jersey

Indiana Southern
Kansas
Kentucky Eastern
Louisiana Eastern
Maine
Maryland
Massachusetts
Michigan Eastern
Minnesota
Mississippi Northern

Florida Northern
Georgia Northern
Georgia Southern
Hawaii
Idaho
Illinois Central
Illinois Southern
Indiana Northern

Florida Middle
Florida Middle
Florida Middle
Florida Northern

California Southern
Delaware
Florida Middle

U.S. District Court
Alabama Middle
Arizona
Arkansas Eastern
California Eastern
California Northern

Page 9 of 10

No. Time limits set forth in Case Management Orders.
No
No
No
No. Time limits set forth in standard scheduling order.
No

hn D

v. Jo
USA
in
cited

. 15-

o
oe, N

e

rchiv

9a
5025

017
r 8, 2
be

Page 177 of 340

No
No
No response.
No
No
No
No
Yes. L. Cr. R. 47-2: "A party who files a petition under 28 U.S.C. 2254 or a motion under 28 U.S.C. 2255 must file any reply brief within 28 days after the answer brief
is served."
No. Time limits set forth in the court's show cause order.
No. Time limits set forth in the court's show cause order.
No. Governed by same rule as any civil action--LR 7.1(c)
No
No
No
No response
No. Form orders set out time limits.
No
No. Time limits set forth in standard order.

ptem

Se
d on

No
No
Not directly. Standing orders that give guidance, but nothing that directly addresses Rule 5.
No

4: Narrative Response
No
No
No
No. Time limits set in screening orders.
Yes. Habeas Local Rule 2254-6 provides that in Section 2254 cases, petitioner may serve and file a traverse within 30 days after the respondent has filed the
answer. We do not have a similar local rule or standing order with regards to Section 2255 motions, but standard briefing order used by vast majority of chambers
similarly provides that moving party may file a reply within 30 days after government has filed a response.
No. A local rule only for capital cases.
No. Time limits set forth in the court's service order.
Not directly, but MDFL Local Rule 4.14(a) states: (a) All proceedings instituted in this Court pursuant to 28 U.S.C. Sections 2254 and 2255, respectively, shall be
governed by the Rules pertaining to such proceedings as prescribed by the Supreme Court of the United States, including the model forms appended thereto."

4. Does your court have a local rule, standing order, or pro se guide that addresses Rule 5(d) of the Rules Governing Section 2255 Proceedings for the United
States District Courts and/or Rule 5(e) of the Rules Governing Section 2254 Cases in the United States District Courts?

Local Rule, Standing Order, or Pro Se Guide?

Survey Responses Regarding Petitioner Reply Briefs in 2255 Motions and Habeas Petitions

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 177 of 497

017
r 8, 2
be

Career clerk to Judge
Rudolph T. Randa

Austin
Magistrate Judge
Douglas E. Miller

Sherman
Fort Worth (and
another general
response)
Corpus Christi

September 19, 2016

Wisconsin Western
Wyoming

Virginia Western
Washington Western
Wisconsin Eastern

Texas Southern
Texas Southern
Texas Western
Virginia Eastern

Tennessee Western
Texas Eastern
Texas Northern

Tennessee Eastern

No
No

No
No, but service order references Rule 5.
No

No. Time limits set forth in standard order.

Page 10 of 10

D
ohn
v. Jin standard order.
No. Time limits set forth
A
n US
Response times are set in the preliminary order requesting the government to respond.
ted i
ciNo

. 15-

o
oe, N

e

rchiv

9a
5025

Page 178 of 340

No (Note: we have a Local Rule CV-3 that includes content requirements and page limits, but the rule does not correspond to Rule 5(d) and Rule 5(e). It would be
nice if the national rules included page limits.)
Standard order sets out time limits.
No
No. Time limits set forth in the court's show cause order. One respondent indicated that the reply is limited to 10 pages.

Se
d on

ptem

"Our local rule setting the time for a reply is a civil rule of general application to all civil cases."

South Dakota

Magistrate Judge
Veronica L. Duffy

Yes, but the local rule does not address the time period for filing a response. LR 83.32.1 Form of Petitions and Motions.
Yes. The Western District of Pennsylvania has Local Rules for 2255 motions and 2254 cases that address the issue of filing a reply.

Pennsylvania Middle
Pennsylvania Western

Magistrate Judge
Suzanne Mitchell

"Not that I'm aware of."
No
No

Eastern

Ohio Southern
Oklahoma Eastern
Oklahoma Western

4: Narrative Response

No
No. Time limits set forth in standard scheduling order
No. Treated the same as any civil action; same time limits/procedure apply

Division
Magistrate Judge
No
Robert M. Levy
No
Magistrate Judge
David E. Peebles (one
of two respondents)

New York Southern
New York Western
North Carolina Middle

New York Northern

U.S. District Court
New York Eastern

Local Rule, Standing Order, or Pro Se Guide?

Survey Responses Regarding Petitioner Reply Briefs in 2255 Motions and Habeas Petitions

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 178 of 497

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 179 of 497

TAB 5
d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 179 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 180 of 497

THIS PAGE INTENTIONALLY BLANK

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 180 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 181 of 497

TAB 5A
d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 181 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 182 of 497

THIS PAGE INTENTIONALLY BLANK

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 182 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 183 of 497

MEMO TO: Members, Criminal Rules Advisory Committee
FROM:

Professors Sara Sun Beale and Nancy King, Reporters

RE:

Rule 16 Subcommittee (16-CR-B)

DATE:

August 31, 2016

I.

BACKGROUND

The New York Council of Defense Lawyers (NYCDL) and the National Association of
Criminal Defense Lawyers (NACDL) proposed an amendment to Rule 16 that would impose
additional disclosure obligations on the government in complex cases. In their submission,
NYCDL and NACDL stated, p. 2, that there is “a growing problem in the defense of complex
federal criminal cases nationwide.” Defense counsel routinely receive “enormous amounts of
information at the outset of the discovery process,” often supplemented with “millions of pages
017
of documentation and thousands of emails.” Occasionally, they report, ber 8, 2 gigabytes of
“more
m
te
information will be dropped in defense counsel’s laps on the on Sep trial.”
eve of
ed
59
-502

iv

arch

o.
The proposal was initially discussed 15 the Committee’s April 2016 meeting. Several
e, N at
n Do
members questioned the need .forhan amendment, stating that it is better to leave these matters to
Jo
Av
U try
nto S to legislative with a detailed rule. Members stated that judges
i
judicial discretion ithan
c ted
already have the necessary authority, and that they take the actions authorized by the proposed
rule when appropriate. The Department of Justice stated that it favors developing best practices
and guidance for judges and parties, rather than prescriptive rules. But a practitioner member
whose practice regularly includes complex cases countered that in his experience some courts
don’t understand the defense perspective in cases with, for example, many thousands of emails or
taped conversations. Those courts now take a one-size-fits-all approach, and that approach is
simply to follow Rule 16. He argued that the Rule needs an escape clause for a small set of cases
that require special treatment, not a routine application of Rule 16. He advocated for something
“simple” that would recognize a category of complex cases that require different treatment (e.g.,
requiring the government to identify its exhibits in advance) and allow the defense adequate time
for preparation, but also require reciprocal defense discovery. Another member urged
consideration of the impact of complex cases on CJA lawyers, who do not have the resources of
Federal Defender offices, noting that judges are not familiar with the situation CJA lawyers face
in complex cases.

Judge Molloy appointed a subcommittee, chaired by Judge Raymond Kethledge, to
consider the NYCDL/NACDL proposal.
1

September 19, 2016

Page 183 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 184 of 497

II.

SUBCOMMITTEE ACTIVITY

The Subcommittee has held two telephone conference calls.
In the first call, members agreed that they did not support the highly detailed and
prescriptive amendment proposed by NACDL/NYCDL, and then turned to the question whether
a consensus could be reached on a narrower amendment. There was considerable support for the
idea even though a detailed and prescriptive rule was not warranted, a simpler rule might provide
some benefit. It would serve as a stimulus to certain judges (perhaps those who had not
previously presided over a complex case or who were, for some reason, disengaged) to consider
making appropriate modifications in pretrial discovery and scheduling in complex cases. It
would make explicit what many judicial members agreed is already implicit in the rules. This
could be useful to judges who have not previously considered such modifications.
Accordingly, the reporters initially drafted two versions of a new rule, 16.1, for
discussion during the Subcommittee’s second call. The first, Tab C.1, lists considerations that a
judge must take into account in determining whether a case is complex, the types of
modifications that might be appropriate, and the sanctions for failure to comply. The alternative,
Tab C.2, states only in very general terms that a court may consider “modification of the timing
and format of pretrial disclosures required under these rules” in “cases of unusual complexity.”
017
Before the call, some members suggested it would be useful to have anboption that fell in the
r 8, 2
m e
te
middle between these two versions. In response, the reportersn Sep Tab C.3, which provides
o drafted
ved
i
general standards for the determination whether 02caserch complex, what adjustments are
a 59 a is
-5
. 15
warranted, and any sanctions for failure, toocomply; examples of the factors to be considered and
e N
n Do
h
the adjustments that might be .appropriate would be addressed in the committee note.
v Jo
cited

A

in US

During the Subcommittee’s second call, members discussed the three options and
concluded that they would like to review other more targeted approaches. The Department of
Justice expressed concern with the breadth of the language in the three options. Ms. Morales
expressed concern that each went beyond the initial concern that had generated the greatest
degree of agreement–cases involving a large volume of electronically stored information–to
“complex” cases. The Subcommittee agreed to consider other more targeted language;1 the
Department will prepare an alternative for discussion after consultation with its discovery
experts.
The Subcommittee anticipates presenting a final recommendation at the April meeting.
1

One member suggested, for example, that the Subcommittee consider the following as an
amendment to Rule 16:
Unless good cause is shown, electronically-stored information subject to production must
be produced in a reasonably usable format that conforms to industry standards and
includes a suitable table of contents.
2

September 19, 2016

Page 184 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 185 of 497

TAB 5B
d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 185 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 186 of 497

THIS PAGE INTENTIONALLY BLANK

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 186 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 187 of 497

16-CR-B

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 187 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 188 of 497

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 188 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 189 of 497

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 189 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 190 of 497

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 190 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 191 of 497

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 191 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 192 of 497

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 192 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 193 of 497

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 193 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 194 of 497

THIS PAGE INTENTIONALLY BLANK

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 194 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 195 of 497

TAB 5C
d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 195 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 196 of 497

THIS PAGE INTENTIONALLY BLANK

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 196 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 197 of 497

TAB C.1
d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 197 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 198 of 497

THIS PAGE INTENTIONALLY BLANK

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 198 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 199 of 497

1
2

Rule 16.1. Complex Cases: Pretrial Disclosure and
Procedures.

3
(a) Determining Whether a Case Is Complex.
4
(1) Determination. Upon a party’s motion filed
5
within 30 days of arraignment, the court must
6
determine whether the case is complex. The court
7
may also make the same determination on its own
8
motion at any time.
9
(2) Required considerations. In determining
10
whether a case is complex, the court must consider
11
the following:
12
(A) the complexity of the charged conduct and
13
of any known defenses;
14
(B) the quantity of documents and other
15
materials likely to be disclosed under 2017
these
r 8,
16
rules 1;
mbe
epte
on S
17
(C) the [technical] difficulty for the [receiving
ved
hi
9 arc
18
party] to review5those materials; and
-502
15
19
(D)e, No.other consideration [identified by a
any
n Do
Joh party that may be 2] relevant to a determination
20
A v.
n US
21ited i
whether the case is complex.
c
22
(b) Determining Whether to Modify Disclosure and
23
Change Schedules. If the court determines that a case is
1

The underlined phrase is intended to indicate that the proposed rule
does not expand the scope of disclosures required by the Rules of
Criminal Procedure. One question is whether it is too subtle to
accomplish that goal. The second—and more significant--question is
whether the proposal would expand pretrial discovery, since the Rules
do not presently require pretrial provision of a list of exhibits and
copies of those exhibits.
2
A catch-all phrase is useful, but the combination of such an openended phrase and the requirement that a court “must consider” each
factor could generate litigation about a court’s failure to consider
various issues, including issues not raised by the defense. If a catch-all
is retained, the reporters think it should be limited to factors identified
by a party. The Subcommittee might also consider whether it must be
raised “on the record or in writing.”

September 19, 2016

Page 199 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 200 of 497

24
complex, the court must consider whether, in the interests
25
of justice, to adopt measures to facilitate the parties’
26
ability to prepare for trial. Such measures may include:
27
(1) extending the time for pretrial disclosures;
28
(2) requiring each party to provide
29
(i) an index to the materials disclosed by
30
the party;
31
(ii) a searchable format for all or some of the
32
materials disclosed by the party; or
33
(iii) a tentative list of the exhibits that the party
34
intends to introduce as evidence at trial; and
35
(3) modifying the schedule for pretrial proceedings
36
or trial.
37
(c) Other considerations. In considering whether to adopt
38
measures to facilitate the parties’ ability to prepare for trial,
39
the court must also consider the safety of victims, 017
, 2 witnesses,
ber 8
ptem
40
and the public. 3
e
on S
41
(d) Remedies for failure archived
to comply. If a party fails to
0 9
42
comply with an .order 25
15-5 entered under this rule, the court may
No
43
(1)e,
Do grant a continuance;
ohn
J
44 in USA v.
(2) prohibit the party from introducing
ed
cit
45
materials not disclosed at the time or in the
46
format required by the court;
47
(3) prohibit the party from introducing
48
exhibits not included on its tentative list;
49
or
50
(4) enter any other order that is just under the
51
circumstances.
3

Although the Subcommittee discussed putting national security
interests in the text, we omitted them from this draft and referred more
generally to the safety of the public. We think this includes, but is
more encompassing, than national security. Because most prosecutions
do not involve national security concerns, we were concerned that
mandating consideration of those issues in every case might provide a
basis for an appeal in cases where the court did not expressly consider
them, even if they were not relevant. Although we think this would be
harmless error in such cases, it could generate litigation.

September 19, 2016

Page 200 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 201 of 497

TAB C.2
d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 201 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 202 of 497

THIS PAGE INTENTIONALLY BLANK

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 202 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 203 of 497

1
2
3
4
5
6
7

Rule 16.1. Pretrial Disclosure and Procedures in
Complex Cases. In cases of unusual complexity, the court
shall consider whether the interests of justice, including the
need for adequate pretrial preparation and the safety of
victims, witnesses, and the public, require modification of
the timing and format of pretrial disclosures required under
these rules.
Committee Note

8
9
10
11
12

The note could provide illustrative examples of
when a case is of unusual complexity, how the issue of
complexity may be raised, and what modifications of
timing or format might be helpful.
d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 203 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 204 of 497

THIS PAGE INTENTIONALLY BLANK

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 204 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 205 of 497

TAB C.3
d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 205 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 206 of 497

THIS PAGE INTENTIONALLY BLANK

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 206 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 207 of 497

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16

Rule 16.1. Complex Cases: Pretrial Disclosure and
Procedures.
(a) Determining Whether a Case Is Complex. Upon
a party’s motion filed within 30 days of
arraignment, the court shall determine whether the
case is complex. The court may also make the
same determination on its own motion at any
time. 1
(b) Determining Whether to Modify Disclosure and
Change Schedules. If the court determines that a case is
complex, the court shall consider whether, in the interests
of justice, 2 to adopt measures to facilitate the parties’
ability to prepare for trial. 3
(c) Remedies for Failure to Comply. If a party fails to
comply with an order entered under this rule, the court
may enter any order that is just under the circumstances. 4

017
r 8, 2
mbe
epte
1
The Committee Note could include the considerations that were
on S
ved
rchi
identified in the version previously9circulated, which were:
5 a
-502
(A) the complexity .of5 charged conduct and of any known
1 the
No
defenses; Doe,
n
oh
(B) J
A v. the quantity of documents and other materials likely to be
n US disclosed under these rules;
i
cited
(C) the [technical] difficulty for the [receiving party] to review
those materials; and
(D) any other consideration [identified by a party that may be ]
relevant to a determination whether the case is complex.
2
This version omits section (c), which required consideration of the
interests of the safety of victims, witnesses, and the public. These are
included in the interests of justice, and the Committee Note could make
that point.
3
The Committee Note could include the options identified in the
version previously circulated:
(1) extending the time for pretrial disclosures;
(2) requiring each party to provide
(i) an index to the materials disclosed by
the party;
(ii) a searchable format for all or some of the
materials disclosed by the party; or
(iii) a tentative list of the exhibits that the party
intends to introduce as evidence at trial; and
(3) modifying the schedule for pretrial proceedings or trial.
4
This version omits the remedies listed in the version previously
circulated.

September 19, 2016

Page 207 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 208 of 497

THIS PAGE INTENTIONALLY BLANK

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 208 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 209 of 497

TAB 6
d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 209 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 210 of 497

THIS PAGE INTENTIONALLY BLANK

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 210 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 211 of 497

TAB 6A
d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 211 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 212 of 497

THIS PAGE INTENTIONALLY BLANK

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 212 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 213 of 497

MEMO TO: Members, Criminal Rules Advisory Committee
FROM:

Professors Sara Sun Beale and Nancy King, Reporters

RE:

Cooperator Subcommittee

DATE:

September 1, 2016

Meeting by teleconference, the Subcommittee identified additional information and data
that would be relevant to its charge:
! How large is the problem compared to the universe of cooperators?
! What kinds of cases give rise to problems?

017
r 8, 2

be
ptem

! Is this truly a nationwide problem or are there significant geographic variations?
n Se
ed o
59
-502

iv

arch

o. 15
! How does the experience in districts which currently seal plea agreements differ, if at
e, N
n Do districts?
h
all, from the experienceJin other
v. o
cited

A

in US

The Subcommittee also requested that the reporters prepare a memorandum on the First
Amendment issues raised by CACM’s proposals. Finally, the Subcommittee requested that the
Department of Justice provide the Subcommittee with (1) information regarding its practices and
experience in the 10 largest districts as well as any other relevant districts and (2) its
recommendations.
The following materials have been provided to the Subcommittee:
The Reporters’ First Amendment Memorandum
CACM Guidance, distributed June 30, 2016
Federal Judicial Center Memorandum, May 18, 2016
Federal Judicial Center Memorandum, July 7, 2016
Chart of Local Rules and Standing Orders
Department of Justice Memorandum, June 27, 2016
Department of Justice Memorandum, May 31, 2016
Department of Justice Memorandum, July 12, 2016

Tab B
Tab C
Tab D
Tab E
Tab F
Tab G
Tab H
Tab I

At the September meeting, Judge Kaplan will provide an update on this agenda item.

September 19, 2016

Page 213 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 214 of 497

THIS PAGE INTENTIONALLY BLANK

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 214 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 215 of 497

TAB 6B
d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 215 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 216 of 497

THIS PAGE INTENTIONALLY BLANK

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 216 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 217 of 497

MEMORANDUM
TO:
FROM:
DATE:
RE:

Cooperator Subcommittee
Sara Sun Beale and Nancy King
July 21, 2016 (revised)
First Amendment Right of Access and CACM Guidance on Cooperator Safety

Introduction
This Memorandum evaluates the constitutional issues raised by the Committee on Court
Management (CACM) proposal to protect cooperators by limiting access to court records and
judicial proceedings in the following ways:
(1) Requiring all plea agreements to have a public portion and a sealed supplement that
contains a description of the defendant’s cooperation or states there was no
cooperation;
(2) Requiring all sentencing memorandum to have a public portion and a sealed
supplement that contains any references to the defendant’s cooperation or states that
there was no cooperation;
7

(3) Requiring all sentencing transcripts to have a sealed portion er 8, 201 a conference
containing
emb
Sept
at the bench that contains any discussion of the defendant’s cooperation or states that
d on
hive
9 arc
there was no cooperation;
5025
(4)
(5)

o. 15
oe, N based on cooperation to be sealed; and
Requiring all Rule 35 hn D
motions
. Jo
SA v
in U
Providing all documents or portions sealed pursuant to this policy to remain
cited

under
seal indefinitely unless otherwise ordered by the court on a case-by-case basis.

We begin with an overview of Supreme Court and circuit cases that define a First
Amendment right of access to the courts, as well as other limits on closure arising from the Sixth
Amendment right to a public trial right and the common law right to access judicial records. We
then explore circuit-level cases that apply the doctrine in the plea and sentencing settings. We
conclude with a brief analysis of some of the difficulties CACM’s proposals may have passing
constitutional scrutiny.
The First Amendment includes a qualified right of public access to criminal trials. The
public and press enjoy a presumption of access to any proceeding, hearing, filing, or document
within that right’s scope. If a court denies public access, it must do so in a manner that is
narrowly tailored to serve a compelling governmental interest. And the court must make specific
findings on both the interest advanced and the alternatives considered and rejected as
inadequate. 1 The First Amendment right of access complements other rights that protect open
1

For an overview of the requirements and procedures for sealing court records and proceedings,
see Robert Timothy Reagan, Federal Judicial Center, Sealing Court Records and Proceedings: A
Pocket Guide (2010), http://www2.fjc.gov/sites/default/files/2012/Sealing_Guide.pdf.

September 19, 2016

Page 217 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 218 of 497
Memo on First Amendment Right of Access
July 21, 2016 (revised)
Page 2

access to criminal proceedings, including the Sixth Amendment right to a public trial and the
common law right to access judicial records. The Sixth Amendment public-trial right requires
justifications for denial of access that are similar to those required under the First Amendment.
Although the Supreme Court has never considered this issue, eight circuits have held or
implied that the First Amendment right of access applies during plea proceedings, sentencing
proceedings, or both. One other circuit found a Sixth Amendment right of access but has not
reached the First Amendment issue, though it applied a similar analytical framework. In these
nine circuits, the limitations recommended by CACM will likely face scrutiny as to whether they
are narrowly tailored means of furthering a compelling governmental interest. The need to
protect the lives and safety of cooperating defendants and their families is a compelling interest,
but appeals courts have consistently followed Supreme Court precedent requiring that access be
restricted only on a case-by-case basis, not in a broad categorical fashion. Additionally, three
circuits have to date recognized a common law right of access to plea or sentencing proceedings
or documents; two of those three circuits found it unnecessary to reach constitutional issues
because the common law required access.
Several federal districts currently employ procedures that resemble the categorical
approach in the CACM proposals. See, e.g., E.D. Tex. Crim. R. 49. The current7policies in each
01
r 8, 2
district are summarized in the Department of Justice chart “Local Ruleseand Standing Orders
mb
epte
on S
Regarding Sealing of Court Documents.” 2 In general, theseddistricts automatically seal similar
ve
rchi
5 a
portions of every case file in order to better conceal9cooperators’ identities. Indeed, the CACM
-502
o. 15
proposal takes note of local ruleshsuch e, Nthese. It also references a recent order by Chief Judge
n Do as
. Jo
Ron Clark of the UnitedUSA v District Court for the Eastern District of Texas, which evaluated
n States
i
cited
default sealing practices on First Amendment grounds and determined that such restrictions
survive constitutional scrutiny. See United States v. McCraney, 99 F. Supp. 3d 651, 660 (E.D.
Tex. 2015) [hereinafter Clark Order]. On that decision’s reasoning, protecting cooperators from
harm requires sealing a portion of every plea agreement—even for non-cooperators—in order
avoid “paint[ing] a bulls-eye on every defendant whose plea agreement was not unsealed.” Id.
I.

First Amendment Right of Access—Overview

The public’s qualified First Amendment right of access derives from the right to attend
criminal trials, which the Supreme Court has said “is implicit in the guarantees of the First
Amendment.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 (1980). Courts
presume proceedings and documents that fall within the right’s scope to be open. This
constitutional “presumption of openness” may be overcome only if restrictions are essential to
preserving a “compelling governmental interest, and [are] narrowly tailored to serve that interest.”
Press-Enterprise Co. v. Superior Court (Press-Enterprise I), 464 U.S. 501, 510 (1984) (citations
omitted).
2

Note, however, that these policies may be modified in response to CACM’s June 30, 2016
Memorandum “INTERIM GUIDANCE FOR COOPERATOR INFORMATION.”

September 19, 2016

Page 218 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 219 of 497
Memo on First Amendment Right of Access
July 21, 2016 (revised)
Page 3

A. What is Covered by the First Amendment Right of Access: The “Experience and
Logic” Test
The First Amendment right of access most obviously attaches during the proof phase of a
criminal trial. Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 602 (1982) (invalidating
state law that excluded the press and general public from the courtroom during underage sexualoffense victims’ testimony). In addition to the trial itself, the right of access also applies to other
stages of criminal adjudication. Whether a particular proceeding falls within the right’s scope
depends on a two-part inquiry that analyzes “considerations of experience and logic.” PressEnterprise Co. v. Superior Court (Press-Enterprise II), 478 U.S. 1, 9 (1986). This test originated
with Chief Justice Burger’s plurality opinion in Richmond Newspapers, Inc. v. Virginia, 3 which
explained that the public’s right to attend criminal trials emanates from the longstanding AngloAmerican tradition of holding open trials, 448 U.S. at 564–66, and the numerous salutary aspects
of that practice, id. at 569. A majority of the Court reaffirmed the right of access and the
“experience and logic” inquiry in Globe Newspaper Co. v. Superior Court, 457 U.S. at 602, and
applied it to extend the right of access to jury voir dire proceedings in Press-Enterprise I, 464
U.S. at 509, and to preliminary hearings in Press-Enterprise II, 478 U.S. at 13.
The “experience and logic” test asks: (1) “whether the place and process has historically
17
8, 20
been open to the press and general public” (experience) and (2) “whetherr public access plays a
mbe
epte
on S
significant positive role in the functioning of the particulareprocess in question” (logic). Id. at 8.
v d
i
arch
In answering the first question, a court must1“not 259 to the particular practice of any one
-50 look
o. 5
e, N
jurisdiction, but instead ‘to the experience in that type or kind of hearing throughout the United
n Do
. Joh
States.’” El Vocero dein USA v Rico v. Puerto Rico, 508 U.S. 147, 150 (1993) (per curiam)
Puerto
cited
(emphasis in original) (quoting Rivera-Puig v. Garcia-Rosario, 983 F.2d 311, 323 (1st Cir.
1992)). In the second inquiry, the Court has emphasized the benefits of holding trials and other
criminal proceedings openly, including “community therapeutic value,” Richmond Newspapers,
448 U.S. at 570, “protect[ing] the free discussion of governmental affairs,” Globe Newspaper,
457 U.S. at 604 (citations omitted), and enhancing the criminal process’s actual and perceived
fairness, Press-Enterprise I, 464 U.S. at 505–08.
The Supreme Court has not addressed the question of whether the First Amendment right
extends to documents as well, but with one exception, 4 nearly every circuit has held that the right

3

Richmond Newspapers involved a highly publicized Virginia murder case that had already seen
one jury conviction overturned on appeal and two mistrials. 448 U.S. at 559. The judge cleared
the courtroom out of concerns that publicity would taint the trial, and a newspaper challenged the
judge’s closure. Id. at 560. No opinion commanded a majority, but seven Justices agreed that the
First Amendment protects the right of the public to attend trials. See id. at 580.
4
We discuss United States v. Hickey, 767 F.2d 705 (10th Cir. 1985), in note 18, infra.

September 19, 2016

Page 219 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 220 of 497
Memo on First Amendment Right of Access
July 21, 2016 (revised)
Page 4

to access criminal proceedings extends to the documents filed in connection with those
proceedings. 5
B. Restrictions on the Right of Access: Heightened Scrutiny
If the right of access attaches to a particular proceeding or document, the right is not
absolute; rather, the qualified right of access amounts to a “presumption of openness” that may
be overcome if access restrictions are essential to preserving a “compelling governmental interest,
and [the restrictions are] narrowly tailored to serve that interest.” Press-Enterprise I, 464 U.S. at
510 (citations omitted). 6 In Globe Newspaper, the Court explained in greater detail the
appropriate circumstances for restricting public access. 457 U.S. at 607. There, the Court
confronted a Massachusetts law that required judges in sexual-offense cases with underage
victims to exclude the press and general public from the courtroom while the victim testified. Id.
at 598. Echoing Richmond Newspapers, the Court stated that any attempt to restrict the right of
access “must . . . show[] that the denial is necessitated by a compelling governmental interest,
and is narrowly tailored to serve that interest.” Id. at 607. Applying that standard, the Court
conceded that victims’ physical and psychological health was a compelling interest, but rejected
the statute’s categorical approach to closing all cases involving underage victims. Id. at 608.
Instead, trial courts must make case-by-case determinations on whether closure 7 necessary to
01 is
r 8, 2
mbe
protect individual victims. Id.
pte
n Se
do
hive
9 arc
In Press-Enterprise I, the Court more clearly defined the narrow-tailoring inquiry. 464
025
15-5
No. sought to attend jury voir dire in a highly publicized
U.S. at 513. There, members of newsomedia
e,
hn D
v. Jo The judge rejected the media’s request out of fear prospective
rape and murder case. Id. SA 503.
at
in U
cited lack candor were members of the press to attend. Id. Voir dire lasted six
jurors’ responses would

weeks. Id. at 510. Only three days of those six weeks were open. Id. The press also requested
transcripts of the proceedings, but counsel for both the state and defense objected, citing jurors’
privacy interests in keeping their voir dire responses confidential. Id. at 504. The judge agreed.
5

See, e.g., In re New York Times Co., 828 F.2d 110, 114 (2d Cir. 1987) (agreeing that the First
Amendment right of access “appl[ies] to written documents submitted in connection with judicial
proceedings that themselves implicate the right of access”); In re Washington Post Co., 807 F.2d
383, 390 (4th Cir. 1986) (“[T]he First Amendment right of access applies to documents filed in
connection with [criminal hearings], as well as to the hearings themselves.”); United States v.
Smith, 776 F.2d 1104, 1112 (3d Cir. 1985) (applying First Amendment analysis to documents
after finding “no reason . . . why th[at] analysis does not apply as well to judicial documents”);
Associated Press v. U.S. Dist. Court, 705 F.2d 1143, 1145 (9th Cir. 1983) (“There is no reason to
distinguish between pretrial proceedings and the documents filed in regard to them.”).
6
Like the “experience and logic” test, this variety of heightened scrutiny stems from Chief
Justice Burger’s plurality opinion in Richmond Newspapers, which stated that the presumption of
openness can only be overcome by “an overriding interest articulated in findings.” 448 U.S. at
581. The opinion left open exactly what circumstances justify closure, but noted that that “a trial
judge [may], in the interest of the fair administration of justice, impose reasonable limitations on
access to a trial.” Id. at 581 n.18.

September 19, 2016

Page 220 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 221 of 497
Memo on First Amendment Right of Access
July 21, 2016 (revised)
Page 5

Id. The Supreme Court first held that jury voir dire implicates the First Amendment, and then
applied the compelling-interest test to the judge’s six-week voir dire closure. Id. at 513. The
Court concluded that the closure was unconstitutional. Id. The judge denied access to far more
information than necessary to protect the interests involved. Id. And he did not articulate
requisitely specific findings, nor did he consider alternatives to total closure. Id.
In Press-Enterprise II, the Court further explained the required relationship between a
compelling interest and closure. 478 U.S. 14–15. There, a California trial judge had closed
access to a preliminary hearing pursuant to a state statute that authorized excluding the press and
public from criminal trials if there was a “reasonable likelihood” that publicity would
substantially prejudice a defendant’s right to a fair trial. Id. at 14. After holding that the right of
access applies to preliminary hearings, the Court held that the statute’s “reasonable likelihood”
standard fell short of what the First Amendment requires. Id. at 14–15. If “fair trial” is the
interest asserted to overcome the presumption of openness, the First Amendment requires a
“substantial probability” of prejudice to the interest in a fair trial. Id.
The Court returned to preliminary hearings in El Vocero de Puerto Rico v. Puerto Rico,
which addressed a Puerto Rico rule of criminal procedure that provided preliminary hearings
“shall be held privately” unless the defendant requested otherwise. 508 U.S. at1148. Puerto Rico
0 7
r8 2
sought to justify the rule based on concerns that publicity would undermine, the interest in a fair
mbe
epte
o S
trial, but the Court rejected Puerto Rico’s categorical closures n reemphasized that even
ved and
rchi
59 a
legitimate concerns “must be addressed on a1case-by-case basis.” Id. at 151. Citing Press-502
o. 5
Enterprise II, the Court reiterated n Doe, N closure requires specific findings that there is a
that every
. Joh
substantial probabilityin USA v would harm a compelling interest, and that reasonable
openness
ited
alternatives couldcnot protect those interests just as well. Id.
Narrow tailoring may also involve the duration of closure. In Gannett Co. v. DePasquale,
443 U.S. 368 (1979), the Court upheld the closure of a suppression hearing when the trial court
released the hearing transcript shortly after the defendants pleaded guilty, noting that “any denial
of access in this case was not absolute but only temporary.” Id. at 393. “Once the danger of
prejudice dissipated, a transcript of the suppression hearing was made available.” Id. Through the
hearing transcript, “[t]he press and the public then had a full opportunity to scrutinize the
suppression hearing.” Id. In dissent, Justice Blackmun commented that “[p]ublic confidence
cannot long be maintained when important judicial decisions are made behind closed doors and
then simply announced in conclusive terms.” Id. at 429 (Blackmun, J., dissenting) (quoting
United States v. Cianfrani, 573 F.2d 835, 851 (3d Cir. 1978)).
II.

Other Limits on Closure: The Sixth Amendment and the Common Law
A. Sixth Amendment

In addition to the First Amendment right of public access, the Sixth Amendment
guarantees the accused in criminal cases “the right to a speedy and public trial.” U.S. Const.

September 19, 2016

Page 221 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 222 of 497
Memo on First Amendment Right of Access
July 21, 2016 (revised)
Page 6

amend. VI. Although the Supreme Court has not resolved the question whether the First and
Sixth Amendments are coextensive, 7 there are significant similarities in the analysis. In Waller v.
Georgia, 467 U.S. 39 (1984), which involved the closure of a lengthy suppression hearing, 8 the
Court implied a close relationship between the two rights. See id. at 44. It stated that “there can
be little doubt that the explicit Sixth Amendment right of the accused is no less protective of a
public trial than the implicit First Amendment right of the press and public.” Id. at 46. Citing
Richmond Newspapers and its progeny as support, the Court concluded that, like the First
Amendment right of access, the public-trial right applied to suppression hearings. See id. at 44–
45 (citing Richmond Newspapers, 448 U.S. at 555; Globe Newspaper, 457 U.S. at 596; PressEnterprise I, 464 U.S. at 501). It emphasized that interests advanced by opening trial—“ensuring
that judge and prosecutor carry out their duties responsibly,” encouraging witnesses to come
forward, and discouraging perjury—“are no less pressing in a hearing to suppress wrongfully
seized evidence.” Waller, 467 U.S. at 46.
Having ruled that the right applied, the Court adopted Press-Enterprise I’s heightened
scrutiny to evaluate the closure’s constitutionality, id. at 45, and articulated a four-factor test for
closing a proceeding, id. at 48. First, “the party seeking to close the hearing must advance an
overriding interest that is likely to be prejudiced.” Id. Second, “the closure must be no broader
0 7
than necessary to protect that interest.” Id. Third, “the trial court must consider1reasonable
r 8, 2
mbe
epte
alternatives to clos[ure].” Id. And fourth, the court “must make findings adequate to support
on S
ved
i
closure.” Id. This articulation tracks the stages for 59 arch
evaluating closure in Richmond Newspapers
-502
o. 15
and its progeny.
oe, N
hn D
v. Jo
SA the closed
test to
in U

Applying this
suppression hearing, the Court concluded that the closure
cited
contravened the Sixth Amendment’s public-trial guarantee. Id. First, the prosecution’s privacy
arguments lacked specificity and the resulting trial-court findings were “broad and general, and
did not purport to justify closure of the entire hearing.” Id. Further, the court did not consider
alternatives to entire and immediate closure. Id. Finally, the closure was far broader than
necessary. Id. at 49. Even if the tapes implicated the interests at issue, playing them lasted fewer
than three hours, which did not justify closing all seven days of pretrial hearings. Id.
Later precedent also suggests meaningful overlap between the First and Sixth
Amendment rights and their application. In Presley v. Georgia, 558 U.S. 209, 213 (2010), the
Court heard a defendant’s challenge to closed jury voir dire proceedings. The Court concluded
7

See Presley v. Georgia, 558 U.S. 209, 213 (2010) (“The extent to which the First and Sixth
Amendment public trial rights are coextensive is an open question . . . .”).
8
The trial court in Waller had accepted the government’s arguments that an open suppression
hearing could cause wiretap information to be inadmissible under Georgia’s wiretap statute, and
that publicly playing the recordings would compromise the privacy interests of uncharged third
parties. 467 U.S. at 41–42. The closed hearing lasted seven days, even though playing the tapes
of the intercepted phone conversations lasted fewer than three hours. Id.

September 19, 2016

Page 222 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 223 of 497
Memo on First Amendment Right of Access
July 21, 2016 (revised)
Page 7

that Press-Enterprise I’s holding—that the First Amendment public-access right extends to jury
voir dire—dictated that the Sixth Amendment public-trial right covered jury selection as well. Id.
at 213 (“[T]here is no legitimate reason, at least in the context of juror selection proceedings, to
give one who asserts a First Amendment privilege greater rights to insist on public proceedings
than the accused has.”). In particular, the Presley Court noted that Waller relied heavily on
Press-Enterprise I and that the two decisions came down during the same term. Id. at 212.
Although the First and Sixth Amendment analyses are similar, challenges under the two
rights differ in some meaningful ways. For example, the press and public can assert the First
Amendment right, whereas the Sixth Amendment right belongs to the defendant. See Gannett
Co., 443 U.S. at 379–80 (1979) (citations omitted) (“[The Sixth Amendment’s] guarantee . . . is
personal to the accused. Our cases have uniformly recognized the public trial guarantee as one
created for the benefit of the defendant.”). 9 The remedies for a First Amendment right-of-access
violation only involve the secrecy or openness of information, whereas Sixth Amendment
violations have implications for the integrity and viability of a defendant’s conviction. See
Waller, 467 U.S. at 49–50 (discussing the appropriate remedy for the trial court’s
unconstitutional closure). 10 Because Sixth Amendment cases have important implications for
7

, 20 or
In Gannett Co. v. DePasquale, a case decided before Richmond Newspapers 1 Waller, the
ber 8
ptem or press a right to access
Supreme Court held that the Sixth Amendment did not affordon Sepublic
the
d
a pretrial suppression hearing. 443 U.S. at 394. In 59concurring opinion, Justice Powell agreed
a archive
02
with the Court’s Sixth Amendment conclusion,5but argued that the press and public “ha[ve] an
15No.
,
interest protected by the First and n Doe
h Fourteenth Amendments in being present at . . . pretrial
v. Jo
suppression hearing[s].”USAat 397 (Powell, J., concurring). The following term, the Court
in Id.
c ted
decided Richmondi Newspapers, which limited Gannett’s holding to the Sixth Amendment and
held that the public’s right to attend criminal trials is “implicit in the guarantees of the First
Amendment.” 448 U.S. at 580.
10
One other difference deserves mention. The circuits have recognized a less demanding
analysis under the Sixth Amendment for the exclusion of some but not all observers, and, in
some courts, for “trivial” closures. As the Sixth Circuit explained in United States v. Simmons,
797 F.3d 409 (6th Cir. 2015), “courts of appeals that have distinguished between partial closures
and total closures modify the Waller test so that the ‘overriding interest’ requirement is replaced
by requiring a showing of a ‘substantial reason’ for a partial closure.” Id. at 414. The “modified
Waller test” provides that:
(1) a party seeking a partial closure of the courtroom during proceedings must show a
“substantial reason” for doing so that is likely to be prejudiced if no closure occurs;
(2) the closure must be no broader than necessary or must be “narrowly tailored”;
(3) the trial court must consider reasonable alternatives to closing the proceeding; and
(4) the trial court must make findings adequate to support the closure.
Id. The Sixth Circuit joined other circuits in adopting the test for Sixth Amendment cases where
district courts bar “some, but not all, spectators from the courtroom during the proceedings.” Id.
This lesser standard is based in part on an assessment that, because some members of the public
retain access, “less than complete closure does not ‘implicate the same secrecy and fairness
concerns that a total closure does.’” Wayne R. LaFave, Jerold H. Israel, Nancy J. King, & Orin
9

September 19, 2016

Page 223 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 224 of 497
Memo on First Amendment Right of Access
July 21, 2016 (revised)
Page 8

First Amendment challenges to closed plea and sentencing proceedings and sealed plea
agreements, lower court authority addressing Sixth Amendment challenges will be included in
the analysis that follows.
B. Common Law
The First and Sixth Amendments are complemented by a common law public right “to
inspect and copy public records and documents, including judicial records and documents.”
Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978). The Supreme Court first
addressed the right in Nixon v. Warner Communications, which involved media requests for
copies of the Nixon White House tapes. Id. at 591. In the post-Watergate criminal trial of
Nixon’s aides, prosecutors played the tapes in open court for the jury, press, and observing
public, but the court furnished observers with transcripts instead of copies of the actual tapes. Id.
at 591–92. 11 The issue before the Court was whether the common law right to inspect judicial
records required the district court to release audio format copies. Id. at 589.
The Court explained that the right emanates from citizens’ interest in “keep[ing] a
watchful eye on the workings of public agencies” and from the press’s role in “publish[ing]
information concerning the operation of government.” Id. at 598. The Warner Communications
017
opinion gave examples of access denials “where court files might havebbecome a vehicle for
r 8, 2
m e
te
n Se the
improper purposes.” Id. 12 But conceding the difficulty of defining p right and its appropriate
ed o
59
-502

15

iv

arch

S. Kerr, 6 Criminal Procedure § 24.1(b) No.
e, (citations omitted). The willingness of appellate courts
n Do
to accept this alternative test v. Johalso be related to the inability to apply harmless-error analysis
may
USA
to a Sixth Amendmentinpublic-access violation; any violation of this right requires relief,
cited
regardless of prejudice to the defendant. See Carson v. Fischer, 421 F.3d 83, 94 (2d Cir. 2005)
(explaining the “very different” inquiries of harmless error and triviality); see also LaFave et al.,
supra, § 24.1(b) n.28 (collecting state court opinions rejecting this modification).
Because CACM’s proposals require indefinite sealing, denying all public access, it is
difficult to characterize these measures as either trivial or partial. The Supreme Court has not
addressed whether a “partial” or “trivial” closure test is acceptable under either the First or Sixth
Amendments. Only limited authority can be found applying such a test in a First Amendment
challenge. See United States v. Tsarnaev, 2015 WL 631330, at *2 (D. Mass. Feb. 13, 2015)
(rejecting newspaper challenge and finding “the current arrangements constitute at most a
modest ‘partial closure,’ with proceedings that are substantially more open than they are
closed”); see also United States v. Smith, 426 F.3d 567, 575 (2d Cir. 2005) (explaining that even
assuming defendant could bring First Amendment claim, “[the court’s holding] that the partial
closure of Smith’s trial was justified under Waller also resolves his First Amendment claim”).
11
After the defendants’ convictions, the press sought audio copies of the tapes. Warner
Commc’ns, 435 U.S. at 591. The judge denied the requests because the defendants had filed
notices of appeal and the tapes’ release might prejudice their appeal rights. Id. at 595. The judge
also reasoned that the transcripts satisfied the public need for the tapes’ content. Id.
12
The Court did not define exactly what would constitute an “improper purpose,” but gave
several examples. See id. at 598. These examples were preventing publication of nasty divorce
details to “gratify private spite or promote public scandal,” and avoiding court files from

September 19, 2016

Page 224 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 225 of 497
Memo on First Amendment Right of Access
July 21, 2016 (revised)
Page 9

restrictions, the Court said access decisions are “best left to the sound discretion of the trial
court . . . in light of the relevant facts and circumstances of the particular case.” Id. at 599.
Since Warner Communications, the Supreme Court has not elaborated on the common
law right, but there are several differences from the First Amendment. In contrast to the First
Amendment, which protects the public’s right to attend live events, the common law right is
rooted in access to records, not proceedings. Second, the showing required to overcome the
common law right may differ from that of the First Amendment. Warner Communications calls
for balancing interests “in light of the relevant facts and circumstances of the particular case,”
435 U.S. at 599, whereas the First Amendment requires a compelling interest and narrowly
tailored restrictions, see Press-Enterprise I, 464 U.S. at 510. Some courts have concluded that
the First Amendment right requires more exacting scrutiny, 13 but others have drawn close
comparisons between the two inquiries. 14 Third, in terms of standards of review, appeals courts
review the common law determination for abuse of discretion, whereas constitutional claims
prompt de novo review. See In re Providence Journal, 293 F.3d 1, 10–11 (1st Cir. 2002); In re
State-Record Co., Inc., 917 F.2d 124, 127 (4th Cir. 1990). Finally, the common law right is
subject to being superseded by statute, whereas the First Amendment right is not. 15 Nevertheless,
the common law right overlaps with the First Amendment in application.
2017

In sum, CACM’s proposal implicates the common law righttember 8, judicial records as
to access
ep
on S
d
well as the First and Sixth Amendments.
hive
rc

59 a

III.

502
. 15-

, N Pleas, Plea Agreements, and Sentencing
Restrictions on Public Accesseto o
Do
n
. Joh
SA v
The CACMeReport recommends
in U
cit d

measures that will restrict access to plea agreements,
sentencing memoranda, transcripts of guilty pleas, sentencing hearing transcripts, and Rule 35
motions. Portions of the plea colloquy and sentencing hearing would take place at the bench, and
those portions of the transcripts would be sealed. Although the press and public would not be
“serv[ing] as reservoirs of libelous statements for press consumption or as sources of business
information that might harm a litigant’s competitive standing.” Id.
13
See, e.g., Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 124 (2d Cir. 2006) (deciding
that “the more stringent First Amendment framework applie[d]”); Rushford v. New Yorker
Magazine, Inc., 846 F.2d 249, 253 (4th Cir. 1988) (“The common law does not afford as much
substantive protection to the interests of the press and the public as does the First Amendment.”).
14
See, e.g., In re Providence Journal Co., Inc., 293 F.3d 1, 10 (1st Cir. 2002) (“Although the two
rights of access are not coterminous, courts have employed much the same type of screen in
evaluating their applicability to particular claims.”); In re Associated Press, 162 F.3d 503, 509
(7th Cir. 1998) (explaining that the common law right requires findings to support sealing).
15
In Warner Communications, for example, the Court did not weigh the interests involved
because it ruled Congress provided the appropriate procedure for releasing the tapes via the
Presidential Recordings Act. See 435 U.S. at 603–04. Legislatures, of course, cannot supersede
the Constitution, and the Court has invalidated legislative acts that contradict the First
Amendment. See Globe Newspaper, 457 U.S. at 602; El Vocero, 508 U.S. at 151.

September 19, 2016

Page 225 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 226 of 497
Memo on First Amendment Right of Access
July 21, 2016 (revised)
Page 10

physically barred from the courtroom during this part of the proceedings, neither would be able
to hear the conversation between the court, the government, and the defense.
The Supreme Court has not decided whether there is a qualified First Amendment right to
access proceedings or materials beyond trials, preliminary hearings, and jury selection. But the
circuits that have considered the First Amendment’s application during the plea and sentencing
phases have held that the right of access applies. See infra Part III.A.1.
If the recommended restrictions fall within the First Amendment’s scope, they would
trigger heightened scrutiny. Because the Supreme Court and circuit courts have to date rejected
categorical, across-the-board closure policies and required case-by-case justifications, the courts
would likely have to break new ground in order to conclude that a national default rule of sealing
proceedings and documents passes constitutional muster.
A. Determining Whether the First Amendment Right of Access Applies
The Supreme Court has not addressed whether the First or Sixth Amendment protects
public access to plea and sentencing proceedings, but, applying the “experience and logic” test,
every circuit that has considered the issue has concluded that the right of access is applicable to
pleas, plea proceedings, and sentencing proceedings. In contrast, courts of appeals have held that
17
8, 20
the right of access is not applicable to presentence reports (PSRs). ptember plea and sentencing
Unlike
n Se
proceedings, PSRs traditionally have been confidential. hived othey differ from other motions and
c Also,
9 ar
5025
filings because probation officers, rather than5parties, submit PSRs. 16 Similarly, the First and
.1 , No
Doe
Sixth Amendment rights of accessnhave been held not to apply to grand jury proceedings, which
oh
v. J
historically have been in USA to the public, or to Title III applications and search warrant
closed
ed
cit
affidavits, for which there is no tradition of public access.
1. Pleas, Plea Proceedings, and Sentencing
a. Plea agreements, plea hearings, and transcripts
Six circuits—the District of Columbia, Second, Fourth, Sixth, Seventh, and Ninth—have
held that plea agreements, plea hearings, or plea hearing transcripts fall within the First
Amendment’s scope. 17 The Ninth Circuit has also held the right covers a plea agreement’s
16

See United States v. Santarelli, 729 F.2d 1388, 1390 (11th Cir. 1984) (“[W]hen the probation
department submits its probation report to the court for the purpose of sentencing it is a part of
the judiciary, yet when the Government submits evidence . . . for the purpose of sentencing it is
an adversary in a judicial hearing arising from the prosecution and conviction of the defendant.”)
17
United States v. DeJournett, 817 F.3d 479, 485 (6th Cir. 2016) (“[T]he public has a
constitutional right to access plea agreements . . . .”); Washington Post v. Robinson, 935 F.2d
282, 288 (D.C. Cir. 1991) (“[T]here is a first amendment right of access to plea
agreements . . . .”); Oregonian Publ’g Co. v. U.S. District Court, 920 F.2d 1462, 1466 (9th Cir.
1990) (“[T]he press and public have a qualified right of access to plea agreements and related
documents . . . .”); United States v. Danovaro, 877 F.2d 583, 589 (7th Cir. 1989) (“[M]embers of

September 19, 2016

Page 226 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 227 of 497
Memo on First Amendment Right of Access
July 21, 2016 (revised)
Page 11

cooperation addendum. In re Copley Press, Inc., 518 F.3d 1022, 1026 (9th Cir. 2008). We found
no contrary authority. 18
Applying the “experience and logic” test, the courts have concluded that plea hearings
traditionally have been open, and that their openness promotes effective and just functioning of
the criminal adjudication process. In United States v. Haller, 837 F.2d 84 (2d Cir. 1988), for
example, the Second Circuit considered whether the right of access extends to plea agreements
and plea hearings, and concluded that, under the “experience and logic” test, it does. Id. at 86.
First, the court observed that plea hearings typically have been open to the public. Id. In terms of
logic, the court reasoned that, as in the case of criminal trials, access to hearings and filings for
criminal pleas allows public scrutiny of court and prosecutor conduct. Id. at 87. The court also
noted that pleas bear particular importance because they are, by far, the most common form of
criminal adjudication. Id. Cf. Missouri v. Frye, 132 S. Ct. 1399, 1407 (2012) (citations omitted)
(“[P]lea bargaining . . . is not some adjunct to the criminal justice system; it is the criminal
justice system.”); Jocelyn Simonson, The Criminal Court Audience in A Post-Trial World, 127
Harv. L. Rev. 2173 (2014) (discussing the interaction of criminal cases’ overwhelming
disposition by guilty plea and public scrutiny of the criminal justice system).

d on

o.
oe, N

hive
9 arc

017
r 8, 2

Se

be
ptem

025

15-5

nD

the public . . . may attend SA v. Joh
proceedings at which pleas are taken and inspect the transcripts, unless
U
ed in
there is strong justification for closing them.”); United States v. Haller, 837 F.2d 84, 86 (2d Cir.
cit
1988) (“[W]e conclude there is a right of access to plea hearings and to . . . plea agreements.”);
In re Washington Post Co., 807 F.2d 383, 390 (4th Cir. 1986) (“[W]e hold that the First
Amendment right of access applies to documents filed in connection with plea hearings and
sentencing hearings in criminal cases, as well as to the hearings themselves.”).
18
We note, however, that an early decision by the Tenth Circuit, United States v. Hickey, 767
F.2d 705 (10th Cir. 1985), rejected a claim that the First Amendment right applies to sealed plea
bargain documents. The First Amendment was not the principal focus of the case. The court
stated, id. at 706, that the question presented was whether the common law right of access to
court records extends to the sealed plea bargain of a criminal defendant now enrolled in the
witness protection program of the United States Marshal’s Service. Acknowledging the common
law right to inspect and copy judicial records, the majority concluded that the district judge had
not abused his discretion in balancing the competing interests and striking the balance in favor of
the defendant’s safety. Id. at 708–09. Judge McKay dissented from this portion of the court’s
opinion, concluding that there had been no showing that the plea bargain would provide
information about the defendant’s current location, and thus the public’s right of access had not
been overcome. Id. at 711. But in a brief paragraph the court also rejected the defendant’s
constitutional arguments under the First and Sixth Amendments, noting that Press Enterprise I
and Waller did not overrule or question Nixon, which it found to be the governing authority for
court documents. Id. at 709. The Hickey decision, however, pre-dated Press-Enterprise II and the
court reached its conclusion without applying the “experience and logic” test.

September 19, 2016

Page 227 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 228 of 497
Memo on First Amendment Right of Access
July 21, 2016 (revised)
Page 12

b. Sentencing
Six circuits—the Second, Fourth, Fifth, Seventh, Ninth, and Eleventh—have concluded
or implied that the First Amendment right of access attaches during sentencing, including
sentencing hearings, transcripts of those hearings, and associated sentencing memoranda. 19 The
Ninth Circuit has also held that the right applies to motions for a reduction of sentence pursuant
to Rule 35 of the Rules of Criminal Procedure. CBS, Inc. v. U.S. District Court, 765 F.2d 823,
825 (9th Cir. 1985). And two circuits—the Eighth and Ninth—have held that the Sixth
Amendment protects public access to sentencing. 20 We found no contrary authority.
Courts applying the “experience and logic” inquiry to sentencing have found that the
right applies for many of the same reasons that it applies to pleas. The Fifth Circuit’s decision In
re Hearst Newspapers, LLC, 641 F.3d 168 (5th Cir. 2011), 21 relied on the historical experience
of publicly open sentencing proceedings. Id. at 177. As for logic, the court drew comparisons
between trials and sentencings: like a public trial, a public sentencing builds public confidence in
the criminal justice system, promotes accurate factfinding, informs discussion of governmental
affairs, allows for “review in the forum of public opinion,” id. at 179, and provides “community
therapeutic value,” id. at 180 (quoting Richmond Newspapers, 448 U.S. at 570). The court also
017
r 8, 2
mbe
In re Hearst Newspapers, LLC, 641 F.3d 168, 176 (5th Cir. 2011)e(“[T]he public and press
ept
on S
have a First Amendment right of access to sentencing proceedings.”); United States v. Biagon,
ved
rchi
59 a
510 F.3d 844, 848 (9th Cir. 2007) (applying First2Amendment closure analysis to sentencing
-50
15
hearing); United States v. Alcantara, oe, NF.3d 189,199 (2d Cir. 2005) (“[A]s with plea
396 o.
nD
proceedings, a qualified Firstv. Joh
Amendment right of public access attaches to sentencing
USA
ed inStates v. Eppinger, 49 F.3d 1244, 1253 (7th Cir. 1995); United States v.
proceedings.”); United
cit

19

Kooistra, 796 F.2d 1390, 1391 (11th Cir. 1986) (remanding for tailoring findings where district
judge closed sentencing proceedings); In re Washington Post Co., 807 F.2d at 390. One D.C.
Circuit opinion assumed without deciding that the right applies at sentencing. United States v.
Brice, 649 F.3d 793, 794 (D.C. Cir. 2011).
20
E.g., United States v. Thompson, 713 F.3d 388, 394 (8th Cir. 2013); United States v. Rivera,
682 F.3d 1223, 1229 (9th Cir. 2012) (holding that the Sixth Amendment right to a public trial
attaches to sentencing proceedings, reasoning “we see no reason to give the public a greater right
to insist on public proceedings than the individual for whose benefit the public trial right was
created—the criminal defendant”). In Thompson, the Eighth Circuit, “informed by the Court’s
First Amendment public access jurisprudence,” reasoned that “we must determine whether
sentencing hearings are traditionally conducted in an open fashion, and whether public access
operates to curb prosecutorial or judicial misconduct and furthers the public interest in
understanding the criminal justice system,” and found the right applies to sentencing. 713 F.3d at
393–94. It upheld the exclusion of the defendant’s family during testimony of one witness who
had expressed fear about testifying. Id. at 396. Judge Gruender concurred, finding that the
defendant’s right to a public sentencing is based in the Fifth, not Sixth Amendment. Id.
(Gruender, J., concurring).
21
Hearst Newspapers involved the sentencing of Oziel Cardenas-Guillen, former leader of the
notoriously violent Gulf Cartel. 641 F.3d at 172. Based on safety concerns, the district court
closed the sentencing hearing and sealed the filings and orders surrounding it. Id. at 173.

September 19, 2016

Page 228 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 229 of 497
Memo on First Amendment Right of Access
July 21, 2016 (revised)
Page 13

noted that the right of access is particularly important in cases involving guilty pleas because no
trial or jury regulates the adjudication. Id. at 177.
The First and Third Circuits avoided the constitutional issue by finding a common law
right of access to sentencing documents. 22 In United States v. Kravetz, 706 F.3d 47 (1st Cir.
2013), the First Circuit held that the common law right of access applied to sentencing
memoranda and third-party letters filed with the court for sentencing. Id. at 57–58. As to
sentencing memoranda, the court reasoned they “bear directly on criminal sentencing in that they
seek to influence the judge’s determination of the appropriate sentence,” and that there was “no
principled basis for affording greater confidentiality as a matter of course to sentencing
memoranda than is given to memoranda pertaining to the merits of the underlying criminal
conviction, to which we have found the common law right of access applicable.” Id. at 56. It
explained:
Sentencing memoranda, which contain the substance of the parties’ arguments for
or against an outcome, are clearly relevant to a studied determination of what
constitutes reasonable punishment. Thus, like substantive legal memoranda
submitted to the court by parties to aid in adjudication of the matter of a
defendant’s innocence or guilt, sentencing memoranda are meant, 201impact the
to 7
r8
mbe
court’s disposition of substantive rights.”
pte
n Se
do

hive

arc
0259

-5
Id. It reasoned that public access to such memoranda “allows the citizenry to monitor the
o. 15
oe, N quality, honesty and respect for our legal system” and
functioning of our courts, thereby n D
insuring
. Joh
SA v
“may serve to check d in Utemptation that might be felt by either the prosecutor or the court to
any
cite
seek or impose an arbitrary or disproportionate sentence; promote accurate fact-finding; and in
general stimulate public confidence in the criminal justice system by permitting members of the
public to observe that the defendant is justly sentenced.” Id. at 56–57 (citations, internal
quotation marks, and alterations omitted). It also ruled that letters—both those attached to
sentencing memoranda and sent directly to the court by third parties—were presumptively
accessible. Id. at 59. It remanded for a document-by-document balancing analysis and redaction
if necessary. Id. at 60.

2. PSRs and Other Exclusions from the First Amendment Right of Access
Applying the experience and logic test, circuit courts have identified several exclusions 23
from the First Amendment right of public access in the context of criminal proceedings: grand
22

The First Circuit court avoided deciding the access issue on First Amendment grounds in
Kravetz, 706 F.3d at 60–61, discussed in the text. The Third Circuit took the same approach in
United States v. Chang, 47 F. App’x 119, 122 (3d Cir. 2002), and granted access to sentencing
documents based on the common law right instead of addressing the constitutional issue.
23
Additionally, two circuits avoided the question whether the First Amendment right of access
applies to juvenile delinquency proceedings by construing the Juvenile Delinquency Act to

September 19, 2016

Page 229 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 230 of 497
Memo on First Amendment Right of Access
July 21, 2016 (revised)
Page 14

jury proceedings and investigations, affidavits supporting search warrants, Title III wiretap
applications, and federal PSRs.
Grand jury proceedings are readily distinguishable from other aspects of criminal
proceedings, including those implicated by the CACM recommendations. Because federal grand
juries, like their English forebears, have operated as secret ex parte proceedings since the time of
the founding, 24 experience and logic dictate that grand jury proceedings and records associated
with grand jury investigations do not fall within the First Amendment right of access. 25
Similarly, the appellate courts have generally found no tradition of public access and no
First Amendment right to Title III wiretap applications and search warrant affidavits. In re N.Y.
Times Co. to Unseal Wiretap & Search Warrant Materials, 577 F.3d 401, 410 (2d Cir. 2009), 26
the court found that Title III’s legislative scheme created a strong presumption against public
disclosure, reflecting “Congress’s preferred policy of favoring confidentiality and privacy.” Id.
In essence, neither experience nor logic favored access. The circuits are split on the question
whether a First Amendment right of access attaches to search warrant affidavits after the warrant
has been executed. Although several circuits have held there is no right of access, 27 one circuit
found that there is a right of access. 28 The circuits finding no right of access emphasized the lack

d on

hive
9 arc

017
r 8, 2

Se

be
ptem

authorize, but not mandate, juvenile delinquency 25
0 proceedings. United States v. A.D., 28 F.3d
15-5
No. Juveniles, 61 F.3d 86 (1st Cir. 1995). The courts
1353 (3d Cir. 1994); United States v. oe,
Three
hn D
v. Jo
noted that although juvenile proceedings, a relatively recent creation, do not have the same
A
in US
historical traditionitof openness as criminal trials, many of the reasons for open criminal trials
c ed
apply equally to juvenile proceedings. If interpreted to require closure, the Act would raise
serious First Amendment concerns—concerns the courts deemed serious enough to justify
construing the Act to authorize, but not mandate, closure in juvenile proceedings.
24
See generally Sara Sun Beale et al., 1 Grand Jury Law and Practice §§ 5:1–5:3 (2d ed. 2015)
(reviewing history of grand jury secrecy in England and United States).
25
See, e.g., United States v. Smith, 123 F.3d 140, 148 (3d Cir. 1997) (“Historically, [grand jury]
proceedings have been closed to the public. Moreover, public access to grand jury proceedings
would hinder, rather than further, the efficient functioning of the proceedings.”); In re Subpoena
to Testify Before Grand Jury, 864 F.2d 1559, 1562 (11th Cir. 1989) (reasoning that “[n]either of
the[] elements [experience and logic] is present in assessing access to grand jury proceedings”
and holding that grand jury proceedings are outside the access right’s scope).
26
The court in In re N.Y. Times Co. to Unseal Wiretap, asked whether experience and logic
suggested a right of access or whether the applications implicated attendance at some judicial
proceeding. 577 F.3d at 410. The court determined that neither implied a right of access. Id.
27
In re Search of Fair Finance, 692 F.3d 424, 433 (6th Cir. 2012); Times Mirror Co. v. Copley
Press, Inc., 873 F.2d 1210 (9th Cir. 1989).
28
The Eighth Circuit found a right of public access because search warrant materials are
routinely filed without seal and are also often disclosed. In re Search Warrant for Secretarial
Area, 855 F.2d 569, 573 (8th Cir. 1988). The court also pointed to the right of access potentially
“operat[ing] as a curb on prosecutorial or judicial misconduct.” Id.

September 19, 2016

Page 230 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 231 of 497
Memo on First Amendment Right of Access
July 21, 2016 (revised)
Page 15

of any historic tradition of public access and the potential detriment to investigatory process. 29
As the Supreme Court has explained, search-warrant proceedings are “necessarily ex parte, since
the subject of the search cannot be tipped off to the application for a warrant lest he destroy or
remove the evidence.” Franks v. Delaware, 438 U.S. 154, 169 (1978); see also United States v.
U.S. Dist. Court, 407 U.S. 297, 321 (1972) (“[A] warrant application involves no public or
adversary proceeding.”).
Several circuit courts have held or noted in dicta that the First Amendment right of access
does not apply to presentence reports. 30 The most fully developed analysis is in United States v.
Corbitt, 879 F.2d 224 (7th Cir. 1989), which applied the “experience and logic” test to PSRs and
concluded that they fell outside the First Amendment’s scope. Id. at 229. The court emphasized
two factors. First, unlike other stages of criminal adjudication, PSRs have historically been kept
confidential. Id. Indeed, initially even defendants could not access them. Id. Second, the reports’
confidential nature improved adjudication and sentencing, and disclosure might hinder the
probation office’s mission of providing the sentencing court with a comprehensive analysis of an
offender’s character. Id. In contrast, the historical default for pleas and sentencing has been
openness, and numerous courts of appeals have noted that the same salutary reasons for holding
open trials apply to open plea and sentencing proceedings. See supra Part III.A.1 (discussing
circuit cases); see also U.S. Dep’t of Justice v. Julian, 486 U.S. 1, 12 (1988) 2017
, (expressing
ber 8
ptemthe individuals’
reluctance to disclose reports to third parties in order to avoid n Se
chilling
do
chive typically required some showing of
willingness to contribute information; noting the 259 ar have
courts
50
. 15special need before allowing third parties o obtain a copy of a presentence report; and holding
, Nto
Doe
ohn disclosed to that defendant).
FOIA requires a defendant’s v. J be
SA PSR
cited

in U

B. Determining Whether the Presumption of Openness Has Been Overcome
If the right of access attaches to a particular proceeding or document, the right is still not
absolute; rather, it amounts to a “presumption of openness” that may be overcome if restrictions
29

In Fair Finance, the Sixth Circuit noted the lack of any historic tradition of public access and
the potential “detriment[] to the search warrant application and criminal investigatory processes”
that could occur as a result of public access. 692 F.3d at 433. These potential detriments included
identification of wiretap and undercover information sources, witness safety, and the possibility
of alerting future suspects of forthcoming prosecutions. Id. at 432. The court also noted that
releasing affidavits would encourage the government to be “more selective in the information it
disclosed.” Id.
30
Other courts have said in dicta that the First Amendment right of access does not apply to
presentence reports. See In re Hearst Newspapers, LLC, 641 F.3d at 181 n.14 (citations and
quotation marks omitted) (“We do not . . . call into question the practice of keeping presentence
reports confidential . . . .”); Alcantara, 396 F.3d 189 at 197 n.6 (“Courts have generally held,
however, that there is no First Amendment right of access to pre-sentence reports.”); CBS, Inc.,
765 F.2d at 826 (“Our opinion is not to be read to disapprove the practice of keeping presentence
reports confidential.”). Cf. In re Boston Herald, Inc., 321 F.3d 174, 188 (1st Cir. 2003)
(“[P]resentence reports are presumptively confidential documents.”).

September 19, 2016

Page 231 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 232 of 497
Memo on First Amendment Right of Access
July 21, 2016 (revised)
Page 16

are essential to preserving a “compelling governmental interest, and [are] narrowly tailored to
serve that interest.” Press-Enterprise I, 464 U.S. at 510 (citations omitted). The heightened
scrutiny inquiry largely tracks the process laid out in the Sixth Amendment context in Waller,
467 U.S. at 48. See supra Part II.A.
First, closure must serve an interest that is “compelling,” Globe Newspaper, 457 U.S. at
607, or “overriding,” Richmond Newspapers, 448 U.S. at 581, that “outweighs the value of
openness,” Press–Enterprise I, 464 U.S. at 509. Second, there must be a “substantial probability”
that openness would undermine that interest and that closure would preserve it. Press-Enterprise
II, 478 U.S. at 14. Third, closure is only appropriate if “reasonable alternatives” cannot protect
the interest. Id. Finally, a court that ultimately decides a proceeding or document should remain
secret must articulate the interest invoked and make “findings specific enough that a reviewing
court can determine whether the closure order was properly entered.” Id.
1. Compelling Interests
Many circuit courts have identified compelling interests that mirror the goals of CACM’s
cooperator-protection guidance: protecting witnesses, informants, and undercover agents, and
law enforcement’s interests in maintaining the integrity of ongoing investigations. Personal
017
safety has been recognized as a compelling interest. See, e.g., United States, v. Doe, 63 F.3d 121,
r8 2
mbe
epte
127 (2d Cir. 1995) (recognizing “that a person’s physical safety, among other things, could in
on S
ved
rchi
certain instances justify a closure order”); United2States v. Simmons, 797 F.3d 409, 414 (6th Cir.
59 a
-50
. 15
,N
2015) (noting that “the need to protectetheosafety of witnesses and to prevent intimidation
n Do
oh
31
satisfies the higher ‘overriding J
A v. interest’ requirement in the standard Waller test”). Indeed, the
n US
i
c ted
Clark Order cited icooperator safety to justify the blanket closures at issue there. 99 F. Supp. 3d
at 659. Courts also have highlighted the importance of maintaining the integrity of criminal
investigations that rely on confidential sources and undercover agents. Cf. Ayala v. Speckard,
131 F.3d 62, 72 (2d Cir. 1997) (“The state interest in maintaining the continued effectiveness of
an undercover officer is . . . extremely substantial . . . .”). Indeed, given cooperators’ importance
in investigations, courts often link cooperator safety with investigative integrity. 32
31

See LaFave et. al, supra note 10, § 24.1(b) n.26 (collecting authority). Courts have also noted
the importance of safety as part of the “experience and logic” inquiry, pointing out the logic of
keeping grand-jury investigations closed, in part, to protect grand-jury witnesses. See United
States v. Index Newspapers LLC, 766 F.3d 1072, 1087 (9th Cir. 2014). (“[T]here are several
compelling reasons why grand jury proceedings should be kept secret, including protecting the
integrity of the grand jury investigation and the safety of witnesses.”); see also Corbitt, 879 F.2d
at 235 (citing informant safety and investigations as reasons justifying keeping PSRs secret).
32
CBS, 765 F.2d at 826 (“[I]nformation relating to cooperating witnesses and criminal
investigations should be kept confidential in some cases . . . .”); United States v. Cojab, 996 F.2d
1404, 1408 (2d Cir. 1993) (“[W]e have recognized as additional sufficient reasons for closure
and sealing those occasions where an ongoing government investigation may be jeopardized or
where publicity might put at risk the lives or safety of government agents engaged in undercover

September 19, 2016

Page 232 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 233 of 497
Memo on First Amendment Right of Access
July 21, 2016 (revised)
Page 17

2. Tailoring
Although witness safety and investigative integrity are compelling interests and Judge
Clark found that they justified a sealed portion of every plea agreement, research did not yield
any circuit court authority endorsing safety or investigative integrity as justifying a default rule
of across-the-board closure. Indeed, a number of opinions recognize the importance of protecting
witnesses and investigations in general, but reject them as reasons for sealing or closure in a
particular case. 33 Surviving First Amendment tailoring analysis could prove difficult for acrossthe-board closures. In light of the Supreme Court and circuit court precedents requiring case-bycase justification for restricting access when the First Amendment applies, the courts would
likely have to break new ground in order to uphold the constitutionality of the national default
rule of sealing proceedings and documents recommended by CACM.
The Supreme Court has described closure as a rare exception to openness, not a
commonplace device: “Closed proceedings, although not absolutely precluded, must be rare and
only for cause shown that outweighs the value of openness.” Press-Enterprise I, 464 U.S. at 509;
see also Waller, 467 U.S. at 45 (explaining that cases in which openness gives way to other
interests “will be rare . . . and the balance of interests must be struck with special care”). Circuit
courts have echoed that closure is an exceptional move. See, e.g., United States 7 Cojab, 996
v.
1
8, 20
rproceedings are being
F.2d 1404, 1405 (2d Cir. 1993) (“The power to close a courtroom where
mbe
epte
on S
conducted during the course of a criminal prosecution and/or to seal the records of those
ived
arch
259 even then only with the greatest caution,
proceedings is one to be very seldom exercised, 0
-5 and
o. 15
oe, Nclear and apparent reasons.”).
under urgent circumstances, andoforD
hn very
.J

SA v

in U
Two of theitSupreme Court’s right-of-access cases struck down rules or statutes that
c ed
imposed across-the-board closure rather than providing for case-by-case determinations. In
Globe Newspaper, the Court acknowledged that the psychological health of underage sexual
assault victims is a compelling interest, but it nonetheless struck down the Massachusetts statute
mandating courtroom closure during those victims’ testimony because it did not provide for the
constitutionally required specific, case-by-case interest balancing. 457 U.S. at 607–08. In El
Vocero, the Court acknowledged that fair-trial interests are compelling, but struck down Puerto

activities.”); Doe, 63 F.3d at 127 (citations omitted) (“[Closure require showing] danger to
persons, property, or the integrity of significant activities entitled to confidentiality, such as
ongoing undercover investigations or detection devices.”).
33
In CBS, Inc. v. U.S. District Court, for example, the court sealed a cooperator’s Rule 35
motion for a reduced sentence. 765 F.2d at 824. The Ninth Circuit conceded that the case
implicated safety and investigative interests, but reasoned there was little likelihood that
openness would harm those interests because most of the sealed information was already public
record. Id. at 825. The court also reasoned that redaction and witness protection were other
means that could adequately serve the asserted purposes. Id. at 826; see also Robinson, 935 F.2d
at 291 (noting that closure may be appropriate if openness would “threaten an ongoing criminal
investigation, or the safety of [a cooperating defendant] and his family,” but that facts of
witness’s cooperation had already been publicly disclosed).

September 19, 2016

Page 233 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 234 of 497
Memo on First Amendment Right of Access
July 21, 2016 (revised)
Page 18

Rico’s default closure rule because it obviated determinations of fair-trial needs in each
individual case. 508 U.S. at 151.
Similarly, many cases in the courts of appeal have rejected blanket secrecy and required
case-by-case determinations. The First Circuit has struck down several policies that provided for
across-the-board closure or sealing. In Globe Newspaper Co. v. Pokaski, 868 F.2d 497 (1st Cir.
1989), the First Circuit encountered a Massachusetts statute that provided for the automatic
sealing of records in criminal cases ending in “not guilty” judgments or “no probable cause”
dispositions. Id. at 505. Parties or members of the public could unseal the records under certain
circumstances, but the default was sealing. Id. After determining that the First Amendment right
of access applied to the records, the court ruled that such a blanket policy of sealing was
unconstitutional. Id. at 509. The court acknowledged the weight of the privacy interests at stake,
but reasoned there were less restrictive means of serving them—among them, allowing
defendants to move for sealing at the end of their trial or probable-cause hearing. Id. at 507.
The First Circuit also invalidated the District of Rhode Island’s “blanket nonfiling policy,”
which provided that legal memoranda submitted with motions were not placed in the record. In
re Providence Journal Co., Inc., 293 F.3d at 13. The court reasoned that the interests the policy
sought to serve could be addressed “on a case-specific basis.” Id. at 12; see id.17
(“Where a
20
r 8,that need can be
particularized need for restricting public access to legal memorandaeexists,
mbe
ept
on S contributed to the court’s
addressed by the tailoring of appropriate relief.”). That reasoning
ived
arch
259 Cir. 2003), which upheld the discretionary
decision In re Boston Herald, Inc., 321 F.3d1174 (1st
-50
o. 5
oe, Nforms, in part, because the discretionary regime was
sealing of Criminal Justice Act eligibility
nD
. Joh
SA v
“not a blanket rule denying access.” Id. at 181.
U
d in
cite

In New York Civil Liberties Union v. New York City Transit Authority, 684 F.3d 286 (2d
Cir. 2012), the Second Circuit invalidated the hearings policy of New York City’s Transit
Adjudication Board (TAB). Id. at 305. The TAB promulgates rules for the city’s publictransportation services and adjudicates claims for individuals cited for violating those rules. Id. at
289. The TAB maintained a policy of closing hearings to the public unless the respondent
consented to an observer being present. Id. at 292. After concluding that the First Amendment
right of access applies to the hearings, the court ruled that the policy was unconstitutional
because, by making closure the default, it avoided case-by-case “findings regarding the relative
weight of the interests at stake.” Id. at 305.
We found only two appellate decisions upholding categorical, across-the-board closure,
both of which seem readily distinguishable from the procedures proposed by CACM. They
upheld (1) temporary sealing for 60 days of qui tam actions filed under the False Claims Act
(FCA), and (2) closure of certain deportation proceedings after the September 11, 2001 terrorist
attacks. Neither decision appears to provide a firm basis for the procedures recommended by
CACM.

September 19, 2016

Page 234 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 235 of 497
Memo on First Amendment Right of Access
July 21, 2016 (revised)
Page 19

In ACLU v. Holder, 673 F.3d 245 (4th Cir. 2011), the Fourth Circuit concluded that
FCA’s 60-day sealing period, which allows the government to investigate the relator’s
allegations and determine whether to intervene, was “narrowly tailored to serve the
government’s compelling interest in “protecting the integrity of ongoing fraud investigations.” Id.
at 253. Unlike this temporary short-term sealing, CACM recommends across-the-board sealing
that is indefinite unless the court orders otherwise on a case-by-case basis.
One of two courts to consider the issue upheld an across-the-board closure policy for
certain deportation hearings after the September 11, 2001 terrorist attacks, 34 but this decision
offers little support for the CACM proposals. In New Jersey Media Group, Inc. v. Ashcroft, 308
F.3d 198, 217 (3d Cir. 2002), the Third Circuit concluded that the First Amendment provided no
right of access to administrative deportation proceedings conducted by the Executive Office for
Immigration Review (EOIR), distinguishing them from proceedings in Article III courts. Id. at
209; see also 8 C.F.R. § 1003.0(a) (providing for the organization of the EOIR “[w]ithin the
Department of Justice”). Accordingly, the court did not reach the question of tailoring. 35 In
contrast, the Sixth Circuit held that the right of access applied to deportation proceedings, and it
concluded that the post-9/11 closure directive was not narrowly tailored to achieve the national
security interests it sought to serve. See Detroit Free Press v. Ashcroft, 303 F.3d 681, 692 (6th
Cir. 2002). In particular, the court saw “no persuasive argument as to why8the 17
, 20 Government’s
ber
ptem
e
concerns cannot be addressed on a case-by-case basis.” Id. Assuming arguendo that that Third
on S
ved
chiwas correct, it provides little support for
ar
Circuit’s analysis of closing the deportation proceedings
0259
15-5
.on the administrative nature of the proceedings makes
the CACM proposals. The court’s reliance
, No
Doe
ohn from the context of pleas, plea proceedings and sentencing in
J
its decision readily distinguishable
A v.
in US
ed Further, it provides no basis for concluding that a case-by-case
the Article III courts.
cit
determination of the need for closure is not required in proceedings when the First Amendment
right of access applies.
As noted earlier, at least one district court has upheld a blanket sealing rule: the Clark
Order, 99 F. Supp. 3d at 660. The procedures at issue there provide that every plea agreement
include a sealed addendum that either details the defendant’s actual cooperation or simply
includes no additional information Id. Indeed, the procedures the Clark Order sanctions closely
resemble the proposals in the CACM report. On the Clark Order’s reasoning, the court must seal
a portion of every plea agreement, even when there is no articulable risk to the actual defendant
34

Shortly after 9/11, Chief U.S. Immigration Judge Michael Creppy issued a directive that
designated certain deportation hearings as “special interest” based on a determination by the
Attorney General that the hearings’ subject may have connections to or knowledge of the 9/11
attacks. N.J. Media Grp., Inc. v. Ashcroft, 308 F.3d 198, 199 (3d Cir. 2002).
35
The court, did, however, evaluate the wisdom of relegating national-security concerns to caseby-case determinations in the “logic” prong of its inquiry into the right itself. Id. at 200. Among
other things, the court relied on testimony that immigration judges lack the capacity to evaluate
the national-security implications of particular facts, which made closure on a case-by-case basis
ineffective. Id.

September 19, 2016

Page 235 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 236 of 497
Memo on First Amendment Right of Access
July 21, 2016 (revised)
Page 20

or when the defendant did not even cooperate. Id. This is so because “[u]nsealing only those plea
agreements that do not contain cooperating language would paint a bulls-eye on every defendant
whose plea agreement was not unsealed.” Id. And such a policy is narrowly tailored because
“holding a hearing in every case to determine whether to seal a defendant’s addendum is not
practicable.” Id.
Conclusion
The constitutional validity of the procedures CACM has recommended will most likely
turn on the question whether they can meet the heightened scrutiny at the second step of the
Supreme Court’s First Amendment analysis. In most or all circuits, we expect that the courts will
hold that the First Amendment right of access applies to the supplemental portion of each plea
agreement concerning cooperation, the sealed portion of sentencing memoranda and transcripts,
and cooperation-based Rule 35 motions. Some courts might also address the issue as a restriction
on the common law right of access to court documents. It is less likely that the courts will face
Sixth Amendment challenges, because most defendants will benefit from sealing and not seek to
challenge it. On the other hand, some non-cooperating defendants might prefer disclosure and
object to sealing on Sixth Amendment grounds. Both common law and Sixth Amendment
17
challenges will be resolved using an analysis similar to that applied to First, Amendment claims.
8 20
er
emb
Sept access
right of
on

If the recommended policies restrict the presumptive
under the First
d
hive
9 arc
Amendment, they would trigger heightened scrutiny. Courts will likely agree that compelling
5025
. 15Nothe interest in protecting personal safety and the
interests motivate the procedures—that ,is,
oe
hn D
v. Jo and future investigations. The much more difficult question is
government’s interest inUSA
ongoing
in
cited
whether these compelling interests justify an across-the-board policy of sealing affecting every
case in which there is a guilty plea, i.e., 97 percent of federal convictions. The Supreme Court
and circuit courts have to date rejected categorical, across-the-board closure policies and
required case-by-case justifications. These courts would have to break new ground in order to
conclude that a default rule of sealing proceedings and documents passes constitutional muster.
Judge Clark’s decision is the only decision we have found upholding a blanket sealing policy.
Although Judge Clark found that an across-the-board sealing was the only way to protect the
health and safety of cooperators and prison staff, and to prevent the intimidation of others who
might cooperate in the future, his opinion does not reflect consideration of a variety of other
alternatives or any assessment of those alternatives’ relative effectiveness.
A. Possible alternative measures
Based on the information we have collected, it is unclear whether it will be possible for a
party defending the CACM procedures to meet the heightened constitutional standard, i.e., no
less restrictive alternative or combination of less restrictive alternatives other than sealing can
provide an acceptable level of protection to cooperators.
At present, districts employ a wide variety of procedures to protect cooperators. See
generally U.S. Dep’t of Justice, Chart of Local Rules and Standing Orders Regarding the Sealing

September 19, 2016

Page 236 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 237 of 497
Memo on First Amendment Right of Access
July 21, 2016 (revised)
Page 21

of Court Documents (Jun. 28, 2016); Federal Judicial Center, Survey of Harm to Cooperators:
Final Report, page 26, Table 10 (June 2015) [hereinafter FJC Report]; Federal Judicial Center,
Memorandum to Cooperators Subcommittee 6–10 (May 18, 2016) [hereinafter FJC May 18
Memo]. In evaluating constitutional challenges to the limits on access proposed by CACM,
courts that conclude constitutional scrutiny applies will require that the party defending limits on
access carry the burden of showing that those limits are narrowly tailored to address the risk of
harm—i.e., that other less restrictive procedures will not provide constitutionally sufficient
protection for cooperators. As there will often be alternative sources of information about
cooperators, including out-of-court sources, limiting access to court proceedings and documents
will never eliminate all risk of harm; the question is one of degree. Under narrow tailoring, the
burden is showing that limits on access will reduce the incidence of harm more effectively than
other less restrictive alternatives, and that the improvement is sufficient to justify those limits.
It appears that the FJC data provide no information that would assist a court in deciding
this question. Although the original Table 9 of the FJC May 18 Memo reported the number of
incidents of harm to cooperators in districts that included a particular limitation as part of their
procedure, the FJC’s data provide no basis for evaluating the effect on harm for any single
procedure or combination of procedures As the FJC explained on page 1 of its July 21, 2016
Memorandum to the Cooperators Subcommittee (emphasis added; bold er 8, 2017
omitted):
v

mb

epte

nS
ed o

ch
Because all districts responding to that section rof ithe survey reported taking some steps to
59 a
-502
protect cooperators, and no two ,districts are using the same steps, it is empirically
o. 15
e N
n Do of any policy (individually or in combination with other
impossible to identifyvthe h
Jo effect
A .
policies) onted inamount of reported harm to cooperators.
the US
i
c

Because of the number of different combinations employed in various districts, statistical
analysis pinning down the relative effect of one combination compared to another was not
possible. The study does show that even with various combinations of existing limitations
district judges are reporting harm, but it says nothing about the effect of any one policy (or
combination of policies) on the frequency of harm. 36
Thus the FJC study provides no statistical support for the claim that the limits proposed
by CACM would do a better job of reducing incidents of harm than any other combination of
less restrictive limitations, particularly if those less restrictive limitations were adopted on a
national basis. On the other hand, the study provides no support for the claim that CACM’s
limits would be less effective. But the burden, if a constitutional challenge is raised, is not on the
party seeking access. The burden of meeting the requirements of heightened scrutiny is on the
party defending secrecy.

36

Districts that have already adopted the policies recommended by CACM may have
experienced higher rates of harm and threat prior to their adoption of these policies, but that
information is not available from the study.

September 19, 2016

Page 237 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 238 of 497
Memo on First Amendment Right of Access
July 21, 2016 (revised)
Page 22

For example, a court may wish to know whether limiting online access via PACER—
alone or in combination with other procedures—would provide an acceptable level of protection
for cooperators from risks arising from information in court records. It appears that online
PACER access has been a significant factor in causing increased the harm to cooperators in
recent years. Other alternatives include the various procedures outlined in Tables 7 and 8 of the
FJC May 18 Memo, as well as limiting the sealing policy to cases involving gangs or organized
crime, to offenders likely to be sentenced to high or medium security prisons, 37 or to sealing for
only a limited period of time. 38 It is also possible that defendants accused of certain crimes may
face a substantially lower risk than defendants accused of other crimes. 39The FJC study cannot
answer this question. Researchers specifically asked respondents that they not provide any
information about the details of the case in order to avoid identifying individual cooperators. As a
result, information on crime type was not collected. FJC May 18 Memo, at 2.
The effectiveness of the proposed procedures
Relative to alternatives. Even assuming that the adoption of a uniform, national policy
will reduce the incidence of harm by lowering the number of times cooperation is mistakenly
inferred based on inter-district variation in policy, it appears that there is very little if any
017
information available to support or refute claims concerning the relativeeeffectiveness of the
r 8, 2
mb
proposed procedures as compared to other potential nationwide Septe
alternatives. The FJC found that
d on
chive cooperators, but still reported harm.
most districts employed more than one procedure2to protect
9 ar
50 5
. 15Id. As noted earlier, the findings provideNo information on the relative effectiveness of any
, no
Doe
ohn
.J
existing procedure or policy,vor combination of policies, in reducing the incidence of harm.
USA
ed in
They provide no information about what sort of effect, if any, the adoption nationwide of any
cit
existing procedure or policy, or combination of polices, would have on the incidence of harm.
And they provide no information about what sort of effect, if any, the procedures recommended
by CACM would have on the incidence of harm.
The Department of Justice memorandum dated May 31, 2016, describes a variety of
practices in the districts surveyed, and reports that prosecutors in districts that had implemented
37

We note that a Bureau of Prisons memorandum to the Subcommittee states:
Currently, there are 22,561 inmates in private prisons, or about 11.57% of all federal
inmates. Assault rates in private prisons are very low as they are mostly low security
prisons. In calendar years 2014 and 2015 there were 2 serious assaults on inmates in
private facilities.
Fed. Bureau of Prisons, Memorandum to Cooperators Subcommittee 2 (Jun. 27, 2016).
38
U.S. Dep’t of Justice, Memorandum to Cooperators Subcommittee 4 & nn. 2-4 (July 12, 2016)
(noting several districts seal for specified periods on a case-by-case basis or for short periods
such as two or four years).
39
But see FJC July 7 Memo at 4-6 (finding no difference of reports of threat and harm among
similarly sized districts based upon one the number of convictions for three categories of
offenses).

September 19, 2016

Page 238 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 239 of 497
Memo on First Amendment Right of Access
July 21, 2016 (revised)
Page 23

some protective measure(s) were fairly satisfied, even if those measures—unlike CACM’s
recommended procedures—were “narrowly targeted to address only those cases that are likely to
result in threats or harm.” U.S. Dep’t of Justice, Memorandum to Cooperators Subcommittee 6
(May 31, 2016) [hereinafter DOJ May 31 Memo]; see also id. at 5 (“The overall sense of the
USAOs surveyed was that the measures employed had positive effects, and the more uniformly
employed the better they worked.”). The DOJ findings support the adoption of protective
procedures within each district, and perhaps even a national policy. But they do not clearly
support the particular procedures recommended by CACM.
Judge Clark’s opinion did not consider whether the courts, the Department of Justice or
the Bureau of Prisons might be able to implement other solutions that would have an equivalent
impact, such as strengthening witness protection programs or providing separate prisons for
cooperators. The Bureau of Prison memorandum of June 27, 2016, did not directly respond to the
question whether such prisons would be feasible if deemed necessary to protect cooperators,
instead stating that the Bureau presently protects them in other ways.
Other uncontrolled sources of information. In addition to examining whether CACM’s
proposed procedures improve protection as compared to less restrictive alternatives—including
nationwide, uniform alternatives—we believe that courts are likely to evaluate1the effectiveness
20 7
of any limitation on access in light of other sources of information left ber 8,
m uncontrolled by the
e
Sept
proposed limitation. Judge Clark, in his opinion, did not ived on the degree to which other
consider
rch
5 a
means of accessing cooperation information1would 9
-502 undermine the sealing policy’s protective
o. 5
e, N
goals. For example, CACM’s recommendation for requiring a bench conference in every case
n Do
h
v. Jo
that would contain anyndiscussion of cooperation (or a statement that there was none) overlooks
USA
i
ited
the consequencescof leaving in place the right of public access to the courtroom. It would be easy
for a spectator to determine, with a high likelihood of correctness, whether a defendant has
cooperated from observing such a bench conference. A variety of factors could reveal whether
the defendant had cooperated, including the duration of the conference as well as the existence
and apparent nature of any exchange (or the absence of an exchange) between the prosecutor and
the defense lawyer. A short exchange between two lawyers differs significantly from a longer
discussion in which one or both sides detail the nature, extent, and value of cooperation and
discuss the extent of the departure or variance warranted by that cooperation. See also FJC
Report, pp. 13-14, 18-19, 28 (reporting responses concerning other sources of information); id.,
App. D (“Other Sources to Identify Defendants”). 40
40

The Report’s conclusion on this point, p. 30, reads:
The sources for identifying cooperation by defendants/offenders and witnesses
also differed somewhat, according to our respondents. While court documents and
proceedings were overwhelmingly the source for identifying both types of
cooperators, the specific sources are different. Defendants/offenders were
identified in plea agreements, 5K1.1 motions, or through general docketing

September 19, 2016

Page 239 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 240 of 497
Memo on First Amendment Right of Access
July 21, 2016 (revised)
Page 24

Committee members have noted there are many ways prisoners determine who is
cooperating, such as departures from the prison for proffer sessions when no proceedings in the
prisoner’s case are scheduled, or the receipt of a particularly favorable sentence. Respondents in
the FJC study cited a wide variety of sources for information about cooperation, including live
testimony, discovery, Jencks Act disclosures, evidence and transcripts from co-defendants’ trials,
police reports, modifications of pretrial conditions of release, PSRs, grand jury proceedings,
search warrant affidavits, newspaper articles, observations of individuals speaking to agents,
removal from custody for debriefing, and information from co-defendants. Id. Discovery was
one of the most frequently cited sources. Id. In general, these sources of information would be
unaffected by CACM’s recommendations.
Indeed, because alternative sources of information may be more readily accessible in
smaller districts, a court might very well conclude that alternative sources of information may be
one explanation for the finding by the FCJ that the rate of harm to cooperators was somewhat
higher in smaller districts. See FJC May 18 Memo, supra, at 5; Federal Judicial Center,
Memorandum to Cooperators Subcommittee (Jul. 7, 2016).
B. The value of open judicial proceedings
We conclude with the observation that courts considering a First Amendment challenge
017
r 8, 2
mbe the criminal justice
might be affected by recent events that have eroded public confidence in
epte
on S
ved
system, leading many to believe that it systematically rchi
discriminates against people of color. As
59 a
-502
noted in Part I.A, supra, the Supreme Court 15 stated that the benefits of holding trials and other
o. has
oe, N
n D“community therapeutic value” and enhancing the
criminal proceedings openly v. Joh
include
A
n US of the criminal process. The adoption of a categorical policy of
i
perceived and actualdfairness
cite
sealing plea and sentencing documents and proceedings would make it difficult for individual
defendants as well as the press and the public to assess whether there has been discrimination
against defendants of color.

practices, especially the presence of a number of sealed CM/ECF docket entries
or a sentencing reduction. Respondents also reported discovery and testimony as
common sources for identifying defendant/offender cooperators. We found that
witnesses, while also identified through court documents, were often identified
through witness lists, because they give testimony in open court, or through
discovery.

September 19, 2016

Page 240 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 241 of 497

TAB 6C
d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 241 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 242 of 497

THIS PAGE INTENTIONALLY BLANK

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 242 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 243 of 497

COMMITTEE ON COURT ADMINISTRATION AND CASE MANAGEMENT
OF THE
JUDICIAL CONFERENCE OF THE UNITED STATES
Philip R. Martinez
Norman A. Mordue
Michael R. Murphy
Rebecca J. Pallmeyer
Roger W. Titus
Reggie Walton

Wm. Terrell Hodges, Chair
Anna J. Brown
Charles S. Coody
Audrey G. Fleissig
Kim R. Gibson
Joseph N. Laplante
Robert E. Littlefield, Jr.

Mark S. Miskovsky, Staff

June 30, 2016
MEMORANDUM
To:

Chief Judges, United States District Courts
District Judges, United States District Courts
District Court Executives
Clerks, United States District Courts

d on

From:

hive
9 arc

017
r 8, 2

be
ptem

Se

Judge Wm. Terrell Hodges, .Chair 25
-50
o 15
oe, N
Committee on Court D
hn Administration and Case Management
A v.

US
ed in

Jo

cit
Judge Roger W. Titus, Chair, Privacy Subcommittee
Committee on Court Administration and Case Management

RE:

INTERIM GUIDANCE FOR COOPERATOR INFORMATION

On behalf of the Committee on Court Administration and Case Management (CACM),
we would like to share interim guidance that the Committee developed concerning the treatment
of cooperator information in criminal cases. This guidance is “interim” because the issue has
been referred to the Committee on Rules of Practice and Procedure for formal consideration. As
discussed below, however, the Committee believes this is an issue of such importance that it
requests each court to consider adopting the provisions of the guidance, in a manner consistent
with local practice, applicable case law, and the court’s rule-making authority, pending
consideration through the Rules Enabling Act process.
Background
The CACM Committee has responsibility for issues relating to court operations,
including the task of helping courts maintain their records in a way that protects both the public
right of access to case filings and the legitimate privacy interests of litigants. Perhaps the most
challenging example of this responsibility is balancing public access to criminal cases against the
potential exposure of government cooperators. Remote electronic access dramatically increased

September 19, 2016

Page 243 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 244 of 497
Interim Guidance for Cooperator Information

Page 2

the potential for illicit use of case information regarding cooperators, and it is largely for this
reason that the Judicial Conference initially delayed public electronic access to criminal case
files. This concern also prompted the Committee in 2008 to endorse practices aimed at
minimizing the use of case documents to identify cooperators, and encourage all courts to
consider their implementation. March 2008 Report of the CACM Committee to the Judicial
Conference, pp.8-9; Guide to Judiciary Policy, Vol. 10, Ch. 3, § 350.
Since then, the CACM Committee has continued to track the use of criminal case
information to identify cooperators. Despite courts’ individual efforts, the problem continues to
grow. Based on increasing concerns expressed by judges about harm to cooperators, this
Committee, in August 2014, asked the Federal Judicial Center (FJC) to survey judges, U.S.
attorneys, federal defenders, Criminal Justice Act panel representatives, and probation and
pretrial services chiefs to measure the scope and severity of the problem.
The FJC analyzed the responses to these surveys and collected its findings in a report
entitled “Survey of Harm to Cooperators,” which is now available on the FJC website at
http://www.fjc.gov/public/pdf.nsf/lookup/Survey-of-Harm-to-Cooperators-FinalReport.pdf/$file/Survey-of-Harm-to-Cooperators-Final-Report.pdf (“FJC Report”). The FJC
Report fully substantiates the concern that harm to cooperators persists as a severe problem. For
example, district judge respondents reported 571 instances of harms or threats – physical or
economic – to defendants and witnesses between the spring of 2012 and the spring of 2015,
017
including 31 murders of defendant cooperators.
r 8, 2

mbe
epte
on S viewed in the context of a
The Committee believes these threats and harmshshould be
ived
arc
systemic problem of court records being used in0the9mistreatment of cooperators. The FJC
25
-5
o. 15
Report presents 363 instances in which ,court records were known by judges to be used in the
oe N
D
John
identification of cooperators.v.This is a particular problem in our prisons, where new inmates are
SA
in U
routinely required iby other inmates to produce dockets or case documents in order to prove
c ted

whether or not they cooperated. If the new inmates refuse to produce the documents, they are
punished. The FJC Report confirms the existence and widespread nature of this problem, 1 which
is aggravated by prison culture and the prevalence of organized gangs.
The conditions cooperators face in prison also impact the sentences imposed by the
judiciary. Multiple respondents in the FJC Report noted that cooperators’ fear of harm is so
great that some forgo the potential benefits of U.S. Sentencing Guidelines Manual § 5K1.1 out of
fear that the related case documents will identify them as cooperators. If they are identified as
cooperators after arriving in prison, in many cases the only effective protection available is to
move the threatened inmate into a segregated housing unit or solitary confinement, with an
attendant loss of the privileges that would otherwise be available to that inmate – an ironic and
more onerous form of punishment not typically contemplated by the sentencing judge.
Chief Judge Ron Clark of the Eastern District of Texas recently held a hearing regarding
a motion to unseal plea agreements that involved extensive factfinding on these issues. 2 The
hearing involved the participation of the local United States Attorney’s Office, the Office of the
1

See FJC Report, Appendix I: Open-Ended Comments (discussing practices in BOP facilities).

2

United States v. McCraney, 99 F. Supp. 3d 651 (E.D. Tex. 2015).

September 19, 2016

Page 244 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 245 of 497
Interim Guidance for Cooperator Information

Page 3

Public Defender, counsel for five defendants, and counsel for the newspaper who had requested
the unsealing, as well as an amicus filing by another newspaper. At the hearing, the court heard
testimony from two Bureau of Prisons (BOP) representatives and a federal prosecutor concerning
the experiences of cooperators in prison. Based on its factfinding, the court concluded that the
disclosure of information in plea agreements that identifies cooperating defendants “puts those
defendants at risk of extortion, injury, and death.” It therefore found “an overriding interest in
preventing disclosure of information that states or even hints that a defendant has agreed to be an
informant or cooperating witness.” The court’s local rules regarding criminal case management
were updated as a result, so that all plea agreements from that point forward include a sealed
supplement containing any discussion of cooperation. See E.D. Tex. L. R. CR-49(c)-(d). The
court found that this new procedure – which it applied to the case at hand – “balances the
public’s right of access against the higher need to protect the lives and safety of defendants” and
other individuals, as well as “the need to encourage accused individuals to provide the truthful
information that is crucial to the successful prosecution of serious offenses.”
Certainly, U.S. attorneys and the BOP must continually strive to protect cooperators and
ensure the safety of prisoners. The Committee believes, however, that the judiciary also has a
role in finding solutions to these problems. Of particular concern for judges, apart from the need
to protect the well-being of those we sentence, is the fact that our own court documents are being
used to identify the cooperators who then become targets. In many instances these documents
are publicly available online through PACER. Because criminal case dockets are being
7
,
compared in order to identify cooperators, every criminal case is implicated.201
ber 8
Guidance
5

59
-502

iv

arch

m

epte

nS
ed o

The CACM Committee believes No. 1
e, a nationwide, uniform solution providing for greater
n Do
ohinformation is required to address this systemic national
control over access to cooperator
v. J
USA
problem. It has therefore asked the Committee on Rules of Practice and Procedure to consider
ed in
cit
the issues described in the FJC Report and determine whether changes to the criminal rules are
warranted as a long-term remedy. In the interim, the CACM Committee is also asking courts to
consider taking more immediate steps at the district level to address this problem. The
Committee has developed the attached guidance for protecting cooperator information
found in criminal case documents and recommends that each district adopt it via local rule
or standing order. The guidance is based on practices for protecting cooperators already used
in a number of courts. 3
The guidance recommends that, in all criminal cases, courts restructure their practices so
that documents or transcripts that typically contain cooperation information – if any – would
include a sealed supplement. Any discussion of defendants’ cooperation – or lack thereof –
would then be limited to these sealed supplements. For example, any plea agreement docketed
in a criminal case would be accompanied by a separate, sealed supplement containing either
discussion of cooperation or a simple statement that there was no cooperation. As a result, any
member of the public who reviews the docket would be unable to determine, based on the plea
agreement, whether a given defendant has cooperated. By adding standardized sealed material
that will appear in every case, whether or not there is a cooperator, and placing all discussion of
3

Thirty-three district courts, or over one-third, have already adopted local rules or standing orders to make
all criminal defendants appear identical in the record to obscure cooperation information. FJC Report at 26.

September 19, 2016

Page 245 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 246 of 497
Interim Guidance for Cooperator Information

Page 4

cooperation under seal, adoption of these practices would inhibit identification of cooperators
through dockets and case documents. The public, however, would continue to have access to
key criminal case files – albeit without sensitive information regarding cooperation. 4
Importantly, the government’s disclosure obligations to opposing counsel would not be
affected by implementation of this guidance, and the public would still have access to much of
the plea and sentencing material that is now available.
Discussion
The CACM Committee would like to emphasize that, in recommending this guidance, its
members understand and embrace our duty as judges to vigilantly safeguard the public’s right to
access court documents and proceedings pursuant to the First Amendment and under common
law. Nonetheless, the Committee finds that the harms to individuals and the administration of
criminal justice in this instance are so significant and ubiquitous that immediate and effective
action should be taken to halt the malevolent use of court documents in perpetuating these harms,
consistent with each court’s duty to exercise “supervisory power over its own records and files.” 5
The Committee is also mindful of the high burden that must be met before shielding
particular case information from the public’s eye, 6 but notes that this should not be seen as an
absolute bar to exercising authority over court records and proceedings. Indeed, there are many
well-established restrictions on access to criminal case information that address7compelling
01
government interests. 7 The CACM Committee believes that the need iner 8, 2instance is as great
this
mb
te
as, if not greater than, the needs that supported adoption of d on Sep
restrictions in the past.
e
59
-502

iv

arch

o. 15
e, N
The guidance contains otheroprovisions, including procedures for prisoners to access sealed case materials
n Do
J h
A vwith local BOP policy and court rules. The Committee is in communication
in a secure environment, consistent .
n US
i
with the Executive Office for U.S. Attorneys and the BOP regarding the provisions and local implementation.
cited
4

5

Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 598 (1978) (“[A]ccess has been denied where court files
might have become a vehicle for improper purposes.”).
6

See Press-Enterprise Co. v. Superior Court of Cal., 464 U.S. 501, 509-13 (1984) (recognizing that, where
right of public access applies, a court may close court proceedings or deny access to transcripts, but must articulate
reasons for doing so in specific and reviewable findings demonstrating “an overriding interest based on findings that
closure is essential to preserve higher values and is narrowly tailored to serve that interest”). Several circuits also
have issued decisions that may impact court efforts to implement this guidance. See, e.g., United States v.
DeJournett, 817 F.3d 479 (6th Cir. 2016) (vacating policy-based order that sealed the entirety of a plea agreement
without case-specific findings); In re Copley Press, Inc., 518 F.3d 1022 (9th Cir. 2008) (finding a public right of
access to the cooperation addendum of a plea agreement, albeit with limited analysis of whether the right should
apply); Washington Post v. Robinson, 935 F.2d 282 (D.C. Cir. 1991) (acknowledging that potential threats to
criminal investigations or individuals “may well be sufficient to justify sealing a plea agreement,” but vacating
sealing of cooperator information as unwarranted where fact of cooperation was publicly known).
7

See, e.g., 18 U.S.C. § 3153(c) (making pretrial services reports confidential); Fed. R. Crim. P. 32 & 18
U.S.C. § 3552(d) (limiting distribution of presentence investigation reports); Fed. R. Crim. P. 49.1 (requiring
redaction of personally identifiable information and minors’ names); Fed. R. Crim. P. 49.1, 2007 Advisory Comm.
Notes & Guide to Judiciary Policy, Vol. 10, Ch. 3, § 340 (categorizing as non-public a number of criminal case
documents, including juvenile records); 18 U.S.C. § 5038 (making names and pictures of juveniles in delinquency
proceedings non-public; safeguarding records from “unauthorized persons”); JCUS-MAR 01, p. 17 (dictating that
statements of reasons are not to be disclosed to the public); 18 U.S.C. § 3662(c) (mandating that conviction records
maintained by the Attorney General “not be public records”).

September 19, 2016

Page 246 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 247 of 497
Interim Guidance for Cooperator Information

Page 5

It is important to emphasize that, to the extent possible, broad adoption of the CACM
guidance is key to its effectiveness at addressing the problems discussed above. If districts
continue to take different approaches toward addressing this problem, there is a real risk that
well-intentioned measures to protect cooperators in one court might result in criminal dockets
that indicate cooperation, rightly or wrongly, when compared to those of another court. The
inadequacy of a patchwork approach to sealing cooperator-related material is highlighted in
Chief Judge Clark’s opinion and referenced by a number of responses in the FJC Report. It is for
this reason that the Committee has requested the Committee on Rules of Practice and Procedure
to consider this issue for national application.
Finally, in drafting and recommending this guidance, the CACM Committee emphasizes
that it has acted to the best of its ability to narrow the scope of the proposed measures. The
Committee also thoroughly considered other potential options for addressing this issue in each
district, such as those it recommended for potential adoption in 2008. 8 These options, however,
suffer from either failing to move the judiciary toward a uniform approach or by making a
greater volume of case information unavailable to the public. For example, some courts
presently seal the entirety of all plea agreements in an attempt to prevent identification of and
harm to cooperators. By implementing the attached guidance and sealing only cooperator
information, as the CACM Committee recommends, these courts may actually increase the
amount of criminal case information available to the public. 9
The CACM Committee believes that the misuse of court documents, to 17
20 identify, threaten,
ber 8
and harm cooperators is a systemic problem, and can only be addressed through a more uniform
ptem
Se
d on
approach toward public access to cooperator information.veTo that end, the Committee believes
chi
9 ar
uniform implementation of the attached guidance2at the local level -- pending consideration of a
50 5
. 15, No
national rule -- would be an important,emeasured step toward that goal, and one which is
Do
ohn
appropriately tailored toUSA v. J the significant interests involved.
address
n
cited

i

Thank you for the thoughtful consideration we know you and your colleagues will give to
this issue.

8

See March 2008 Rep. of the CACM Committee to the Judicial Conf., pp. 8-9; Guide to Judiciary Policy,
Vol. 10, Ch. 3, § 350 (listing as potential measures (1) shifting cooperation information into non-case file
documents, (2) sealing plea agreements, (3) restricting access to plea agreements, (4) redacting all cooperation
information, (5) restructuring case records so that all criminal cases appear identical, and (6) delaying publication of
plea agreements referencing cooperation).
9

The CACM Committee recognizes that there is no complete or perfect solution. If a cooperator testifies
during a trial, for example, or is sentenced below a statutory mandatory minimum where the “safety valve” does not
apply (18 U.S.C. § 3553(f)), his cooperation is apparent. This obviously does not mean, however, that solutions
should not be adopted for those cases in which they are available and can be effectively applied.

September 19, 2016

Page 247 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 248 of 497
Interim Guidance for Cooperator Information

Page 6

If you have any questions or concerns, please feel free to contact either of us, Judge Terry
Hodges (Chair, CACM Committee) or Judge Roger Titus (Chair, CACM Committee’s Privacy
Subcommittee). You can also contact Sean Marlaire, Administrative Office Policy Staff, Court
Services Office, at 202-502-3522 or by email at [e-mail].
Attachment
cc:

Honorable Jeffrey S. Sutton, Chair, Committee on Rules of Practice and Procedure
Chief Probation Officers
Federal Public and Community Defenders
CJA Panel Attorney District Representatives

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 248 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 249 of 497

Attachment: Interim Guidance for Cooperator Information

June 30, 2016

Guidance on Access to Plea Agreements and Other Documents That May Reveal
Cooperation
A. On the basis of the following findings of the Court Administration and Case
Management Committee, arrived at in consultation with the Criminal Law
Committee and Defender Services Committee (which takes no position on the
proposed guidance), the Committee recommends prompt local adoption of the
guidance set forth in subsection (b) by each district court via local rule or standing
order.
1. As indicated by the Survey of Harm to Cooperators: Final Report prepared by
the Federal Judicial Center in June 2015, and the findings contained in the
memorandum order of Chief Judge Clark of the Eastern District of Texas dated
April 13, 2015 (Case No. 14-CR-80), there is a pervasive, nationwide problem
regarding the use of criminal case information to identify and harm cooperators
and their families.
2. The problem has been exacerbated by widespread use of PACER and other
017
r 8, 2
mbe
systems that provide ready public access to case information, including
epte
o S
documents containing cooperation informationnand criminal dockets indicating
ved
i
arch
whether cooperation did or did 5-50259 in a case.
not occur
.1
3.

, No
Doe
ohn public safety. It also interferes with the gathering of
The problem SA v. J
threatens
nU
ed ithe presentation of witnesses, and the sentencing and incarceration
evidence,
cit

of

cooperating defendants, and therefore poses a substantial threat to the
underpinnings of the criminal justice system as a whole. The Court
Administration and Case Management Committee agreed that there is a
compelling government interest in addressing these issues.
4. Other possible less-restrictive alternatives have been considered before
selecting this guidance and, to the greatest extent possible, the guidance has
been narrowly tailored. To be effective, any action intended to address these
issues must be implemented universally across all criminal cases; any rules,
standing orders, or policies that provide for case-to-case variation in the
treatment of criminal documents for cooperators and non-cooperators are
ineffective and may compound the problem.
5. Uniform nationwide measures regarding access to particular criminal court
documents and transcripts are necessary in order to prevent the improper use of
those documents to harm or threaten government cooperators in the long term.
As a result, the Committee will continue to work with other committees of the
Judicial Conference, and in particular the Committee on Rules of Practice and
Procedure, along with the Department of Justice and the Bureau of Prisons, in

September 19, 2016

Page 249 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 250 of 497

order to investigate and establish nationwide measures that are most effective
at protecting cooperators while avoiding unnecessary restrictions on legitimate
public access.
B. Recommended Document Standards to Protect Cooperation Information
1. In every case, all plea agreements shall have a public portion and a sealed
supplement, and the sealed supplement shall either be a document containing
any discussion of or references to the defendant’s cooperation or a statement
that there is no cooperation agreement. There shall be no public access to the
sealed supplement unless ordered by the court.
2. In every case, sentencing memoranda shall have a public portion and a sealed
supplement. Only the sealed supplement shall contain (a) any discussion of or
references to the defendant’s cooperation including any motion by the United
States under 18 U.S.C. § 3553(e) or U.S.S.G. § 5K1.1; or (b) a statement that
there has been no cooperation. There shall be no public access to the sealed
supplement unless ordered by the court.
3. All transcripts of guilty pleas shall contain a sealed portion containing a
0 7
conference at the bench that will either contain any discussion1of or references
r 8, 2
mbe
to the defendant’s cooperation, or simply stateon Septhere is no agreement for
that te
ved
rchi
cooperation. There shall be no public9access to the text of the conference at the
5 a
-502 unless ordered by the court.
bench provided under this, paragraph
o. 15
e N
o

hn D

. Jo
SA v

4. All sentencing transcripts shall include a sealed portion containing a
in U
cited
conference at the bench, which reflects either (a) any discussion of or
references to the defendant’s cooperation, including the court's ruling on any
sentencing motion relating to the defendant's cooperation; or (b) a statement
that there has been no cooperation. There shall be no public access to the text
of the conference at the bench provided under this paragraph unless ordered by
the court.
5. All motions under Rule 35 of the Federal Rules of Criminal Procedure based
on the cooperation with the government shall be sealed and there shall be no
public access to the motion unless ordered by the court.
6. Copies of presentence reports and any other sealed documents, if requested by
an inmate, shall be forwarded by the Chief Probation Officer or the Clerk of
the Court to the warden of the appropriate institution for review by the inmate
in an area designated by the warden and may neither be retained by the inmate,
nor reviewed in the presence of another inmate, consistent with the institutional
policies of the Bureau of Prisons. Federal court officers or employees
(including probation officers and federal public defender staff), community
defender staff, retained counsel, appointed CJA panel attorneys, and any other

September 19, 2016

Page 250 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 251 of 497

person in an attorney-client relationship with the inmate may, consistent with
any applicable local rules or standing orders, review with him or her any sealed
portion of the file in his or her case, but may not leave a copy of a document
sealed pursuant to this guidance with an inmate.
7. Clerks of the United States district courts, when requested to provide a copy of
docket entries in criminal matters to an inmate or any other requesting party,
shall include in a letter transmitting the docket entries, a statement that,
pursuant to this guidance, all plea agreements and sentencing memoranda
contain a sealed supplement which is either a statement that there is
cooperation, including the terms thereof, or a statement that there is no
cooperation, and, as a result, it is not possible to determine from examination
of docket entries whether a defendant did or did not cooperate with the
government.
8. All documents, or portions thereof, sealed pursuant to this guidance shall
remain under seal indefinitely until otherwise ordered by the court on a caseby-case basis.
9. Nothing contained herein shall be construed to relieve the government in any
017
case of its disclosure obligations, such as those undermber 8, 2v. Maryland, 373
Brady
pte
U.S. 83 (1963), Giglio v. United States, 405 d on S150 (1972), and Jencks v.
U.S. e
ve
rchi
59
United States, 353 U.S. 657 (1957)2(asacodified at 18 U.S.C. § 3500).
-50
o. 15
e, N
n Do
involving defendants
Joh

10. Judicial opinions .
or witnesses that have agreed to
Av
n US the government, where reasonably practicable, should avoid
cooperate iwith
cited
discussing or making any reference to the fact of a defendant’s or witness’s
cooperation.

September 19, 2016

Page 251 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 252 of 497

THIS PAGE INTENTIONALLY BLANK

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 252 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 253 of 497

TAB 6D
d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 253 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 254 of 497

THIS PAGE INTENTIONALLY BLANK

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 254 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 255 of 497

o
o
o
d on

o

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 255 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 256 of 497

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 256 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 257 of 497

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 257 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 258 of 497

7
8
23
30
40
36
28
16
33
53
21
44

7
5
17
16
29
26
20
4
20
31
13
33

4
5
6
15
28
12
4
19
19
12
9

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 258 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 259 of 497

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 259 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 260 of 497

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 260 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 261 of 497

sua sponte

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 261 of 340

September 19, 2016

sua sponte

hn D

v. Jo
USA
in
cited

. 15-

sua sponte

o
oe, N

e

rchiv

9a
5025

ptem

Se
d on

017
r 8, 2
be

Page 262 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 262 of 497

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 263 of 497

sua sponte
sua sponte

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 263 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 264 of 497

sua
sponte

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 264 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 265 of 497

sua sponte

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 265 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 266 of 497

THIS PAGE INTENTIONALLY BLANK

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 266 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 267 of 497

TAB 6E
d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 267 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 268 of 497

THIS PAGE INTENTIONALLY BLANK

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 268 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 269 of 497

d on

cited

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

3

September 19, 2016

Page 269 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 270 of 497

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 270 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 271 of 497

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 271 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 272 of 497

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 272 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 273 of 497

d on

cited

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

.

September 19, 2016

Page 273 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 274 of 497

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 274 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 275 of 497

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 275 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 276 of 497

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 276 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 277 of 497

TAB 6F
d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 277 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 278 of 497

THIS PAGE INTENTIONALLY BLANK

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 278 of 340

AK

ALM

ALS

AZ

CAC

9

11

11

9

9

Authority

L.Cr.R. 49.1-2

pg. 68

pg. 39

pg. 4; 6-7

Page No.
(If Applicable)

pg. 19

017
r 8, 2
be

Summary

L.Cr.R.11.2 (e) Plea Agreement Supplement; In each case, a “Plea Agreement Supplement” must be filed under seal in
conjunction with every Plea Agreement.(1) If a criminal defendant has agreed to cooperate, the Plea Agreement Supplement
must contain the cooperation agreement. (2) If the criminal defendant and the United States have not entered into a
cooperation agreement, the Plea Agreement Supplement must indicate that no such agreement exists. L.Cr.R.32.1(e)
Sentencing Memorandum Supplement. In each case in which a sentencing memorandum is filed, a “Sentencing Memorandum
Supplement” must be filed under seal. (1) If the criminal defendant has agreed to cooperate, the Sentencing Memorandum.
Supplement must include any relevant or pertinent discussion of the cooperation agreement, including its affect on the
sentence to be imposed. (2) If the criminal defendant and the United States have not entered into a cooperation agreement, the
Sentencing Memorandum Supplement must indicate that there is no cooperation agreement.
L.Cr.R. 32.2. Rule 32.2 Disclosure of Pretrial Services and Presentence Reports (a) General Rule of Confidentiality. (1) The
pretrial services, presentence and probation reports and records, including the notes, recordings, memoranda, interviews, and
statements, maintained by the probation and pretrial services office of this court, and correspondence to the United States
Probation and Pretrial Services Office for the District of Alaska or to the court, relative to a charged defendant, are hereby
declared to be confidential records of the court.

hn D

Presentence reports sealed; other documents sealed
upon request

L.Cr.R. 49.1-2 Exceptions. The documents listed below are not to be included in the public case file, and are therefore excluded
from the redaction requirements of F.R.Crim.P. 49.1 and L.Cr.R. 49.1-1:
(3) Presentence investigation reports;… (3) Under-Seal and In-Camera Documents, and Other Documents Excluded from the
Public Case File.5 Applications and proposed orders to seal or file in camera, along with the document for which protection is
sought, and any documents for which under-seal or in-camera filing is authorized by statute, rule, or prior court order must be
presented for filing in paper form. Unless the documents are subject to L.Cr.R. 49-1.2(b)(4), or the Court orders otherwise, the
original and the judge’s copy of the documents must be submitted for filing in separate sealed envelopes, with a copy of the
title page attached to the front of each envelope, and must be accompanied by a PDF version of the documents on a CD.

Page 279 of 340

Supplements to plea agreements, 5K1.1 motions and
sentencing memoranda referencing cooperation
automatically sealed without a motion

General Order 11-09 The Filing of Documents Related to Plea Agreements Involving Cooperation; It is ordered that certain
documents filed in criminal cases involving a defendant's cooperation with the government are eligible for filing under seal
without motion: 1. Cooperation Plea Addendum; 2. USSG 5K1.1 Motion for Departure for Substantial Assistance to the
Government; 3. Any Sentencing Memoranda that reference the defendant's cooperation directly or by inference [...]

e

Downward departure or reduction in sentence
motions filed under seal without a motion;
presentence reports sealed

o
oe, N

. 15-

9a
5025

rchiv

Rule 5.2 (2) No publicly filed motion or order under this Rule is required for sealing the following: (A) Motion by the United
States for a downward departure or reduction of sentence in a criminal case, with leave of Court upon a showing of particular
need in an individual case to prevent serious harm; or Criminal L.R. 32. Sentencing and Judgment (d) Confidentiality of
Presentence Reports. Confidential records of this Court maintained by the Probation Office, including presentence investigation
reports and probation supervision records, may not be disclosed except upon written petition to the Court establishing with
particularity the need for specified information contained in such records. No disclosure shall be made except upon Court order.

Se
d on

L.Cr. R. 32.1 Disclosure of Presentence Reports or Probation Records.
(a) No confidential record of this Court maintained by the Probation Office, including presentence and supervision records, shall
be disclosed except as provided by Fed. R. Crim. P. 32, and as provided by this local rule.

ptem

Presentence reports kept confidential

Supplements attached to every plea agreement and
sentencing memo; presentence reports confidential

Relevant Text

v. Jo
USA
in
cited

General Order 11-09 eff.
7/1/2011

L.Cr.R 32(d)

L.Cr.R 32.1

L.Cr.R 11.2(e); 32.1.

September 19, 2016

District

Circuit

Local Rules and Standing Orders Regarding Sealing of Court Documents

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 279 of 497

CAN

CAS

CO

CT

9

9

10

2
pg. 124; pg. 139-40

L. Cr. R. 32 (m) and
57(b)(7)(a)

Presentence reports sealed; others documents sealed
by motion and court order

ptem

. 15-

o
oe, N

L. Cr. R. 32. (d) Restricted Access. Unless otherwise ordered, a motion for a departure or variance shall not be filed as a
restricted document. L.Cr.R 47.1 PUBLIC ACCESS TO CASES, DOCUMENTS, AND PROCEEDINGS; (1) Documents that shall be
filed with Level 2 restriction (access limited to the filing party, the affected defendant(s), the government, and the court): (A)
presentence reports and addenda and related documents, including correspondence or other documents related to sentencing,
including letters, reports, certificates, awards, photographs, or other documents pertaining to the defendant; ...

e

rchiv

9a
5025

Se
d on

General Order 514-C Adopting A Policy on Privacy and Public Access to Electronic Case Files: Without a court order, the court
shall not provide public electronic access to the following documents: […] d. presentence reports and all sentencing materials
including the statement of reasons related to the judgement of conviction. Only the judgment of conviction will be scanned.

017
r 8, 2
be

Page 280 of 340

L.Cr.R 32
(g) Any information that the Probation Officer believes, consistent with Fed.R.Crim.P. 32(b)(5), should not be disclosed to the
defendant (such as ... information obtained upon a promise of confidentiality, or other information the disclosure of which
might result in harm, physical or otherwise, to the defendant or other persons) shall be submitted on a separate page from the
body of the report and marked "confidential." The sentencing Judge in lieu of making the confidential page available, exclusive
of the sentencing recommendation, shall summarize in writing the factual information contained therein if it is to be relied on in
Information that should not be disclosed to the
determining the sentence. The summary may be provided to the parties in camera. (k) Disclosure to Other Agencies:
defendant for consideration of safety of witness,
presentence report to be marked "Confidential, property of U.S. Courts." "6.... requests for disclosure shall be handled on an
among other things, is to be submitted on separate
individual basis by the Court, and shall be granted only upon a showing of compelling need for disclosure in order to meet the
page from body of presentence report. Transcript
ends of justice." (m) The Role of the United States Attorney; The United States Attorney or an Assistant United States Attorney
cooperation and sealed cooperation maintained by the
may advise the Judge, on the record or confidentially in writing, of any cooperation rendered by the defendant to the
court.
Government. If such information is given in written form, the memorandum shall be submitted by the U.S. Attorney and it shall
be revealed to defense counsel unless the United States Attorney or his or her assistant shows good cause for non-disclosure.
L.Cr.R 57(b)(7)(a) Cooperation Agreements and Related Filings; When a defendant’s plea agreement has been filed and the
Court has ordered that the associated cooperation agreement shall be sealed, the executed cooperation agreement and
transcript of the canvass of a defendant regarding a cooperation agreement shall be maintained by the judicial officer who will
sentence the defendant.

Presentence reports restricted to parties and the
court; motions for departure or variance not filed as
restricted unless by court order

Presentence reports, and all sentencing materials
public electronic access.

L.Cr.R. 32-5. Final Presentence Report Commentary: With the prior approval of the Court, the sentencing memorandum may
be filed under seal.
(a) Sealing Documents: General Principles. Documents may be sealed only by written order of the Court, upon the showing
Presentence reports, sentencing memoranda and
required by applicable law. To ensure that documents are properly sealed, specific requests to seal must be made even if an
responses may be filed under seal with prior court
existing protective order, statute, or rule requires or permits the sealing of the document. Notice that a request to seal has been approval. But request to seal is publically available her
made will typically be filed in the publicly available case file. Unless the Court orders otherwise, court orders sealing documents
documents also upon court order
will also be filed in the publicly available case file and will not reveal the sealed information. Access to all documents filed under
seal will be restricted to the Court and authorized court personnel.

nD
. Joh

Av
in US
cited

pg. 34

pg. 163

L.R 47.1 on sealing
documents

General Order 514-C

L.R. 32-5 (c)-(d)

L. Cr.R. 406 and 141

September 19, 2016

CAE

9

RULE 460 DISCLOSURE OF PRESENTENCE REPORTS, PRETRIAL SERVICES REPORTS AND RELATED RECORDS (a) Confidential
Character of Presentence Reports, Pretrial Services Reports, and Related Records. The presentence reports, pretrial services
reports, violation reports, and related documents are confidential records of the United States District Court. Unless further
disclosure is expressly authorized by order of the Court or this rule, such records shall be disclosed only to the Court, court
personnel, the defendant, the defendant’s counsel, the defense investigator, if any, and the United States Attorney’s Office in
connection with the sentencing, detention/release, or violation hearing. RULE 141. (a) Sealing Documents: General Principles.
Documents may be sealed only by written order of the Court, upon the showing required by applicable law. To ensure that
documents are properly sealed, specific requests to seal must be made even if an existing protective order, statute, or rule
requires or permits the sealing of the document. Notice that a request to seal has been made will typically be filed in the
publicly available case file. Unless the Court orders otherwise, court orders sealing documents will also be filed in the publicly
available case file and will not reveal the sealed information. Access to all documents filed under seal will be restricted to the
Court and authorized court personnel.

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 280 of 497

FLS

GAN

HI

IAN

IAS

ID

ILC

11

11

9

8

8

9

7

32.1(C)

pg. 25

See above

pg. 15

pg. 17

pg. 152

pg. 108 (in pdf)

L.Civ.5.3

A
n US
ted i
ci

L.Cr.R 32.1 and L.Civ.5.3

L.R. 10(h) and Appx. B

see above

L.Cr.R. 32.1

L.Cr.R 32.1

Admin Order 2009-2

L.Cr.R. 49

September 19, 2016

DC

DC

Presentence report under seal

CrimLR32.1. Sentencing Procedure
(g) Not less than fourteen (14) days prior to the sentencing date, the completed presentence report shall be submitted to the
court and to all parties under seal.

Sealing by motion; redactions allowed for information
concerning cooperation

Presentence reports not available for public
inspection; other documents sealed upon motion

redactions have been made.

arch
0259
5
10. If sensitive information must be included in a document, certain personal and identifying information should be redacted
. 15from the document,, No it is filed electronically or non-electronically. (6)Information concerning a person’s cooperation
whether
Doe
with the government; [...]It is the responsibility of counsel and the parties to assure that appropriate redactions from
John have been made before they are filed; the Clerk of Court will not review filings to determine whether such
documents
v.

on
ived

em
Sept

10. If sensitive information must be included in a document, certain personal and identifying information should be redacted
from the document, whether it is filed electronically or non-electronically. (6)Information concerning a person’s cooperation
with the government; [...]It is the responsibility of counsel and the parties to assure that appropriate redactions from
documents have been made before they are filed; the Clerk of Court will not review filings to determine whether such
redactions have been made.

Sealing by motion; redactions allowed for information
concerning cooperation

Presentence report confidential and under court
control as to disclosure

L.Cr.R 32.1 PRESENTENCE REPORT
B. Confidentiality. Any copy of a presentence report which this court makes available, or has made available, to the United
States Parole Commission or to the Bureau of Prisons constitutes a confidential court document and shall be presumed to
remain under the continuing control of the court during the time it is in the temporary custody of these agencies. A copy of the
presentence report shall be loaned to the Parole Commission and Bureau of Prisons only for the purpose of enabling those
agencies to carry out their official functions, including parole release and supervision. The presentence report shall be returned
to the court after such use or upon request. Disclosure of the report is authorized only so far as necessary to comply with 18
U.S.C. § 4208(b)(2).

ber 8

All plea agreements will be public accessible
documents

Administrative Order 2009-2 REMOTE ELECTRONIC ACCESS TO PLEA AGREEMENTS; ...All plea agreements filed on or after
February 20, 2009 will be public documents, with full remote access available to all members of the public and the bar, unless
the Court has entered an Order in advance directing the sealing or otherwise restricting a plea agreement;

7
, 201

Sealing upon order of the court.

(6)(i) SEALED OR CONFIDENTIAL DOCUMENTS. Absent statutory authority, no case or document may be sealed without an
order from the Court. A document filed with the intention of it being sealed in an otherwise public case must be filed by
electronic means in a manner authroized by the Clerk and shall be accompanied by a motion to seal. The document will be
treated as sealed, pending the outcome of the ruling on the motion. Failure to file a motion to seal will result in the document
being placed on the public record.

(C) The presentence investigation report, the statement of reasons in the judgment of conviction, and the probation officer’s
sentencing recommendation will be sealed unless otherwise directed by the presiding judge. . . (2) Sealed Documents. The
Court does not approve of the filing of documents under seal as a matter. A party who has a legal basis for filing a document
under seal without prior court order must electronically file a motion for leave to file under seal. The motion must include an
explanation of how the document meets the legal standards for filing sealed documents. The document in question may not be
attached to the motion as an attachment but rather must be electronically filed contemporaneously using the separate docket
event “Sealed Document.” In the rare event that the motion itself must be filed under seal, the motion must be electronically
filed using the docket event “Sealed Motion.”

Page 281 of 340

Court discourages sealed documents; only approved
by motion with explanation; presentence reports are
sealed

L.Cr.R 32.1 Disclosure of Investigative Reports by U.S. Probation Office a) Presentence Report, Sentencing Recommendation
and Confidentiality. 1) Presentence reports are not available for public inspection. They shall not be reproduced or copies
distributed to other agencies or other individuals unless the Court or the Chief United States Probation Officer grants
permission.(a) General Provisions. (1) Motion to File Under Seal. Counsel seeking to file a document under seal shall file a
motion to seal, along with supporting memorandum and proposed order, and file the document with the Clerk of Court. Said
motion must contain “MOTION TO SEAL” in bold letters in the caption of the pleading. (2) Public Information. Unless otherwise
ordered, the motion to seal will be noted in the public record of the Court. However, the filing party or the Clerk of Court shall
be responsible for restricting public access to the sealed documents, as ordered by the Court.

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 281 of 497

INN

INS

KS

KYE

KYW

7

7

10

6

6

General Order 2010-06

General Order 16-06
(General Order 08-09
was withdrawn)

L.Cr.R. 32.1

L.Cr.R. 49.1-2 (c)

L.R. 5-3(c)(2)

L.Cr.R. 32.3 and 26.2

September 19, 2016

ILN

7

e

Plea agreements and other documents referencing
cooperation can be filed under seal without a motion

Supplement attached to every plea agreement.

GENERAL ORDER 2010-06 IN RE: Supplemental Plea Agreements;
[…] Because a plea agreement may contain information regarding cooperation and because such documents are available on the
internet by way of PACER, the Court has decided to restructure its practice to make each case appear identical. [...] (1) All plea
agreements will be accompanied by a sealed document entitled "plea supplement." (2) That the plea supplement will contain
either a cooperation agreement or a statement that no such agreement exists. (3) That the Clerk is DIRECTED to SEAL the plea
supplement

Page 282 of 340

Supplement attached to every plea agreement;
cooperation agreements to be maintained by the
Government.

GENERAL ORDER 16-06 IN RE: Plea Agreement Supplement in Criminal Cases; criminal case resolved by plea requires a sealed
supplement to accompany the plea agreement.
1)The supplement to a plea agreement shall NOT be filed in the record, unless otherwise ordered by the Court
2) The government will maintain the original cooperation agreement. In the event of a dispute, the parties may present the
cooperation agreement to the Court.

oe

. 15
, No

-502

RULE CR32.1 PRESENTENCE REPORTS
(d) Reports Made Available to U.S. Parole Commission or Bureau of Prisons. Any copy of a presentence report that the court
makes available or has made available to the United States Parole Commission or to the Bureau of Prisons, constitutes a
confidential court document and shall be presumed to remain under the continuing control of the court during the time it is in
the temporary custody of those agencies.
CR49.6. (a) Procedure for Requesting Leave to File Under Seal. In criminal cases, a party filing a motion for leave to file
documents under seal must file that motion electronically, under seal, in the Electronic Filing System. The motion for leave to
file under seal must attach as sealed exhibits the document(s) the party requests to be filed under seal. Finally, if required, the
party must simultaneously provide the motion and document(s) it requests to be filed under seal to other parties in the case.

rch
59 a

ived

Presentence reports confidential; sealing only made
upon motion

emb
Sept
on

017
r 8, 2

L.Cr.R.49.1-2 - Filing Under Seal
(c) No Separate Motion Necessary. The following documents may be filed under seal without motion or further order of the
court, provided counsel has a good faith belief that sealing is required to ensure the safety, privacy or cooperation of a person
or entity, or to otherwise protect a substantial public interest: [...]
(6) plea agreements that reference a defendant’s cooperation and related documents, whether filed by the government or the
defendant;

nD
. Joh

Av
in US
cited

pg. 151

pg. 100-101

pg. 9-11

Order for good cause required for sealing; docket
entries sanitized; presentence reports confidential

L.R. 5-3(c)(2) Ex Parte and Sealed Filings in a Criminal Case; The following documents may be filed under seal without motion
or further order of the court provided counsel has a good faith belief that sealing is required to ensure the safety, privacy or
Rule 35 motions for sentence variance or reduction in
cooperation of a person or entity, or to otherwise protect a substantial public interest: [...] (vii)Motions for sentence variance or
sentence under 5K1.1 automatically sealed
reduction based on substantial assistance pursuant to Fed. R. Crim. P. 35 or U.S.S.G. § 5K1.1, including supporting documents;
[...]

LR26.2. Sealed Documents (b) Sealing Order. The court may for good cause shown enter an order directing that one or more
documents be filed under seal. No attorney or party may file a document under seal without order of court specifying the
particular document or portion of a document that may be filed under seal. (f) Docket Entries. The court may on written motion
and for good cause shown enter an order directing that the docket entry for a sealed document show only that a sealed
document was filed without any notation indicating its nature. Unless the Court directs otherwise, a sealed document shall be
filed pursuant to procedures referenced by Local Rule 5.8. LCrR32.3. Confidentiality of Records Relating to Presentence
Investigation Reports and Probation Supervision
Records maintained by the probation department of this Court relating to the preparation of presentence investigation reports
and the supervision of persons on probation or supervised release are confidential. Information contained in the records that is
relied on by the probation department to prepare presentence investigation or supervision reports may be released only by
order of the court.

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 282 of 497

LAW

MA

MD

ME

MIW

MN

MOE

5

1

4

1

6

8

8

Presentence reports sealed; other documents sealed
upon court order

Pleadings and Documents Filed Under Seal
(B) Pleadings and Documents in Criminal Cases.
(1) Unless otherwise ordered by the Court, the following documents and materials will be filed and maintained by the Clerk
under seal: all pleadings and documents relating to grand jury proceedings . . . all presentence investigation reports and such
other materials regarding sentencing which the Court orders filed under seal; and any other material or item ordered sealed by
the Court.

Misc. Provision 13.05
and

Page 283 of 340

Motions for reduction in sentence must be filed under
seal

pg. 20

L.R. 83.10(g)(2)

L.Cr.R. 49.8(a)

LR 83.10 CRIMINAL SENTENCING (g) Response to Position Regarding Sentencing; Motion for Downward Departure;
2) If the government intends to move for a downward departure under § 5K1.1 of the Sentencing Guidelines or under 18 U.S.C.
§ 3553(e), it must do so at least 7 days before sentencing. The government’s motion must be filed under seal and served on the
defendant. The government must provide two courtesy copies to the judge and one courtesy copy to the probation officer.

Doe

Sealing by motion only

A
n US
ted i
ci

-502

. 15
, No

LR 157.6(b) A party seeking to obtain an order sealing any pleading or document not listed in subsection (a) of this Rule, or
seeking to continue the sealing of any pleading or document already sealed shall file a motion pursuant to this subparagraph (b).
The motion shall state the basis for sealing, the period of time during which the document(s) are to be sealed, and shall set forth
Sealing is by motion and court order only, period for
specific findings as to the need for sealing and the duration thereof. The motion itself shall be filed under seal, and remain
sealing decided on case by case basis
sealed pending order of the Court pursuant to subsection (e) of this Rule. The documents or pleadings for which sealing is
sought will be accepted provisionally under seal. Unless the motion is filed ex parte, the motion shall include a statement
whether there is agreement of the parties to the sealing.

ived

Per practice, sealed supplement in every plea
agreement and plea hearing transcript; presentence
report considered internal court document

RULE 213. SENTENCING 1. Confidentiality of Presentence, Supervised Release, and Probation Records a) Generally. Unless the
Court orders that a presentence report, supervised release report, violation report, probation record, or portion thereof be
placed in the public record, such report or record is a confidential internal court document to which the public has no right of
access. [...]

rch
59 a

Plea and cooperation agreements may be sealed by
court order for 'exceptional circumstances'

(5) Exceptional Circumstances. Any other matters that, due to exceptional circumstances presented in the case, should not be
disclosed in the interests of justice. Any such redaction or protective order shall be in writing or made on the record and shall
state the reasons for the order. The court, in fashioning such an order, shall give due regard to the need to protect the public
from further attorney misconduct and to maintain public confidence in the integrity of the court.

ptem
n Se
o

Presentence report and sentencing memoranda filed
under seal

LCrR32.1 Sentencing (h); The presentence report and addendum, along with the written statement of reasons of the district
court for imposition of sentence as required by 18 U.S.C. §3553(c), shall be filed in
the record under seal by the Court immediately after sentencing.
32.2 Presentencing Memoranda; The presentence report and addendum, along with the written statement of reasons of the
district court for imposition of sentence as required by 18 U.S.C. §3553(c), shall be filed in the record under seal by the Court
immediately after sentencing.

017
r 8, 2
be

All sentencing memoranda and 5K1.1 Motions
automatically filed under seal

hn
v. Jo

pg. 122 and pg. 142

pg. 38

p. 118

pg. 52

pg. 59

Requests to seal - The procedures set forth in this rule apply to cases that have not been sealed in their entirety. Documents
may be submitted under seal only if authorized by the Court for good cause shown. A person seeking leave to file a document
under seal must file a motion requesting such relief, unless the Court has entered a previous order authorizing the submission of
the document under seal or submission under seal is authorized by statute. The motion seeking leave to file under seal should
generally be a public filing, unless the submitting party believes in good faith that public access to the motion will compromise
the confidential matter.

Local Rule L.R. 157.6(a)

L.Cr.R.213(1)(a)

Rule 83.6.11

LCr.R.32.1 (H), 32.2

L.Cr.R.32(b)

September 19, 2016

LAM

5

LOCAL CRIMINAL RULE 32 - SENTENCE AND JUDGMENT
(b) Sentencing Memoranda. A party may submit a sentencing memorandum addressing any factor taken into account for
sentencing purposes. The memorandum may contain, but is not limited to, sentencing factors enumerated in 18 U.S.C. §
3553(a); factors for upward or downward departure including those considered pursuant to U.S.S.G. § 5K1.1; argument on
unresolved objections to the presentence report; and any information concerning the background, character, and conduct of
the defendant, in accordance with 18 U.S.C. § 3661. Sentencing memoranda shall be filed UNDER SEAL . . .(c) USSG § 5K1.1
Motions. Government motions, pursuant to USSG § 5K1.1 (Substantial Assistance to Authorities) and accompanying
memorandum, should be filed UNDER SEAL by counsel through the Court’s electronic filing system.

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 283 of 497

MSS

MT

NCE

NCM

NCW

ND

5

9

4

4

4

8

pg. 94 and 85

See above

pg. 5

Supplement attached to all plea agreements; all cases
docketed identically.

Rule 49.1. SEALING OF COURT RECORDS; The process for sealing court records shall be governed by Rule 79 of The Uniform
Local Civil Rules of the Northern and Southern Districts of Mississippi EXCEPT for the following specific documents: [...] (B) Plea
Agreements; (2) All plea agreements shall be accompanied by a sealed document titled “Plea Supplement.” The Plea
Supplement will also contain the government’s sentencing recommendation. The Plea Supplement will be electronically filed
under seal. All cases will be docketed identically with reference to a sealed Plea Supplement, regardless of whether or not a
cooperation agreement exists [...] (C) Motions for Sentence Reductions based on Cooperation with the Government; (1)
Government motions filed pursuant to Fed. R. Crim. P. 35 or Section 5K1.1 of the United States Sentencing Guidelines or 18
U.S.C. § 3553(e) shall be filed under seal without prior leave of court.

pg. 73

pg. 5

ptem

e

Se
d on

Presentence report and 'portions of pleadings' related
to sentencing may be filed under seal without a
motion

Presentence report filed under seal

Page 284 of 340

Standing Order In the Matter Of: Sealed Documents; the following documents fall within the criteria set forth above and
grants leave of Court to file the following documents under seal: (1) plea agreement supplements; (2) motions pursuant to Rule
Plea agreement supplements, Rule 35 motions, 5K1.1,
35 of the Federal Rules of Criminal Procedure, memorandums in support thereof, and responsive filings; (3) motions pursuant to
filed automatically under seal without a motion
Section 5K1.1 of the United States Sentencing Guidelines, memorandums in support thereof, and responsive filings. . . Such
documents shall be filed under seal and shall remain sealed unless otherwise ordered by the Court.

L.Cr.R 55.1(H) Sentencing Materials; All portions of pleadings, motions and objections which incorporate or refer to a
defendant’s pre-sentence report shall, if filed, be filed under seal. No motion to seal shall be required for such materials.

LCrR32.3 CONFIDENTIALITY OF PRESENTENCE INVESTIGATION REPORTS
(a) Presentence investigation reports prepared by the probation office and any response or objection thereto shall be filed
under seal in the Office of the Clerk of Court and shall be visible only to court personnel, attorneys of record in the particular
case to which the report relates, and defendants to whom the particular report relates. Such records shall not be made available
to the public.

hn D

o
oe, N

. 15-

9a
5025

rchiv

In response to "information regarding the misuse of publicly available information regarding misuse of publicly available
information regarding assistance to law enforcement by criminal defendants..." and that information has been posted on
websites such as "whosarat.com". "As to all plea agreements in criminal cases filed after August 28, 2009, the Clerk of this Court
No remote access to plea agreements; motions filed
is directed to file said plea agreements in such a manner that there is no remote electronic public access to plea agreements."
regarding the substantial assistance of a defendant,
(with the exception of court personnel, USPO, and attorneys of record.) The public including media may have access to filed
plea agreements at the clerk's office, subject to existing rules. Motions filed regarding the substantial assistance of a defendant, whether pursuant to USSG 5K1.1., 18 USC 3553(e), or
FEd. R. Crim.P. 35(b) filed under seal. Sealed
whether pursuant to USSG 5K1.1., 18 USC 3553(e), or FEd. R. Crim.P. 35(b) […], shall be filed under seal by the clerk. "The Court
documents available for public inspection after twohas considered alternatives to the blanket sealing of substantial assistance motions, such as entertaining motions to seal on a
year period.
case-by-case basis or merely removing the motions from the electronic window provided by PACER, but has found these
inadequate to preserve the "higher value" (see In re Washington post Co., 807 F.2d 383,390 (4th Cir. 1986)) of preventing
interference with the due administration of justice that results from reprisals against witnesses. But
(2) the sealed documents will ultimately be available for public inspection after the expiration of the two-year period.

017
r 8, 2
be

CR 32.1 Presentence Reports.
Presentence reports filed under seal; rule prohibits
(a) Electronic Filing. (1) The probation office shall provide to the clerk for filing under seal in the electronic record the final
plea agreements from being filed under seal unless by
presentence report as transmitted to the parties and the court before sentencing. L.Cr.R. 11.1 Sealed Plea Agreements. No plea
motion
agreement may be filed under seal unless a party moves for leave to seal under L.R. CR 49.1.

Supplement attached to all plea agreements; all cases
docketed identically.

v. Jo
USA
in
cited

Standing Order Sept. 30,
2011

L.Cr.R.55.1(H)

L.Cr.R 32.3

Amended Standing
Order 09-SO-2 dated
2/12/10

L.Cr.R.11.1 and 32.1

L.Cr.R. 49.1

L.Cr.R. 49.01

September 19, 2016

MSN

5

Rule 49.1. SEALING OF COURT RECORDS; The process for sealing court records shall be governed by Rule 79 of The Uniform
Local Civil Rules of the Northern and Southern Districts of Mississippi EXCEPT for the following specific documents: [...] (B) Plea
Agreements; (2) All plea agreements shall be accompanied by a sealed document titled “Plea Supplement.” The Plea
Supplement will also contain the government’s sentencing recommendation. The Plea Supplement will be electronically filed
under seal. All cases will be docketed identically with reference to a sealed Plea Supplement, regardless of whether or not a
cooperation agreement exists [...] (C) Motions for Sentence Reductions based on Cooperation with the Government; (1)
Government motions filed pursuant to Fed. R. Crim. P. 35 or Section 5K1.1 of the United States Sentencing Guidelines or 18
U.S.C. § 3553(e) shall be filed under seal without prior leave of court.

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 284 of 497

NH

NJ

NM

NV

NYE

1

3

10

9

2

L.Cr.R. 23.1

L.Cr.R. 32.2

pg. 92-93

pg. 90

Av
in US
cited

pg. 3

025

-5
o. 15

Presentence reports and supporting documents
confidential; other documents filed under seal must be
accompanied by motion

oe, N

nD
. Joh

Plea addendum in every case, addendum kept in
prosecutors' files

L.Cr.R. 32.B

d on

RULE 32 Sentencing and Judgment.
32.B Confidential Nature of Report. The presentence report is a confidential record of the United States District Court. It must
not be disclosed to anyone other than the Court, the defendant, the defendants attorney, and the attorney for the government
unless required by law or ordered by the Court.

pg. 7

hive
9 arc

Sealing by motion only, option for redacted and
unredacted copies filed

L.Civ.R. 5.3 (applicable
to criminal cases)

em
Sept

L.Civ.R. 5.3 (3) Any materials deemed confidential by a party or parties and submitted with regard to a motion to seal or
otherwise restrict public access shall be filed electronically under the designation “confidential materials” and shall remain
sealed until such time as the motion is decided, subject to Local Civil Rule 72.1(c)(1)(c). When a document filed under seal
contains both confidential and non-confidential information, an unredacted version shall be filed under seal, and a version with
only the confidential portions redacted shall be filed publicly.

L.R. 83.12 (regarding
sealing)

017
r 8, 2
be

Sealing is by motion only; for 5 year periods or until
completion of imprisonment

83.12 Sealed Documents (c) A motion to seal must be filed conventionally together with the item to be sealed and both will be
accepted provisionally under seal, subject to the court’s subsequent ruling on the motion. The motion must explain the basis for
sealing, specify the proposed date on which the requested seal order shall expire, and designate whether the material is to be
sealed at Level I or Level II. If a party is requesting that only certain portions of a document be sealed, the party must provide a
full copy of the document clearly displaying the portions sought to be sealed. Departure motions based on substantial
assistance need not contain a proposed seal duration and, unless extended upon motion for good cause shown, shall remain
sealed for five (5) years or until the completion of any term of imprisonment, whichever occurs later. Any motion to seal, upon
specific request, may also be sealed if it contains a discussion of the confidential material. If the court denies the motion to seal,
any materials tendered under provisional seal will be returned to the movant.

pg. 23

Presentence reports sealed; entries for sealed
documents hidden from public

L.Cr.R 32.2 and 12.5

September 19, 2016

NE

8

32.2 Pretrial Services, Presentence, and Probation/Supervised Release Records. (a) Confidentiality. Information contained in
pretrial services, presentence, and probation/supervised release records is confidential and may not be disclosed except as
authorized by statute, regulation, or court order. (b) Filing Under Seal. (1) Records Sealed. Except as stated in Nebraska
Criminal Rule 32.1.1, and unless a judge orders otherwise in a specific case, the clerk files under seal all pretrial services,
presentence, and probation/supervised release records... 12.5 Sealed Documents and Objects. (i) Motion to Seal. A party
seeking to file a sealed document or object must electronically file a motion to seal. . .(c) Docket Sheet Entries. When a sealed
document is filed, an entry appears on the electronic docket sheet only for court users and the filing party. The parties and the
public do not have remote access to the sealed document from the docket sheet.

L.Cr. R. 23.1. Free Press-Fair Trial Directives (a) It is the duty of the lawyer or law firm, and of non-lawyer personnel employed
by a lawyer’s office or subject to a lawyer’s supervision, private investigators acting under the supervision of a criminal defense
lawyer, and government agents and police officers, not to release or authorize the release of non-public information or opinion
which a reasonable person would expect to be disseminated by means of public communication, in connection with pending or
imminent criminal litigation with which they are associated, if there is a substantial likelihood that such dissemination will
interfere with a fair trial or otherwise prejudice the due administration of justice. [...] (d) Statements concerning the following
subject matters presumptively involve a substantial likelihood that their public dissemination will interfere with a fair trial or
otherwise prejudice the due administration of justice within the meaning of this rule: [...](4) The identity, testimony or
credibility of prospective witnesses, except that the lawyer or law firm may announce the identity of the victim if the
announcement is not otherwise prohibited by law; (5) The possibility of a plea of guilty to the offense charged or a lesser
offense;

Page 285 of 340

Sealing is by motion only; provisions as to
dissemination of information

CR 32-2. DISCLOSURE OF PRESENTENCE INVESTIGATION REPORTS, SUPERVISION RECORDS OF THE UNITED STATES
PROBATION OFFICE, AND TESTIMONY OF THE PROBATION OFFICER
(a) Confidentiality. The presentence investigation report, supporting documents, and supervision records are confidential court
documents and are not available for public inspection.
LR IA 10-5. SEALED DOCUMENTS
(a) Unless otherwise permitted by statute, rule, or prior court order, papers filed with the court under seal must be
accompanied by a motion for leave to file those documents under seal.

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 285 of 497

NYS

NYW

OHN

OHS

OKE

OKN

2

2

6

6

10

10

L.Cr.R. 32.3, 41.1, 49.5

L.Cr.R 32.1 and 49.3

L.Cr.R. 32.1(k) and 5.2.1

L.Cr.R. 32.2(e) and 49.5

L.Cr.R.32

L.Cr.R. 23.1

L.R.Cr.P.11.1 (c), 23.1

September 19, 2016

NYN

2

pg. 12

pg. 8 and 11

A
n US
ted i
ci

pg. 45; 13

49.4(link)

pg. 7; pg. 10

pg. 92-93

Presentence reports filed under seal; other documents
only by motion and court order

(e) Presentence Report as Part of the Record. (1) The Presentence Report shall be placed by the Clerk in the record under seal
Rule 49.4 Filing Documents Under Seal. No document will be accepted for filing under seal unless a statute, court rule, or prior
court order authorizes the filing of sealed documents. If no statute, rule, or prior order authorizes filing under seal, the
document will not be filed under seal.

Presentence reports confidential; redactions of
information regarding cooperation allowed

documents electronically using the ECF system as provided in S.D. Ohio Civ. R. 5.1. Pro se litigants who have obtained leave must
follow the procedures set forth in subsection (b). The Court may strike any document filed under seal if the filing party failed to
obtain leave of Court.

Sealed documents upon leave of court; presentence
reports confidential

Presentence report confidential and under court
control as to disclosure.

Rule 32. Upon appearance of either retained or assigned counsel and the attorney for the government on a violation of
probation or supervised release, the probation office shall be permitted to provide counsel with a copy of the presentence
report and judgment with statement of reasons from the underlying offense. Further, where the defendant has been previously
convicted of a federal offense, upon appearance of either retained or assigned counsel and the attorney for the government on
a new charge, the probation office shall be permitted to provide counsel with a copy of the presentence report and judgment
with statement of reasons from any previous federal conviction. Rule 55. Except where restrictions are imposed by statute or
rule, there is a presumption that Court documents are accessible to the public and that a substantial showing is necessary to
restrict access.

em
Sept

Sealing is by motion only; provisions as to
dissemination of information

L.Cr.R 11.1(c) Pleas; For any plea agreement that is to be sealed, the United States Attorney shall provide the Court with a
proposed sealing order L.Cr.R 23.1 Free Press-Fair Trial Directives; It is the duty of the lawyer or law firm, and of non-lawyer
personnel employed by a lawyer’s office or subject to a lawyer’s supervision, private investigators acting under the supervision
of a criminal defense lawyer, and government agents and police officers, not to release or authorize the release of non-public
information.

017
r 8, 2
be

Sealing is by motion only; provisions as to
dissemination of information

d on
chive reports are confidential Court documents. All copies
r
L.R. 32.1 Presentence Reports; (k) Both the initial and final presentence
59 a
and all information contained in the reports shall be maintained in confidence by anyone who obtains them and not disclosed to
-502
another for any purpose other than the prosecution or defense of the case or unless the Judge to whom this case is assigned
o. 15
authorizes another disclosure. 5.2.1 Sealed Documents. (a) Filing Under Seal. Unless permitted by statute, parties cannot file
oe, N
hn D
documents under seal without leave of Court. Upon obtaining leave of Court, litigants other than pro se litigants must file the
v. Jo

pg. 86; pg. 91-93

L.Cr.R 11.1(c) Pleas; For any plea agreement that is to be sealed, the United States Attorney shall provide the Court with a
proposed sealing order L.Cr.R 23.1 Free Press-Fair Trial Directives; It is the duty of the lawyer or law firm, and of non-lawyer
personnel employed by a lawyer’s office or subject to a lawyer’s supervision, private investigators acting under the supervision
of a criminal defense lawyer, and government agents and police officers, not to release or authorize the release of non-public
information.

49.5 Sealed Documents.
a. Policy. It is the policy of this Court that sealed documents are disfavored. The Court strongly urges attorneys to present all
arguments and all documents in unsealed pleadings. In an effort to do this, attorneys should use good judgment in generically
referring to matters without revealing confidential information. 41.1.1 Redaction of Personal Data Identifiers. Parties should
exercise caution when filing a document that contains any of the following information and should consider filing such
document under seal, or may refrain from including, or may partially redact where inclusion is necessary: personal identifying
numbers such as . . .information regarding an individual’s cooperation 32.3 Confidential Nature of Presentence Report. The
presentence report is confidential and may only be disclosed to the Court and parties for use in this case and to the U.S.
Sentencing Commission and the U.S. Bureau of Prisons for discharge of their official duties.

Page 286 of 340

Presentence report confidential; sealed documents
disfavored; redactions recommended to protect
cooperation information; redacted documents marked

L.Cr.R 32.1 Presentence Report
C. Confidentiality of Presentence Report. The pretrial services, presentence and probation reports maintained by the probation
office of this Court are hereby declared to be confidential except as otherwise authorized. Correspondence to the United States
Probation Office or to the Court, relative to a charged defendant, shall also be deemed confidential and shall not be released
publicly except upon order of the Court.
L.Cr.R 49.3 Redaction of Personal Identifiers
In addition, parties may refrain from including, or may partially redact where inclusion is necessary, the following confidential
information: [...] information regarding an individual's cooperation with the government;

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 286 of 497

OR

PAE

PAW

PR

RI

SC

SD

9

3

3

1

1

4

8

Standing Order dated
3/4/08; L.R.11.1

Misc. Order
3:04mc5009; L.Cr.R.
49.01

pg. 107

pg. 77

d on

hive
9 arc

Misc. Order 3:04mc5009; …certain information be redacted prior to filing to avoid disclosure of sensitive or protected
information… [as well as] various documents which should be excluded from public access. [...] 2. Pretrial bail, presentence
investigation reports, or supervised release violation reports; [...] L.Cr.R. 49.01 Filing Documents Under Seal. The following
procedures are mandatory and apply to any request to file documents under seal.

LR 303 Documents to be conventionally filed (10) Any pleading or document in a criminal case containing the signature of a
defendant, such as a waiver of indictment or plea agreement; LR 102(d) Filing of Sealed Documents in Criminal Cases.
Documents filed with the Court may not be sealed unless ordered by the Court. If a party or non-party filing a document has a
good faith basis for believing that a document should be sealed, the document shall be accompanied by a motion to seal, which
explains why the document should be sealed.

oe, N

-5
o. 15

025

L.Cr.R. 111 Pleas (b) Contents of Plea Agreements and Plea-Agreement Supplements: "The parties shall ensure that plea
agreements are sanitized as to any reference as to whether a criminal defendant has agreed to cooperate with the United
States." A Plea Agreement Supplement must be filed with every plea agreement, and the Supplement must contain any
cooperation agreement(s) and must indicate if there is none. (d) Plea agreements must also be sanitized of any reference to
how defendant qualifies for safety valve. (e) Duration of Sealing; Plea Agreement Supplements shall remain sealed until
otherwise ordered by the Court.

em
Sept

Standing Order Plea Agreements; To balance the safety of criminal defendants, law enforcement officers, and court personnel
with the public's right to access court documents, the Court implements a procedure to uniformly treat Plea Agreements and
pg. 4 (L.Cr.R. 11.1 Plea motions and orders that reduce a defendant's sentence because that defendant has cooperated with police [...] Plea
Agreements filed with the Court must no longer identify whether or not a defendant has agreed to cooperate with the United
Agreements)
States. Plea Agreement Supplement[s] must contain the cooperation agreement ...[and].. will be filed under seal. L.Cr.R. 11.1
Plea Agreements; [...]the plea agreement supplement will be sealed in all cases.

pg. 7 (L.Cr.R. 49.01)

pg. 63; pg. 5-6

017
r 8, 2
be

L.Cr.R 49(D). Filing Under Seal. The following documents shall be accepted by the Clerk for filing under seal without the
necessity of a separate sealing order: (1) Motions setting forth the substantial assistance of a defendant in the investigation or
prosecution of another person pursuant to U.S.S.G. § 5K1.1 or Fed. R. Crim. P. 35; (2) Motions for writs to produce incarcerated
witnesses for testimony.

nD
. Joh

Av
in US
cited

L.R. Gen 303(c)(2)(F);
L.R. Gen 102 (b) and (d)

L.Cr.R. 111

L.Cr.R.49(D)

Page 287 of 340

Supplements attached to every plea agreement

Presentence reports and sealed documents excluded
from public access

Sealing by court order only

plea and cooperation agreements to be "sanitized,"
and separate non public plea agreement supplement
has any reference of cooperation.

Motions under Rule 35, 5K1.1, and to produce
incarcerated defendants automatically sealed

Notice of Court dated
7/9/2007
Rule 32.1

"The judges of the United States District Court determining that there is an immediate need to address problems endengered by
All documents related to pleas and sentencing and
an Internet website which uses publicly available information to identify and publicize individuals suspected of cooperating with
law enforcement agents appearing on the docket as accessed through the court's CM/ECF system … approve the following
orders relating to those documents, will be designated
on the docket as Plea Documents, Sentencing
protocol for adoption: 1. All documents related to pleas and sentencing and orders relating to those documents, will be
designated on the docket as Plea Documents, Sentencing Documents and Judicial Documents respectively, no matter their
Documents and Judicial Documents respectively;
Presentence Report to remain under continuing
content."
Rule 32.1 Loan of Presentence Investigation Report to US Parole Commission and US Bureau of Prisons "Presentence Report
control of the court. Copies are only loaned to the
Parole Commission or to the BOP.
to remain under continuing control of the court..." "Presentence report outside the "agency record" dentition set forth in U.S. v.
Carson. 631 F.2d 1088 (D.C. Cir. 1980)."

Presentence report confidential and under court
control as to disclosure

LR 3003 - Confidentiality of Presentence Report
The presentence report must remain a confidential court document, disclosure of which is controlled by the Court. Any copies
must be marked "Not For Further Disclosure Without Prior Authorization From the Court."

pg. 45; 51

L.Cr.R 3003

L.Cr.R 11.3; L.Cr.R. 32.1

September 19, 2016

OKW

10

LCrR11.3 Plea Agreements.
All plea agreements shall be accompanied by a sealed document titled “Plea Supplement,” the contents of which shall be limited
Presentence reports are confidential, sealed
to describing any agreement for cooperation. The Plea Supplement will be electronically filed under seal and shall be filed in all
documents and all plea agreements are accompanied
cases regardless of whether a cooperation agreement exists.
by a separate, sealed plea supplement
LCrR32.1 Confidentiality of Pre-Sentence Reports.
(b) Any pre-sentence report filed with the court is a restricted document, that is, access to the document is restricted [...]

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 287 of 497

TNW

TXE

TXN

TXS

TXW

UT

6

5

5

5

5

10

L.Cr.R. 11-1; L.Cr.R. 32-1

L.Cr.R. 32

Admin. Proced. For
Elec. Filing
(6)(1)(c)(2012)

Amended Special
Order 19-1

L.Cr.R 49

L.R. Appendix A

L.Cr.R. 83.9 (h)-(k)

September 19, 2016

TNE

6

A
n US
ted i
ci

pg. 83 (in pdf)

pg. 100

Automatic seal of presentence reports, motions for
downward departure, Rule 35, or other 'relief for
cooperating defendants'

Presentence reports eliminated from access

Supplements attached to every plea agreement

RULE CR-32. SENTENCE AND JUDGMENT (e) Post-Sentencing Disclosures.(1) Presentence Report. After sentencing, the
presentence report and its contents must remain confidential,(2) Confidential Sentencing Recommendation. Except as ordered
by the sentencing judge, the probation officer's confidential sentencing recommendation must not be disclosed.

L.Cr.R. 11-1 PLEA AGREEMENTS; All plea agreements must be in writing and signed by counsel and the defendant. The plea
agreement must be accompanied by a written stipulation of facts relevant to a plea of guilty which, if appropriate, includes the
amount of restitution and a list of victims. If the agreement involves the dismissal of other charges or stipulates that a specific
sentence is appropriate, the court will review and consider the presentence report before accepting or rejecting the plea
agreement. All plea agreements shall be accompanied by a sealed document entitled "Plea Supplement." The Plea Supplement
will be electronically filed under seal.

Page 288 of 340

Presentence reports must remain confidential;
sentencing recommendation must not be disclosed

6. Sealed Documents; (B) Criminal or Miscellaneous Cases: (1). Filing users must electronically file the following documents
under seal: a. Documents related to pre-sentence reports b. Requests to Debrief c. Motions for downward departure, including
motions under Fed R. Crim. P. 35(b) d. Requests for continuances or other relief for cooperating Defendants [...]

United States Sentencing Commission Guidelines Manual 5K1.1; and motions filed for a reduction of sentence under Fed. R.
Crim. P. 35(b).

15No.
, ensure that there is no public access, either in paper or electronic form, to the following documents: […]
e
The clerk ofDo will
court
pretrial bail
John or presentence investigation reports; plea agreement supplements; motions filed for downward departure under
v.

e

rchiv

9a
5025

ptem

Court routinely seals all plea agreements, addenda to
plea agreements, motions for downward departure for
substantial assistance, motions pursuant to Section
5K1.1 of the U.S. Sentencing Guidelines, motions for
reduction of sentence under Fed. R. Crim. P. 35(b),
and related pleadings and orders and memoranda).

L.Cr.R. 49 Service and Filing; [...}
(c) Authorization to Routinely Seal Particular Types of Criminal Case Documents . Despite the general rule cited in section (b)
above, the court finds there is an overriding interest in routinely sealing certain types of criminal case documents, because
public dissemination of the documents would substantially risk endangering the lives or safety of law enforcement officers,
United States Marshals, agents, defendants, witnesses, cooperating informants, judges, court employees, defense counsel, or
prosecutors, or their respective family embers, and could jeopardize continuing criminal investigations. The documents that
trigger this overriding interest are:[...] 5. plea agreements, which shall be governed by paragraph (d) below; 6. addenda to plea
agreements described in paragraph (e) below; 7. motions for downward departure for substantial assistance, and responsive
pleadings and orders granting or denying the same; 8. motions pursuant to Section 5K1.1 of the U.S. Sentencing Guidelines,
memoranda in support thereof, responsive pleadings and orders granting or denying the same; 9. motions for reduction of
sentence under Fed. R. Crim. P. 35(b), memoranda in support thereof, responsive pleadings and orders granting or denying the
same; 10. amended judgments pursuant to a grant of a Fed. R. Crim. P. 35(b) motion; and 11. orders restoring federal benefits
filed in conjunction with item 10 above. Entire criminal case sealed in some instances.

Se
d on

Recommends considering sealing information
regarding cooperation

13.4.3 Protection of Other Sensitive Information; Attorneys and parties shall exercise caution and shall consider redaction or
consider filing a sealed document if any of the following information is referenced: [...] (f) Information regarding an individual’s
cooperation with the government;

017
r 8, 2
be

Supplements attached to every plea agreement

L.Cr.R. 83.9 Sentencing Proceedings. (k) Plea Agreements and Plea Agreement Supplements; The following procedures govern
the filing of plea agreements: 1. Plea agreements will not be sealed on the grounds that the defendant is cooperating with the
Government.
2. Information pertaining to cooperation shall not be set forth in the Plea Agreement. 3. A separate document entitled “Plea
Agreement Supplement” must be filed with every Plea Agreement. 4. Information pertaining to cooperation will be set forth in
the Plea Agreement Supplement. Otherwise, a statement that the defendant is not cooperating will be set forth in the Plea
Agreement Supplement. 5. The Plea Agreement and Plea Agreement Supplement must be filed either prior to the change of plea
hearing or at the time of the change of plea hearing, depending upon the preference of the presiding judge. 6. The plea
agreement supplement will be filed under seal without the necessity of a motion or Court order.

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 288 of 497

VAW

VT

WAW

WIE

WIW

WVN

4

2

9

7

7

4

L. Cr. P. 32.01(f) (g)

Admin. Order 311

L.Cr.R. 32(a) and
R. 79(d);

pg. 86

pg. 2

Presentence reports filed under seal without motion;

L.R.9 Sealed Documents; generally procedures that govern documents under seal in criminal and civil cases (c) Expectations;
(1) No motion or order is required to file the following under seal: [...] c. Presentence investigation reports, pretrial services
reports, psychiatric or psychological evaluations in criminal cases, including documents incorporating the content of the
foregoing documents; ...

025

-5
o. 15

hive
9 arc

Se
d on

ptem

L.Cr.R 32(i) Sentencing; (1) Sentencing Hearing. (A) Section 5K1.1 Motions. If the government intends to file a § 5K1.1 motion
for substantial assistance, the motion must be served on all counsel and filed under seal at least fourteen days prior to
sentencing…(5) Confidentiality. Each copy of a probation department presentence report which this court has or does make
available to the United States Parole Commission, the Bureau of Prisons, the United States Sentencing Commission or any other
agency for any reason whatever constitutes a confidential court document and shall be presumed to remain under the
continuing control of the court during the time that such presentence report is in the temporary custody of any of those
agencies. Such copy of the presentence report shall be provided to such agency only for the purpose of enabling the agency to
carry out its official functions.

017
r 8, 2
be

Motions under Rule 35 and 5K1.1 X, presentence
reports, and related documents filed under seal
without motion

Page 289 of 340

LR Gen P 6.01. Sealed Documents in Public Cases. (a) Motion for Leave to File Under Seal: (1) Motion: To file a document under
seal, a party must first electronically file a Motion for Leave to File Under Seal. If the Motion for Leave to File Under Seal itself
contains sensitive information, the party shall: (i) Electronically file it under seal in CM/ECF and because this is a sealed event
Sealing by motion, motion itself may be filed outside
that is inaccessible to recipients of the NEF, parties shall effect service of process traditionally, or (ii) File the motion with the
electronic service; presentence reports filed under seal
Clerk’s office in paper. The Clerk’s office will then file the motion under seal. The parties remain responsible for effecting service
of process traditionally. L.Cr.P. 3201 Disclosure of Presentence Reports; The Clerk shall file the presentence report on CM/ECF
under seal to assure the confidentiality of the report...

Admin Order 311: GENERAL RULES FOR FILING DOCUMENTS UNDER SEAL; [...]criminal cases only the following documents may
be filed under seal without motion or further order of the court and without an accompanying redacted version provided
counsel has a good faith belief that sealing is required to ensure the safety, privacy or cooperation of a person or entity, or to
otherwise protect a substantial public interest: [...] 8. Motions for sentence variance or reduction based on substantial
assistance pursuant to Fed. R. Crim. P. 35 or Guideline § 5KI.I, including supporting documents;
9. Presentence investigation reports and any addenda or objection

records of this Court maintained by the United States Probation Office, including presentence investigation reports and
probation supervision records, may not be disclosed except upon written petition to the Court establishing with particularity the Presentence reports sealed; other documents sealed
need for specified information contained in such records. [...] (d) Confidential Matters; Sealed Records. (1) The Court will
upon motion, provides for different levels of
consider any document or material filed with the Court to be public unless, at the time of filing, it is accompanied by a separate
restriction upon motion
motion requesting that the document or material, or portions thereof, be sealed by the Court, or unless the document or
material is otherwise protected from disclosure.

5K1.1. motions filed under seal; presentence reports
confidential

Rule 5.2 (a) Order Required. Cases or court documents cannot be sealed without a court order. Otherwise, all official files in the
court’s possession are public documents.
Rule 32. Sentencing Procedure. (c) Presentence Investigation Report. Defense counsel is responsible for ensuring that the
defendant has reviewed and understands the presentence report.
Sealed upon with court orders only; defense counsel
(1) Counsel is prohibited from providing (by any means) a draft, copy or final Presentence Report (“PSR”) to the defendant
prohibited from sharing PSRs or statements regarding
unless the following categories of information have been redacted from the PSR: (A) statements regarding the defendant’s
cooperation
cooperation, including references to USSG §5K1.1. motions and USSG §5C1.2. proffers; (B) statements regarding any other
person’s cooperation including but not limited to post-arrest statements, proffers, grand jury testimony, and trial testimony.
Counsel is not prohibited from reviewing the unredacted PSR with the defendant. (2) Counsel receiving the report may not
disclose the contents to others.

Motions for reduction in sentence, 5K1.1, and Rule 35
sealed without need for motion.

(J) The Court having found that all motions for downward departure filed by the government under 18 U.S.C. § 3553(e), United
States Sentencing Guidelines § 5.K.1.1, or Fed. R. Crim. P. 35 satisfy, by their nature, the requirements for sealing, such motions
and responses thereto may be filed under seal without filing a motion to seal by placing the words “UNDER SEAL” on the face
sheet of the motion and by informing the Clerk of the need to file the document under seal.

oe, N
hnL. D32. Presentence Investigation; Presentence Reports. (a) Confidentiality of Presentence Reports. (1) Confidential
Criminal
v. Jo R.

pg. 56; 88 (in pdf)

pg. . 50

pg. 15-20

pg. 65

A
n US
ted ipg. 50; 9
Gen L. i
c

L.Cr.R 32(i); L.Cr. R. 55

L.Cr.R.5.2, 32(c)

L.R.9(c)

L.Cr.R.49(J)

September 19, 2016

VAE

4

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 289 of 497

4

L.Cr.R. 32.2(a)

September 19, 2016

WVS

ptem

Se
d on

e

rchiv

9a
5025

. 15-

o
oe, N

hn D

v. Jo
USA
in
cited

pg. 58

017
r 8, 2
be

Page 290 of 340

LR Cr P 32.2. Disclosure of Presentence Reports, Statement of Reasons and Probation Records (a) Disclosure of Presentence
Reports. Disclosure of presentence reports is governed by 18 U.S.C. ' 3552(d) and FR Cr P 32. Except as specifically provided by
statute, rule, regulation, or guideline promulgated by the Administrative Office of the United States Courts, or LR Cr P 32.3, no
Presentence reports filed under seal; Clerk directed to
confidential records of the court maintained by the probation office, including presentence reports and probation or supervised
seal all Statements of Reasons
release records, shall be producible except as set forth below or by written petition to the court, particularizing the need for
specific information. . . (b) Statement of Reasons. The Clerk is directed to SEAL the Statement of Reasons in all criminal cases
before this court and shall forward a SEALED copy to counsel of record and to the probation office in this District.

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 290 of 497

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 291 of 497

TAB 6G
d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 291 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 292 of 497

THIS PAGE INTENTIONALLY BLANK

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 292 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 293 of 497

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 293 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 294 of 497

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 294 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 295 of 497

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 295 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 296 of 497

THIS PAGE INTENTIONALLY BLANK

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 296 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 297 of 497

TAB 6H
d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 297 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 298 of 497

THIS PAGE INTENTIONALLY BLANK

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 298 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 299 of 497
U.S. Department of Justice
Criminal Division

Office of Policy and Legislation

Washington, D.C. 20530

May 31, 2016
MEMORANDUM
TO:

The Honorable Lewis A. Kaplan
Chair, Rules Subcommittee on Cooperators

FROM:

Michelle Morales
Acting Director

SUBJECT:

Efforts to Prevent Court Documents from Revealing the Identity of
Cooperators: DOJ Survey and Official Position

I. Background

017
r 8, 2

be
ptem

In June 2015, the Federal Judicial Center issued its “Survey of Harm to Cooperators: A
e
on S
Final Report,” a study it prepared for the Committee archived Administration and Case
on Court
9
5025
Management (CACM). The report concluded -that there is “a linkage between threats and harm
. 15
o
oe, N
to cooperators, on the one hand,oand the use of court documents to identify those cooperators on
hn D
v. J
the other” and that “the injuries and even acts of murder being suffered by cooperators present a
USA
ed in
cit
compelling need for greater controls on access to criminal case information that can be used for
this purpose.” CACM determined that immediate action to address the problem was required,
and adopted a series of recommendations that it proposes all districts should adopt by local rule
or standing order. It also requested that the Rules Committee address whether a nationwide
solution is required, resulting in the creation of this subcommittee. Specifically, this
subcommittee has been charged with examining whether there are amendments to the Federal
Rules of Criminal Procedure that could eliminate or minimize risks to defendants or witnesses
cooperating in federal criminal cases.
The subcommittee first met by teleconference on February 25, 2016 and discussed
generally whether amending the Federal Rules of Criminal Procedure was needed, appropriate,
and whether doing so would have a measurable impact. At the end of that meeting, the
Department of Justice (DOJ) was asked to survey some of the United States Attorney offices
(USAO) most impacted by this issue to determine what measures they were currently taking to
protect the identity of cooperators, and how those measures were working. The Department
conducted such a survey and drafted a preliminary report, but was later informed the results, if
submitted to the subcommittee, would be made public. In light of the sensitivity of the
information, in particular, the notion that if some of the specific measures being taken in the
different districts would be rendered useless if publicized, we provided the district specific

September 19, 2016

Page 299 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 300 of 497
2
findings directly to the Federal Judiciary Center to incorporate into their ongoing study of the
issue, and summarize the findings more generally below.
The Advisory Committee for the Criminal Rules met in Washington, DC on April 18th
and discussed CACM recommendations, as well as the work of the subcommittee. The
consensus was that the issue was an important and complicated one that merited further study.
At the conclusion of the discussion, the Department was asked to develop and announce its
position in regards to the CACM recommendations by Memorial Day, 2016.
II. USAO Survey
The Department, through its Executive Office of United States Attorneys (EOUSA) and
with the support of the Attorney General’s Advisory Committee (AGAC) Subcommittee on
Criminal Practice, reached out to a number of USAOs to provide a description of the measures
taken and their assessment of how those measures have generally worked. The USAOs were
asked several questions for the purposes of this report, specifically:
1. Is there a local rule or standing order in your district with respect to the protection
of cooperation information in a plea agreement or at a plea hearing?
2. Is there a usual practice, informally adhered to by most judges8in 017 district, with
your
r ,2
mbe agreement or at a plea
respect to the protection of cooperation information ineate
p plea
on S
hearing?
ved
rchi
9a

5025

15No.

e,
3. Is your office satisfied with the practice or practices used in your district?
n Do
A v.

US
ed in

Joh

We received responses from fourteen (14) districts, and summarize their responses
cit
broadly below, identifying only those which have Local Rules or Standing Orders that are public.
RESPONSES FROM UNITED STATES ATTORNEY OFFICES
1. Is there a local rule or standing order in your district with respect to the protection of
cooperation information in a plea agreement or at a plea hearing?
Of the 14 offices surveyed, only two replied in the affirmative, affirming they do have
local rules or standing orders. These districts were NDTX, and EDPA.
2. Is there a usual practice, informally adhered to by most judges in your district, with
respect to the protection of cooperation information in a plea agreement or at a plea
hearing?
Some USAOs indeed cited a “usual practice’ in their district, but others districts simply
employ a variety of different measures, depending on the court or judge, or depending on the
specific facts of the case. We describe the variety of measures, noting the districts that employ
them, below:

September 19, 2016

Page 300 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 301 of 497
3
Sealing court documents
The most common practice, unsurprisingly, is the sealing of the various documents that
potentially indicate cooperation. The specific documents sealed, and the manner in which they
are sealed, varies. Yet in most of the districts responding, the sealing of documents is done on a
case by case basis, with courts relying on the parties to request sealing documents as needed.
That indeed is the rule in EDPA:, judges will seal the record in the clerk’s office. In other cases,
they file the 5K motion separately from the sentencing motion, and the court will seal that.
In other districts, the court either asks the parties whether the plea agreement, transcript
of the hearing, and plea documentation should be sealed, or simply does so at the request of the
defense. Significant facts regarding a defendant’s cooperation or reductions of sentence for
cooperating are filed by the government in a separate sealed motion that is usually filed at the
time of sentencing. The transcripts – or portions of them addressing cooperation – are then
sealed upon court or defense motion.
A variety of sealing practices are used, the most common being sealing affidavits or
letters detailing the nature and extent of a defendant’s cooperation. However, different districts,
and different judges take different approaches to sealing. In some, they seal the cooperation
section of plea agreements, with the balance of the agreement filed publicly. Sometimes, they
seal the entire plea agreement with cooperation provisions. Other times, they 017 a plea
mark
8, 2
agreement with cooperation provisions as a court exhibit for the plea mber
proceeding, providing the
epte
on S
agreement to the government to maintain until sentencing,eand file the agreement publicly after
v d
rchi
59 a
sentencing. On occasion, they file the entire 5K1.1/3553(e) motion, including supporting
-502
. 15
affidavit or letter under seal.
, No
Doe
n

. Joh

Av
in US

Separate sealed documents (attachments, letters)
cited
Only one of the districts surveyed follows the CACM recommendation of including a
sealed filing in every case, so as to avoid the mere fact of a sealed document to suggest
cooperation. Indeed, NDTX utilizes a sealed plea agreement supplement in every case,
regardless of cooperation. All plea agreement supplements are sealed as per a Special Order.
In one district, the terms of a cooperation agreement are not contained in the publicly
filed plea agreement but rather, in a “side letter” that is signed by the defendant, defense counsel,
and the AUSA. The judge taking the plea reviews and signs the side letter, acknowledging the
court’s awareness of the terms. The side letter is provided to the United States Probation Office
for its use in preparing the presentence report, but it is never filed publicly, nor is its existence
referenced in any publicly filed document nor is it openly referred to during any public
proceeding. In one district, the cooperation agreement is drafted as an attachment and maintained
in the USAO case file. In another, plea agreements for cooperators have a cooperation
addendum which is discussed at the plea colloquy at sidebar and which is manually file-stamped
by the Deputy Clerk. The cooperation addendum is either publicly filed or filed under seal.
When it is not publicly filed, both parties maintain a copy.

Wording in Plea Agreements

September 19, 2016

Page 301 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 302 of 497
4

Many USAOs make concerted efforts to ensure that plea agreements are free of
references to cooperation. In one district, there is broad language in all plea agreements that
suggests a defendant can cooperate if he/she chooses to do so. Since the cooperation language is
in every plea agreement and not binding on any defendant, it is not evident that a defendant is
cooperating based on the plea agreement alone.
Bench Conferences
A couple of USAOs cited the use of side bars or bench conferences to inform the court of
cooperation information. In one district, Assistant United States Attorneys (AUSAs) file a
sealed 5K motion prior to sentencing and address the motion in a sealed bench conference during
the sentencing of the cooperating defendant. In another, the defense may ask that cooperation
language be omitted from plea agreements, and then that aspect of the plea agreement is
reviewed side bar. Likewise, at sentencing, the cooperation might be discussed side bar.
Timing
Several USAOs mentioned the use of timing to minimize the risk of identifying a
cooperator. In one district, AUSAs file the motions just before the sentencing to avoid any
cooperation information appearing in the Pre-Sentence Report (PSR) or having 7 available on
01 it
r 8, 2
mbe
PACER for too long prior to sentencing. The Federal Public Defenders (FPDs) also generally
e
Sept
delay filing their safety valve debriefs in order to avoidchivedmention in the PSR. In one district,
any on
ar
the typical practice is to delay the production 5-50259
of cooperator discovery until just before trial. In
.1
the absence of a contrary order from the No
oe, court, that usually means until about 60 days before
hn D
v. Jo
trial. In some, sentencingSis delayed until the cooperator’s cooperation is completed. Even then,
A
nU
since there are other d i
cite motions filed under seal at the time of sentencing, it is not therefore evident
that the defendant is cooperating.
Additional protective measures
Although the above measures are mostly limited to those employed during the plea and
sentencing stages, some USAOs employ additional protective measures during other stages of
the investigation and prosecution. Some USAOs obtain protective orders for discovery materials
which disclose cooperators. In some districts, defense counsel are prohibited from sharing the
discovery with the defendant.
In one district, the standard order for pretrial discovery and inspection also states that
temporary custody can be obtained in any case upon written request to the USMS. This
eliminates the need to file a sealed motion – which would be consistent with ‘snitching’ – for
temporary custody orders when proffering detained defendants.
One district that has a a practice as sealing also has a rule in relation to unsealing. There
is a limited unsealing for purposes of producing discovery, where the cooperator testifies at trial.
Depending on the circumstances, the cooperator’s entire case is unsealed at the time of
sentencing. In some circumstances, where there is an ongoing risk to the safety of the

September 19, 2016

Page 302 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 303 of 497
5
cooperator, the cooperator’s case remains under seal post-sentencing, even though the cooperator
testified at trial about his/her cooperation plea agreement and guilty plea pursuant to that
agreement.
No measures generally taken
Some USAOs noted that although they do employ measures when necessary, no
measures are taken in the typical case. One district noted that in spite of their many cooperators,
there are many cases where there is nothing sealed and where all aspects of cooperation are
included in the public filings and record. Another noted that cooperation information is typically
included in public plea agreements and addressed at public plea hearings. Very rarely, and only
when there is a specific and credible threat, do they ask that plea agreements be sealed.

3. Is your office satisfied with the practice or practices used in your district?
The overall sense of the USAOs surveyed was that measures employed had positive
effects, and the more uniformly applied, the better they worked. Below, we describe what
measures were described as having positive effects, and what concerns were raised.
The two office that practice where there are explicit rules or practices 017
– NDTX and
r 8, 2
mbe reported that the
EDPA – reported satisfaction with their practices. Most of the others also
e
Sept
measures they employed, even if on an ad hoc basis, were ed on satisfactory. It was noted that
v mostly
rchi
59 a
measures such as sealing documents as described2above, were most effective when coupled with
-50
o. 15
e, N
Witness Security Program and collaborative efforts with the USMS.
n Do
A v.

US
ed in

Joh

Nonetheless, it was noted that there are indeed flaws in these practices. There is a
cit
recognition that when the only sealed documents are those including cooperator information,
others can monitor the sealed filings to get a sense of who is cooperating. Indeed, one district
where the original practice was to seal cooperation plea agreements has now largely moved to
describe the cooperation in an unfiled attachment. Even the measure of obtaining protective
orders for discovery materials which disclose cooperators has a flaw, because the entire
procedure can be undermined when a defendant decides to represent himself and the government
is required to give the cooperator information to that defendant.
The districts with fewer measures, or more where they are seldom used, were the least
satisfied with the status quo. They noted the lack of uniformity as a problem, stating
predictability and uniformity from case to case which can easily make cooperators feel unsafe or
exposed. And of course, there have been threats in certain districts against cooperating
defendants, and although it is not clear that cooperation was learned from public plea
agreements, there is a recognition that it is possible to learn of a defendant’s cooperation by
searching court files online.

September 19, 2016

Page 303 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 304 of 497
6
Additional Concerns Raised and Ongoing Efforts
One USAO expressed concern that they could not control what the USPO does with the
information gathered while compiling the PSR, which typically includes the cooperator’s names
and statements and can result in defendants sharing this information with each other. It is
common knowledge that defendants arriving and/or returning to the jail or the BOP are asked by
other inmates to provide a copy of their PSR, which may contain unsealed cooperation
information.
Another concern cited was that some judges, for judicial economy, often insist that
multiple defendants in a case be sentenced together, even if some of the defendants have
cooperated against their fellow co-defendants, so that a defendant’s cooperation has been
discussed openly in front of co-defendants whose sentences were enhanced based on the
information provided by the cooperator.
Survey Conclusions
As per the above, the districts with fewer measures, or more where they are seldom used,
were the least satisfied with the status quo, whereas districts that implement measures are fairly
satisfied, even if narrowly targeted to address only those cases that are likely to result in threats
or harm. That said, there is a recognition that the ad hoc measures have their 017
flaws, and indeed,
r 8, 2
mbe we should note that the
the more explicit and uniform practices got the highest marks. However,
epte
o S
above represents only a fraction of USAOs across the rcountry,nand should be considered simply
ved
i
a ch
a snapshot of practices around the country rather 259 a definitive assessment of the value (or
-50 than
. 15
e, The
lack thereof) of the measures discussed. No FJC study, which is studying a broader sample and
n Do
h
will attempt to correlate USA v. Jo
district specific measures with their impact, should further illustrate the
n
i
efficacy of the measures.
cited

III. Department Position
As per the request from the Advisory Committee, the AGAC met and discussed the
implementation of measures to prevent court documents from revealing the identity of
cooperators. Much like the discussion at the subcommittee and the Advisory Committees, there
was a recognition of the seriousness of the problem, of its complexity, and an acknowledgement
of the potential First Amendment implications. There was also a recognition that what may work
in one district may not work in another. Given that fact, the AGAC will distribute the proposed
guidance to the U.S. Attorneys and request that they consider it and make a decision as to
whether it meets the needs of each district, in conjunction with their Chief Judge and other
stakeholders. That directive will be circulated immediately following the dissemination of the
CACM recommendations.
As to potential amendments to the Criminal Rules that are at the basis of this
subcommittee, the Department is not currently advocating for any such amendment. We believe
that it would be useful to first see how the CACM recommendations are received by the district

September 19, 2016

Page 304 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 305 of 497
7
courts throughout the country before taking any additional and broader measures. The
Department is willing to continue the dialogue regarding such amendments as additional
information becomes available.

We look forward to continuing to work with the subcommittee on this important issue.

cc:

Professor Sara Sun Beale, Committee Reporter
Professor Nancy King, Committee Reporter

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 305 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 306 of 497

THIS PAGE INTENTIONALLY BLANK

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 306 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 307 of 497

TAB 6I
d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 307 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 308 of 497

THIS PAGE INTENTIONALLY BLANK

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 308 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 309 of 497
U.S. Department of Justice
Criminal Division

Office of Policy and Legislation

Washington, D.C. 20530

July 12, 2016

MEMORANDUM
TO:

The Honorable Lewis A. Kaplan
Chair
Rules Subcommittee on Cooperators

FROM:

Michelle Morales
Acting Director, Office of Policy and Legislation

SUBJECT:

Efforts to Prevent Court Documents from Revealing the Identity of
2017
Cooperators: Supplemental Findings
er 8,
59
-502

iv

arch

mb

epte

nS
ed o

On June 7, 2016, we submitted to the 5
subcommittee a report summarizing the responses
o. 1
e N
the Department received in response to ,a survey conducted of approximately a dozen United
n Do
h
v. Jo
States Attorney officesn(USAOs) to determine what measures they were currently taking to
USA
di
ci of
protect the identityte cooperators, and how those measures were working. In that memo, we
also summarized the Department’s position on the broader issue of whether there should be a
uniform response throughout the country to better protect the identity of cooperators from
appearing in court documents. As we noted there, the Department would advise the USAOs to
consider the guidance to be issued by the Court Administration and Case Management
Committee (CACM) and make a decision as to whether it meets the needs of each district, in
conjunction with their Chief Judge and other stakeholders. Indeed, the guidance went out on July
1st, 2016, and the Executive Office of the United States Attorneys (EOUSA) promptly followed
with the above message to all USAOs on July 8th.
Nonetheless, the Department has continued to research the issue to further explore the
universe of measures implemented throughout the country, and how they are working. We
conducted open source research of Local Rules and Standing Orders, and expanded our outreach
to USAOs to both confirm our findings and get additional feedback on the measures. We paid
particular interest to districts where they had measures similar to those recommended by CACM.
Below, we summarize the results of this stage of those efforts. 1
1

As we noted in our previous memo, some of the information related to the specific measures being taken in the
different districts is sensitive, as it would further help reveal the identity of cooperators, so we will be describing
measures and their efficacy broadly.

September 19, 2016

Page 309 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 310 of 497
2

1. Sealed Supplements in Every Case
In its interim guidance, CACM recommends that: “[i]n every case, all plea agreements
shall have a public portion and a sealed supplement, and the sealed supplement shall either be a
document containing any discussion of or references to the defendant’s cooperation or a statement
that there is no cooperation agreement. There shall be no public access to the sealed supplement
unless ordered by the court.” They also recommend that “[i]n every case, sentencing memoranda
shall have a public portion and a sealed supplement. Only the sealed supplement shall contain (a)
any discussion of or references to the defendant’s cooperation including any motion by the United
States under 18 U.S.C. § 3553(e) or U.S.S.G. § 5K1.1; or (b) a statement that there has been no
cooperation. There shall be no public access to the sealed supplement unless ordered by the court.”
A number of districts have already implemented the practice of sealing supplements in plea
agreements and/or sentencing memoranda. These districts include (but are not limited to):
District of Alaska, D. Alaska Crim. R. 11.2(e) and 32.1(e)
District of Delaware, per local practice
Eastern District of Kentucky, E.D. Ky. Gen. Order 16-06
Western District of Kentucky, W.D. Ky. Gen. Order 2010-06
017
r 8, 2
mbe
District of Maryland, per local practice
e
Sept
Northern and Southern Districts of Mississippi,cN.D. on S.D. Miss. Crim. R. 49.1(B)
ved &
hi
9 ar
Western District of Oklahoma, W.D.1Okla.5Crim. R. 11.3
-502
o. 5
District of Puerto Rico, D.P.R.e, N R. 111(b) and (e)
n Do Crim.
Joh
District of SouthUSA v. Stand. Order 03-04-2008
n Dakota,
i
cited
Eastern District of Texas, E.D. Tex. Crim. R. 49
Eastern District of Tennessee, E.D. Tenn. Crim. R. 89.3(h)-(k)
District of Utah, D. Utah Crim. R. 11-1.
District of Wyoming, per local practice
We have reached out to the vast majority of the above districts, and they report that the
measures are working well. They have faced no legal challenges or other significant obstacles.
Many of the districts did report that the practice was a result of collaborative process between the
district stakeholders, which is likely a significant factor in why it has been well received.
It bears noting that most of the districts that include the supplement in every case include
boilerplate language in every public document, such as “the U.S. will file a plea agreement
supplement in this case, as it does in every case…;” That aims to reduce the concern that the
supplement itself is proof of cooperation, especially when noticed by those from other districts
where supplements are not standard.

September 19, 2016

Page 310 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 311 of 497
3
2. Automatic sealing of all motions related to reductions in sentence
In its interim guidance, CACM also recommends that “[a]ll motions under Rule 35 of the
Federal Rules of Criminal Procedure based on the cooperation with the government shall be
sealed and there shall be no public access to the motion unless ordered by the court.”
We have identified a number of districts that have Local Rules or Standing Orders which
provide automatic sealing of not only Rule 35 motions, but also of motions under 5K1.1 and
sometimes, other documents that telegraphs cooperation. These districts include (but are not
limited to):
District of Arizona, General Order 11-09 eff. 7/1/2011
Northern District of Indiana, L.R. 5-3(c)(2)
Southern District of Indiana, L.Cr.R. 49.1-2 (c)
Northern District of Iowa, per practice
Middle District of Louisiana, L.Cr.R.32(b)
District of Minnesota, L.R. 83.10(g)(2)
Northern and Southern Districts of Mississippi, N.D. & S.D. Miss. Crim. R. 49.1(B)
District of Montana, D. Mont. Crim. R. 49.1
Eastern District North Carolina, E.D. N.C. Amend. Stand. Order 09-SO-2
017
r 8, 2
mbe
District of North Dakota; D. N.D. Stand. Order 09-30-2011 te
p
n Se
ed o
vR. 49(D)
Western District of Pennsylvania, W.D. Pa. Crim.
rchi
59 a
-502
Eastern District of Texas; Tex. Crim. 5 49
o. 1 R.
e, N
Northern District of Texas, N.D. Tex. Am. Spec. Order 19-1
n Do
h
v. Jo
Southern DistrictUofATexas, S.D. Tex. Admin. Proced. For Elec. Filing (6)(1)(c)
n S
i
cited
Eastern District of Virginia, L.Cr.R.49(J)
Western District of Washington, L.Cr.R 32(i); L.Cr. R. 55
Eastern District of Wisconsin, E.D. Wis. Gen. R. 79(d)(5)
Western District of Wisconsin, Admin. Order 311
We reached out to the majority of the above districts, and they also reported general
satisfaction with the practice of sealing certain documents automatically. In some districts, the
practice required the clerk’s office to implement special procedures under the Case Management/
Electronic Case Files (CM/ECF) system, and the processes work better in some districts than in
others. For example, in some, the docket continues to reflect a sealed document, possibly
flagging cooperation; in others, they have managed to find a workaround that obstacle.
3. Protection of presentence reports
Another recommendation in the interim CACM guidance is that “[c]opies of presentence
reports and any other sealed documents, if requested by an inmate, shall be forwarded by the
Chief Probation Officer or the Clerk of the Court to the warden of the appropriate institution for
review by the inmate in an area designated by the warden and may neither be retained by the
inmate, nor reviewed in the presence of another inmate, consistent with the institutional policies

September 19, 2016

Page 311 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 312 of 497
4
of the Bureau of Prisons. Federal court officers or employees (including probation officers and
federal public defender staff), community defender staff, retained counsel, appointed CJA panel
attorneys, and any other person in an attorney-client relationship with the inmate may, consistent
with any applicable local rules or standing orders, review with him or her any sealed portion of
the file in his or her case, but may not leave a copy of a document sealed pursuant to this
guidance with an inmate.”
As noted by the recommendation, the Bureau of Prisons has a policy that prevents an
inmate from having free access to his presentence report or other sealed documents or allowing
review in the presence of other inmates. Our research of local rules and standing orders reveals
that indeed, a majority of districts do have Local Rules and Standing Orders that refer to the
confidentiality and general management of the use of presentence reports, with some explicitly
stating how those documents can be accessed and by whom, many requiring court orders. It is
our understanding based on our discussions with the U.S. Probation Office that in districts where
there are no such explicit rules, it is because the presentence report is never actually filed, so
there is no need to explicitly seal it. In any case, the evidence suggests that the recognition that
presentence reports should be confidential and access to them very restricted is universal.
Nonetheless, our outreach to USAOs revealed that inmates occasionally still gain access
to presentence reports and other documents that suggest cooperation (or not). We were unable to
discern whether the existence of the rules had any practical impact on their ,access.
2017
er 8

emb

4. Sealing duration
. 15

59
-502

ived

arch

ept
on S

, No
The CACM guidance recommends that “[a]ll documents, or portions thereof, sealed
Doe
ohn
pursuant to this guidance SA v. J
shall remain under seal indefinitely until otherwise ordered by the court
U
ed in Our open source research suggests that although most districts do seal
it
on a case-by-casecbasis.”
indefinitely, several either order a specific duration on a case-by-case basis limitation2, or have
blanket duration, such as two years 3, or five years 4.

5. Other Practices
Our expanded outreach confirmed that the most common practice currently in use is the
sealing of the various documents that potentially indicate cooperation. The specific documents
sealed, and the manner in which they are sealed, varies around the country, and is intrinsically
tied to the local practices and procedures, both formal and informal. Yet all recognize that when
the only sealed documents are those including cooperator information, others can monitor the
sealed filings to get a sense of who is cooperating. However, there is a measurable increase in
the number of districts that have adopted measures similar to those recommended by CACM.
Moreover, a number of districts we surveyed expressed interest in adopting the CACM
measures.
***
2

District of Maine, District of New Jersey
Eastern District of North Carolina
4
District of New Hampshire
3

September 19, 2016

Page 312 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 313 of 497
5

As noted above, the Executive Office of United States Attorneys notified all USAOs of
the CACM guidance, requested that they consider it, and asked that they make a decision as to
whether it meets the needs of each district in conjunction with their Chief Judge and other
stakeholders. We recognize that although the outreach has revealed that the CACM measures
have worked well where implemented, in every district where they have been implemented, the
cooperator practice was a result of close collaboration with and the ‘buy-in’ of district
stakeholders, and were adapted to existing local rules and procedures.
We look forward to continuing to work with the subcommittee on this important issue.

cc:

Professor Sara Sun Beale, Committee Reporter
Professor Nancy King, Committee Reporter

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 313 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 314 of 497

THIS PAGE INTENTIONALLY BLANK

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 314 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 315 of 497

TAB 7
d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 315 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 316 of 497

THIS PAGE INTENTIONALLY BLANK

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 316 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 317 of 497

TAB 7A
d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 317 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 318 of 497

THIS PAGE INTENTIONALLY BLANK

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 318 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 319 of 497

MEMO TO: Members, Criminal Rules Advisory Committee
FROM:

Professors Sara Sun Beale and Nancy King, Reporters

RE:

United States v. Lustig, Rule 11(a)(2)

DATE:

August 21, 2016

Judge Susan Graber of the Ninth Circuit Court of Appeals has called to the Committee’s
attention the split decision in United States v. Lustig, 2016 WL 4056065 (9th Cir. 2016), which
revealed a disagreement about the meaning and effect of Rule 11(a)(2). The issue in Lustig is
17
8, 20
the test for evaluating harmlessness in the context of a conditional guilty rplea under Rule
mbe
pte
11(a)(2), which provides:
n Se
ed o
59
-502

iv

arch

. 15
(2) Conditional Plea. Withothe consent of the court and the government, a
e, N
n Do
defendant may enter a .conditional plea of guilty or nolo contendere, reserving in writing
Joh
Av
n US appellate court review an adverse determination of a specified pretrial
i
the right toithave an
c ed
motion. A defendant who prevails on appeal may then withdraw the plea.

In Lustig, the defendant plead guilty to using a cell phone to facilitate a prostitution
offense under 18 U.S.C. § 1591, reserving the right to appeal from the district court’s denial of
his motion to suppress evidence obtained from several cell phones. On appeal, after concluding
that the district court erred in denying the motion to suppress evidence obtained from the
defendant’s car phones, the court turned to the question whether the error was harmless. The
majority concluded that the error was not harmless because it could have affected the defendant’s
decision to plead guilty. The test in conditional plea cases, said the court, is whether there is “a
reasonable possibility that the error contributed to the plea." Id. at *11 (emphasis in original,
citations omitted). Accordingly, the court reversed the conviction, remanding the case to permit
the defendant to withdraw his guilty plea. The court stated that its analysis was in accord with
the decisions of sister circuits, citing decisions from the Sixth Circuit, D.C. Circuit, and Second
Circuit. It acknowledged, however, that the First Circuit had applied a different harmlessness
standard that would be “even harder (or impossible) for the government to satisfy.” Id. at *12
(citing United States v. Molina-Gomez, 781 F.3d 12, 25 (1st Cir. 2015)).
Judge Watford concurred, writing separately to highlight his view that the final sentence
of Rule 11(a)(2)–“A defendant who prevails on appeal may then withdraw his plea.”–leaves no

September 19, 2016

Page 319 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 320 of 497

room for harmless error analysis. As long as a defendant has prevailed on appeal, Judge Watford
argued, the Rule requires reversal. Under this view, when the defendant reserves the right to
appeal a ruling under Rule 11(a)(2), the only question for the appellate court is whether the ruling
in question was in error, and harmless error comes into play only in determining whether the
district court’s ruling could be affirmed.1 In support of this interpretation of Rule 11(a)(2), Judge
Watford cited decisions from the First Circuit and Fourth Circuits. Id. at *15.
The Lustig opinion is provided at Tab B.
The question is whether a subcommittee should be appointed to consider an amendment
to the Rule 11(a)(2).

d on

cited

1

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

As Judge Watford explained:

There is a place for harmless error review in the context of conditional pleas, but it differs from the
kind of harmless error review the court engages in here. Appellate courts always have the authority
to determine that, even though the district court’s reasoning was flawed in some respect, the district
court’s bottom-line ruling is nonetheless correct and should be affirmed. Or, in like fashion, that the
district court’s ruling on a subsidiary issue was erroneous, but that the court’s bottom-line decision
to deny a suppression motion is still correct, albeit for reasons that differ from those given by the
district court. See, e.g., United States v. Davis, 530 F.3d 1069, 1083–85 (9th Cir. 2008). In those
circumstances we say the district court’s errors are “harmless” in the sense that they do not affect
the ultimate disposition of the appeal—the district court’s bottom-line ruling still gets affirmed.

September 19, 2016

Page 320 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 321 of 497

TAB 7B
d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 321 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 322 of 497

THIS PAGE INTENTIONALLY BLANK

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 322 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 323 of 497

From: donald_molloy
Sent: Wednesday, August 3, 2016 12:24 PM
To: Sara Sun Beale
Cc: King, Nancy
Subject: RE: US vs Lustig 2016 WL 4056065

Judge Graber referred it as follows:
"If you have not already thought of this, you may want to suggest that the
Criminal Rules group take a look at the newly published United States v. Lustig,
No. 14-50549, 2016 WL 4056065 (9th Cir. July 29, 2016). There may be room to
clarify Rule 11(a)(2). Best wishes."

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 323 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 324 of 497

THIS PAGE INTENTIONALLY BLANK

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 324 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 325 of 497

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 325 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 326 of 497

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 326 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 327 of 497

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 327 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 328 of 497

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 328 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 329 of 497

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 329 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 330 of 497

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 330 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 331 of 497

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 331 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 332 of 497

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 332 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 333 of 497

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 333 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 334 of 497

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 334 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 335 of 497

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 335 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 336 of 497

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 336 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 337 of 497

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 337 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 338 of 497

d on

cited

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Footnotes

**
1
2
3
4

5

The Honorable J. Frederick Motz, Senior District Judge for the U.S. District Court for the District of Maryland, sitting by
designation.
In a concurrently filed memorandum disposition, we address and reject several secondary arguments Lustig raises in
his briefing.
Lustig conceded that the Pocket Phones were properly seized incident to arrest.
Lustig was initially arrested for soliciting prostitution in violation of California Penal Code § 647(b). The state charge
against Lustig was eventually dismissed.
Specifically, the defendant relied on United States v. Jones, ––– U.S. ––––, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012)
(holding that attaching a GPS device to a car constituted a Fourth Amendment search), and Florida v. Jardines, –––
U.S. ––––, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013) (holding that a dog-sniff conducted in the curtilage of the defendant's
home was a Fourth Amendment search).
The Fifth Circuit—before Riley and before the Pocket Phone searches at issue here—similarly understood Robinson to
authorize searches of cell phones incident to arrest. See United States v. Finley, 477 F.3d 250, 259–60 (5th Cir. 2007)
(holding that, under Robinson, a valid custodial arrest permits a warrantless search of an individual's cell phone, including
its call records and text messages). In United States v. Flores–Lopez, 670 F.3d 803, 810 (7th Cir. 2012), also decided
before the Pocket Phone searches here, the Seventh Circuit likewise held that looking in a cell phone for the cell phone's
number did not exceed what Robinson allows. Lustig is correct that the Seventh Circuit went on to discuss the unique
features of cell phones, but it explicitly left “for another day” the constitutionality of a “more extensive search of a cell
phone without a warrant.” Id. The First Circuit eventually held that a search incident to arrest does not authorize the
warrantless search of data on a cell phone seized from an arrestee's person, but it did so after the searches at issue

September 19, 2016

Page 338 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 339 of 497

6

7
8
9

10

11
12

13

14

15

here. See United States v. Wurie, 728 F.3d 1, 13 (1st Cir. 2013), aff'd sub nom. Riley v. California, ––– U.S. ––––, 134
S.Ct. 2473, 189 L.Ed.2d 430 (2014).
A sufficient body of district court or state appellate court decisions could perhaps create enough uncertainty about the
scope of prior appellate precedent to make it unreasonable to rely on that precedent. See Davis, 564 U.S. at 250–51,
131 S.Ct. 2419 (Sotomayor, J., concurring in the judgment) (arguing that when the “law in the area” is “unsettled,” law
enforcement officials should “err on the side of constitutional behavior”) (quoting United States v. Johnson, 457 U.S. 537,
561, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982)). We need not determine here whether that is so or precisely what would
be required to create enough uncertainty because it is clear that, in light of Robinson's seemingly broad and categorical
holding, the handful of decisions that Lustig cites were not enough to make reliance on Robinson unreasonable.
Lustig also challenges the resumption of that initial search four days later, which we address below.
Because in Lara the government had not sought application of the good-faith exception in the district court, we held that
the argument had not been preserved on appeal. Id. at 613. We nevertheless proceeded to explain that we would have
rejected the argument on the merits even if not waived. Id.
Lustig also argues that because Riley affirmed the First Circuit's decision in Wurie, which rejected the government's goodfaith exception arguments, Riley must have done so as well. But Wurie concluded that the government had waived the
good-faith exception, not that the exception was inapplicable on the merits. See Wurie, 728 F.3d at 13–14 (holding that
because the government “did not invoke the exception before the district court,” it “entirely failed to carry [its] burden”).
The Government argues that the California Supreme Court's decision in People v. Diaz, 51 Cal.4th 84, 119 Cal.Rptr.3d
105, 244 P.3d 501 (2011), supports the conclusion that Chiappino could reasonably believe that Robinson authorized the
Pocket Phone searches. Diaz held that, under Robinson, searches of cell phones discovered directly from an arrestee's
person comported with the Fourth Amendment. Id., 119 Cal.Rptr.3d 105, 244 P.3d at 505–06.7Lustig responds that Diaz
201
is irrelevant because it is not binding federal appellate authority, and the searches r 8,his phones were conducted by
mbe of
epte
officers cross-designated as federal agents. Because we hold that Robinson provides the applicable binding appellate
on S
ved
rchi
authority creating a reasonable basis for the Pocket Phone searches here, and because we may affirm on any ground
59 a
-502 670, 672 (9th Cir. 1998), we need not decide whether state
supported by the record, United States v. Albers,. 136 F.3d
15
, No
Doe
court decisions such as Diaz have anynrelevance to the good-faith analysis here.
Joh
A v.
This version of the Sullivan opinion cited by the Government was subsequently withdrawn and superseded by a revised
n US
i
cit d
opinion. See UnitedeStates v. Sullivan, 797 F.3d 623 (9th Cir. 2015). The relevant portion remained substantively
unchanged.
Federal Rule of Criminal Procedure 11(a)(2) provides:
With the consent of the court and the government, a defendant may enter a conditional plea of guilty or nolo
contendere, reserving in writing the right to have an appellate court review an adverse determination of a specified
pretrial motion. A defendant who prevails on appeal may then withdraw the plea.
Peyton and Leake framed the issue as whether the defendant had “prevail[ed] on appeal” for purposes of Rule 11(a)(2),
rather than whether the district court error was “harmless.” See Peyton, 745 F.3d at 557; Leake, 95 F.3d at 419–20 & n.21.
However framed, the ultimate question is the same: when is a defendant entitled to withdraw his plea due to the district
court's error? If an error is deemed harmless, then the defendant will not have “prevail[ed] on appeal,” and vice versa.
In the Tenth Circuit's formulation, which we adopt here, concluding that there is a “reasonable possibility” that the error
contributed to the plea decision is the opposite of concluding “beyond a reasonable doubt that the ... error did not
contribute” to the plea decision. Benard, 680 F.3d at 1214 (emphasis added). In other words, an error will be harmless
for Rule 11(a)(2) purposes if an appellate court can conclude beyond a reasonable doubt that the error did not contribute
to the defendant's decision to plead guilty, but will not be harmless if there is a reasonable possibility that the error did
contribute to the decision to plead guilty.
It is unclear to what extent, if any, the First Circuit intended to adopt a different standard than that articulated in Benard,
given that it relied in Molina–Gomez on the same authority as Benard to establish an appellate court's limited role in
determining harmless error under Rule 11(a)(2). See Molina–Gomez, 781 F.3d at 25 (quoting Weber, 668 F.2d at 562, and
noting that Weber “adopt[ed] the rationale of the Seventh Circuit and numerous state courts,” namely Jones v. Wisconsin,
562 F.2d 440 (7th Cir. 1977), People v. Grant, 45 N.Y.2d 366, 408 N.Y.S.2d 429, 380 N.E.2d 257 (1978), and People v.
Hill, 12 Cal.3d 731, 117 Cal.Rptr. 393, 528 P.2d 1 (1974), all of which Benard also relied upon).

September 19, 2016

Page 339 of 340

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 340 of 497

16

17

18

The Government also relies on United States v. Richard Davis, 530 F.3d 1069 (9th Cir. 2008), to argue for a harmlessness
standard that looks solely at the relationship between the evidence in question and the charges of conviction. But nowhere
in Richard Davis did we discuss the import of the suppression error on either the defendant's ultimate conviction or his
decision to plead guilty.
Although the district court indicated that Lustig's motion to reconsider the Car Phone suppression ruling was “moot” due to
the Government's self-suppression of the Car Phone evidence, the Government never actually stated that it would refrain
from using the Car Phone evidence to prosecute its case. Instead, it stated that “to some extent we don't intend to use
the evidence from the cell phones seized in the car.” This is a far cry from disavowing the Car Phone evidence altogether.
On remand, before Lustig is required to make a decision on whether to vacate his plea, Lustig should be given an
opportunity to renew his motion to exclude any fruit of the Car Phone searches. See United States v. Allard, 600 F.2d
1301, 1305–06 (9th Cir. 1979) (“Because the question of taint was not fully explored below, we must remand for resolution
of the remaining factual questions.”).

End of Document

© 2016 Thomson Reuters. No claim to original U.S. Government Works.

d on

cited

September 19, 2016

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Page 340 of 340

Publications Catalog

e

rchiv

9a
5025

ptem

Se
d on

Search tips

017
r 8, 2
be

Search

https://www.fjc.gov/content/310414/survey-harm-cooperators-final-report[9/8/2017 10:14:44 AM]

Tags:
Criminal Litigation & Procedure | Victim and Witness Protection (VWPA) | JCUS Related Research | Committee on Court

Downloadable file:
Download 155 pages

At the request of the Court Administration and Case Management Committee, the Criminal Law Committee, and the Committee
. 15, No
Doe
on Defender Service, the FJC surveyed federalndistrict judges, U.S. Attorney’s Offices, federal defenders, Criminal Justice Act
Joh
A v.
(CJA) district panel representative’s offices, and chief probation and pretrial services offices about harm or threat of harm to
in US
ed
government cooperators.cit
Respondents reported a minimum of 571 instances of harm to defendants/offenders and witnesses in the
past three years. Cases often involved harm to both defendants/offenders and witnesses. Respondents most often reported threats
of physical harm to defendants/offenders or witnesses and to friends or family of defendants/offenders or witnesses. Defendants
were most likely to be harmed or threatened when in some type of custody, while witnesses were either in pretrial detention or not
in custody at the time of harm or threat. Respondents frequently reported court documents or court proceedings as the source for
identifying cooperators. Concerns about harm or threat affected the willingness of both defendants/offenders and witnesses to
cooperate with the government in the past three years. Overall, respondents generally agreed that harm to cooperators was a
significant problem and that more needed to be done to protect cooperators from harm.

Margaret S. Williams, Donna J. Stienstra, Marvin L. Astrada
February 12, 2016
In Print: Available for Distribution

Survey of Harm to Cooperators: Final Report

Home

Survey of Harm to Cooperators: Final Report | Federal Judicial Center

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 341 of 497

USCourts.gov

U.S. Sentencing Commission

Federal Judicial Center Foundation

https://www.fjc.gov/content/310414/survey-harm-cooperators-final-report[9/8/2017 10:14:44 AM]

A
n US
ted i
ci

017
r 8, 2
Site Map | Contact Webmaster | Privacy and Security Noticebe
ptem
n Se
o
ived
arch
0259
15-5
.
, No
Doe
hn
v. Jo

The Federal Judicial Center produced and maintains this site in furtherance of its statutory mission. The Center regards the contents of this site to be responsible and valuable, but these contents do not reflect official
policy or recommendation of the Board of the Federal Judicial Center. The site also contains links to relevant information on websites maintained by other organizations; providing these external links is for the
convenience of this site's users and does not constitute verification or endorsement of the information or the sites to which the links are produced. Opinions expressed in the materials found on this site are those of the
authors, and not necessarily those of the Federal Judicial Center.

Supreme Court of the United States

Thurgood Marshall Federal Judiciary Building
One Columbus Circle NE
Washington DC 20002-8003
202-502-4000

Share this page

Administration & Case Management | Committee on Criminal Law | Committee on Defender Services | Research Reports

Survey of Harm to Cooperators: Final Report | Federal Judicial Center

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 342 of 497

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 343 of 497

Survey of Harm to Cooperators:
Final Report
Prepared for the Court Administration and Case Management Committee,
the Committee on Defender Services, and the Criminal Law Committee
of the Judicial Conference of the United States

Margaret S. Williams, Donna Stienstra, and Marvin Astrada

d on

cited

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Federal Judicial Center
2016
This Federal Judicial Center publication was undertaken in furtherance of the Center’s statutory
mission to develop and conduct research and education programs for the judicial branch. While
the Center regards the content as responsible and valuable, it does not reflect policy or recommendation of the Board of the Federal Judicial Center.

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 344 of 497

d on

nD

. Joh

cited

Av
in US

o.
oe, N

15-5

025

hive
9 arc

017
r 8, 2

Se

be
ptem

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 345 of 497

Contents
Acknowledgments, v
Executive Summary, 1
Introduction, 2
Survey Implementation and Administration, 3
Analysis of Results, 6
Harm or Threat to Defendants/Offenders, 8
Types of harm or threat to defendants/offenders, 9
Location of the defendant/offender at the time of harm or threat, 10
Protective custody, 12
Sources for identifying defendants/offenders, 12
Additional instances of harm or threat to defendants/offenders, 14
Summary of results on harm or threat to defendants/offenders, 15
Harm or Threat to Witnesses, 15
Types of harm or threat to witnesses, 16
Location of witnesses at the time of harm or threat, 17
017
Sources for identifying witnesses, 18
r 8, 2
mbe
Additional instances of harm or threat to witnesses, 20n Septe
do
hive
Summary of results on harm or threat to witnesses, 20
9 arc
025
15-5
Additional Questions, 21
No.
oe,
hn D
Defendant/offender requests for court documents or docket sealing, 21
v. Jo
SA
in or
WithdrawingU refusing cooperation, 22
cited
Comparing the frequency of harm or threat in 2014 to 2013, 25
District steps to protect cooperating information, 25
Open-ended comments summary, 26
Conclusion, 29
Appendix A: Survey Invitation and Questionnaires, 33
Appendix B: Other Types of Harm or Threat to Defendants, 63
Appendix C: Other Locations at the Time of Harm or Threat to Defendants, 65
Appendix D: Other Sources to Identify Defendants, 67
Appendix E: Other Types of Harm or Threat to Witnesses, 77
Appendix F: Other Locations at the Time of Harm or Threat to Witnesses, 79
Appendix G: Other Sources to Identify Witnesses, 85
Appendix H: Other Steps to Protect Cooperation Information, 91
Appendix I: Open-Ended Comments, 93

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

iii

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 346 of 497

d on

nD

. Joh

cited

Av
in US

o.
oe, N

15-5

025

hive
9 arc

017
r 8, 2

Se

be
ptem

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 347 of 497

Acknowledgments
The authors thank the following individuals for their assistance with this project: Judge
Julie Robinson (D. Kan.), Judge Terry Hodges (M.D. Fla.), Judge Catherine Blake (D.
Md.), Judge Irene Keeley (N.D. W. Va.), and Judge Roger Titus (D. Md.); Matthew Roland, Geoff Cheshire, Cait Clarke, John Fitzgerald, Mark Miskovsky, Michelle Gardner,
Jane MacCracken, and Sean Marlaire (Administrative Office of the U.S. Courts); Jim Eaglin and David Rauma (Federal Judicial Center); and David Smith (Executive Office for
U.S. Attorneys).

d on

cited

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

v

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 348 of 497

d on

nD

. Joh

cited

Av
in US

o.
oe, N

15-5

025

hive
9 arc

017
r 8, 2

Se

be
ptem

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 349 of 497

Executive Summary
In March 2015, pursuant to an August 2014 request made to the Federal Judicial Center,
we surveyed federal district judges, U.S. Attorney’s Offices, federal defenders, Criminal
Justice Act (CJA) district panel representative’s offices, and chief probation and pretrial
services offices about harm or threat of harm to government cooperators. We summarize
the results of the survey below.
• Respondents were asked to report harm to defendants/offenders and witnesses in the
past three years for up to five cases. We limited the number of cases to five to prevent
overtaxing respondents.
• Of 1,371 recipients, 976 completed the survey—a response rate of 71%.
• Respondents reported a minimum of 571 instances of harm to defendants/offenders
and witnesses. Cases often involved harm to both defendants/offenders and witnesses.
• Among all types of harm or threat, respondents most often reported threats of physical harm to defendants/offenders or witnesses and to friends or family of defendants/offenders or witnesses.
• Defendants were most likely to be harmed or threatened when in some type of custody, while witnesses were either in pretrial detention or not in custody at the time of
harm or threat.
17
• Respondents frequently reported court documents or court proceedings0as the source
r 8, 2
mbe
for identifying cooperators.
epte
on S
ved affected the willingness of both
• Respondents reported that concerns of harm orcthreat
r hi
59 a
-502
defendants/offenders and witnesses 5 cooperate with the government in the past
o. 1 to
e, N
three years.
n Do
Joh
A v.
• Respondents generally agreed that harm to cooperators was a significant problem and
n US
i
cited
that more needed to be done, by the judiciary and/or the Bureau of Prisons, to protect
cooperators from harm.

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

1

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 350 of 497

Introduction
In August 2014, Judge Julie Robinson, then chair of the Court Administration and Case
Management Committee (CACM), asked the Federal Judicial Center (FJC) to conduct a
study to determine the number of offenders harmed or threatened with harm because
they cooperated, or were suspected of cooperating, with the government. The population
of concern included inmates who were post-conviction and in the custody of the Bureau
of Prisons (BOP) and identified as cooperators through the use of court documents.1 The
request, made on behalf of CACM, the Criminal Law Committee, and the Committee on
Defender Services, asked that we survey federal defenders, Criminal Justice Act (CJA)
panel attorneys, federal prosecutors, and probation officers and ask them to report the
number of offenders harmed or threatened with harm. We added district judges, witnesses, pretrial services offices, and pretrial detention to the study design as a result of early
discussions with staff from the Administrative Office of the U.S. Courts (AO staff).
After receiving feedback from the three requesting committees, the Executive Office
for U.S. Attorneys (EOUSA), and AO staff, the FJC designed a research study involving
Web surveys of the groups listed above. The design of the survey instrument included
asking the same basic questions of all groups, with additional questions targeted to specific populations based on which ones were most likely to have the information sought. The
need to target questions to specific groups resulted in multiple versions of the survey instrument (see below). The FJC worked closely with the CACM Privacy 2017
Subcommittee
r 8,
m e
(Subcommittee) to develop questionnaires that would acquire tthe bneeded information
ep e
on S
and be understood by recipients.
ved
rchi
59 a
The Subcommittee approved the questionnaires on February 24, 2015.2 The five
-502
15
groups surveyed included all chief ,district judges, all district judges (active and senior staNo.
Doe
n federal public defender and CJA district panel representah
tus), U.S. Attorney’s Offices,
v. Jo
USA
n chief probation and pretrial services offices. We obtained email lists for
tive’s offices, ed i
and
cit
each group from various sources, including staff of the AO and EOUSA, as well as electronically available sources. Several groups made efforts to alert respondents to the survey
before the initial mailing. In September 2014, Judge Julie Robinson, Judge Catherine
Blake, and Judge Irene Keeley, as chairs of their respective committees, sent an initial letter to all district judges alerting them to the problem of harm to cooperators. Several other groups made efforts to alert respondents to the study at the end of February 2015, days
before the survey went into the field. The EOUSA sent an email to all U.S. attorneys alerting them to the importance of their participation in the survey. The probation and pretrial services office of the AO included notification of the survey in a weekly email to all
probation and pretrial services chiefs. Judge Terry Hodges, the chair of CACM, sent a letter to all circuit chief judges asking for their help in alerting judges in their circuits to the
forthcoming survey invitation. Lastly, staff from the defender services office of the AO

1. Letter from Judge Julie A. Robinson, chair of the Committee on Court Administration and Case Management, to Judge Jeremy D. Fogel, director of the Federal Judicial Center, August 14, 2014.
2. We asked the initial set of questions, regarding cases involving harm and the details of that harm, of all
respondents, with slight variations in wording. For most respondents, we referred to “defendants and/or witnesses” while for chief probation and pretrial services offices we referred to “defendants/offenders and/or
witnesses.” We use these terms interchangeably in this report.

2

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 351 of 497

mentioned the survey to participants at their federal defender meeting prior to survey
distribution.

Survey Implementation and Administration
On March 3, 2015, we distributed the surveys electronically. A cover email, signed by the
chairs of the three requesting committees, explained the purpose of the survey and included the link for completing the survey.3 Two weeks later, we sent a reminder email to
everyone who had not completed the survey. We sent a final reminder email on March
31, 2015, to everyone who had not yet completed the survey. The survey closed on April
8, 2015, although anyone asking to submit a late response was permitted to do so until we
began drafting the report.4
A few issues pertaining to survey administration merit consideration before we present our analysis of the results. First, while chief district judges and district judges responded to the surveys for themselves, the other three groups of respondents reported for
their offices. The efforts to coordinate office-wide responses made completion of the survey more difficult for these groups. Moreover, the results for all judges represent the experience of individual judges over the past three years, while the results for the other groups
represent the experiences of an unknown, but substantially larger, number of people for
that same period. If more harm is reported by the office respondents, this should not be
considered an indication of anything more than inclusion of the responses 017more peoof
8, 2
ple. These differences in respondent groups should be kept in mind berthe results are dism as
epte
on S
cussed below.5
ved
chi
The overall response rates, shown below0in 9 ar 1, are quite strong. Chief probation
5 Table
-5 2
. 5
and pretrial services offices respondedoat1the highest rate, while district judges and U.S. Ate, N
n Do
torney’s Offices responded ohrelatively lower rates, but still at levels sufficient for analysis.
v. Jat
cited

A

in US

3. We provide a copy of this email and final versions of the survey in Appendix A. Because of an error in
the survey software provided by the vendor, only half of the district judges received the email invitation on
March 3. The remaining judges received the initial request for the survey on March 17, 2015. To ensure that
these judges had ample time to complete the survey, we extended the field period of the survey. Like all respondents, the judges in this second wave received a follow-up email if they did not complete the survey; we
sent the follow-up email on March 31, 2015. Thus, the first wave of judges received an invitation and two
reminders, while the second wave received the follow up and one reminder. This error did not substantially
affect the overall response rate of judges, as shown below.
4. A small number of respondents, either by preference or because of technical problems, requested to
complete the survey on paper. For those submitting paper responses, FJC staff electronically entered their
answers to all survey questions after the survey period ended.
5. While survey responses might be weighted in such circumstances, the results reported below are the
unweighted survey responses. We did not weight survey responses for two reasons. First, we did not sample
any of the respondent groups; we surveyed populations. Without a sampling frame, there is nothing by which
to weight survey responses—except for probability of responding. We cannot weight by the probability of
responding for a second reason: the respondent groups are not the same. Chief district judges and district
judges responded as individuals. All other respondent groups were responding for an entire office, representing an unknown number of respondents. Because we do not know how many people each response represents, we cannot weight the responses as such. For these reasons, and given that we report only the frequencies
with which responses occurred, it is not problematic to report unweighted survey results.

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

3

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 352 of 497

Table 1. Survey Response Rate
Questionnaires
Sent

Questionnaires
Completed

Response
Rate

Chief District Judges

94

77

82%

District Judges

929

611

66%

U.S. Attorney’s Offices

93

62

66%

Federal Defenders and CJA District
Panel Representative’s Offices

178

128

72%

Chief Probation and Pretrial Services
Offices

113

110

97%

1,407

988

70%

Respondents

Total

A second issue of survey administration affected the responses of judges more than the
other groups, though its impact was minimal. The list of district judges participating in the
survey included active and senior status judges. Some senior status judges are in inactive
status, while others are in active status, but no longer hear criminal cases as a matter of preference. Additionally, judges newly appointed to the bench may not have criminal cases on
their docket, especially if they served in the U.S. Attorney’s Office prior to their appointment. Thus, there are two groups of judges—those very new to the bench 2017 those very
and
r 8,
senior—for whom a survey of harm to cooperators in criminaleptembe not apply. To incases did
S
d on
clude the responses of these individuals would bias the inumber of instances of harm reportch ve
ar
ed toward zero (they know of no instances -of0harm, but that is because they have no crimi259
55
. 1excluded these judges from the survey population
nal cases). While, ideally, we would, have
No
Doe
ohn
at the outset, such information was not systematically available on all judges, and we were
.J
SA v
not able to dodso. U
e in After receiving the survey invitation, a number of judges contacted the
cit
FJC regarding their experience with criminal cases, either because they were new to the
bench or they were in senior status (inactive or active but not taking criminal cases). We
gave judges who contacted the FJC the option to complete the survey if they chose.6 We
closed the surveys of judges who opted against completing the survey for these reasons and
removed them from the reported results. These exclusions bring the total response rate for
district judges to 599 completed surveys out of a possible 899 district judges, or 67% of potential respondents. Table 2 shows the final response rates, after excluding those judges who
notified us they were ineligible to answer the questionnaire.

6. A small number of additional judges were unable to complete the survey during the allotted time for
other reasons, including poor health and international travel. We also removed these judges from the survey
results reported below. Undoubtedly, more newly appointed and senior status judges could have been excluded from the survey totals. If the judges did not contact the FJC, however, there is no way for us to know this
information.

4

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 353 of 497

Table 2. Revised Survey Response Rate
Questionnaires
Sent

Questionnaires
Completed

Response
Rate

Chief District Judges

94

77

82%

District Judges

899

599

67%

U.S. Attorney’s Offices

93

62

66%

Federal Defenders and CJA District
Panel Representative’s Offices

178

128

72%

Chief Probation and Pretrial Services
Offices

113

110

97%

1,377

976

71%

Respondents

Total

We addressed a third issue of survey administration, related to the first, after closing
the survey on April 8, 2015. For some survey respondents (but only in groups coordinating an office response) duplicate answers appeared in the data. Typically duplicates occurred because a respondent began answering the survey and then thought a designee,
such as the criminal division chief in a district office of the U.S. attorneys, would be better
017
suited to answer the questions. In all instances of duplicate answers, respondents notified
r 8, 2
mbe the designee. We
the FJC of the issue and asked for a second survey link to be Septe to
emailed
on
compared the two responses to ensure no loss of data ioccurred with the removal of duplived
h
9 arc
cate (partial) answers. One response, whether 5for an individual or office, remains in the
-502
o. 15
data.
e, N
n Do
Joh
Despite these threevissues, we find the survey results to be robust and reliable. Given
A .
n USof recalling the detailed events of the last three years, the limited
the difficultited i
c nature
timeframe for completing the survey, and the required efforts to coordinate a single office-wide response for the non-judge groups, a 71% response rate is high. Undoubtedly,
the advance efforts to alert recipients to the survey, the follow-up reminders, and the salience of the topic contributed to so many people completing the survey. The high response
rate increases our confidence in the results of the survey, reported below.
The geographic distribution of the survey responses further increases our confidence
in the results. At least one judge from each of the 94 judicial districts responded to the
survey, and 61% of the districts had responses from all groups. Defender and panel representative’s offices responded from 83 different districts. The responses of probation and
pretrial services offices represent the experiences of 92 different judicial districts. U.S. Attorney’s Office responses were distributed across 62 judicial districts. Overall, we are confident the responses to the survey represent the national picture.
We should note one final issue affecting the reporting of the survey responses. Judges,
defenders, prosecutors, probation officers, and pretrial services officers all see the same
defendants/offenders and witnesses at different times. The instances of harm reported
below undoubtedly include responses that detail the events in the same case from the perspectives of the judge, the attorneys, and the probation officers. Totaling the instances of
harm across these groups risks over-counting the same event multiple times. Because we
have no way of knowing if all groups are reporting the same events from different per-

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

5

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 354 of 497

spectives, we cannot remove any duplicate reporting of events. Instead, the results below
report the range in instances of harm.

Analysis of Results
The first question on the survey asked respondents to report whether they knew of an instance in the past three years of harm or threat to defendants/offenders or witnesses (or
their friends or family) because of the defendant/offender’s or witness’s cooperation with
the government. If the respondent answered yes, we asked additional questions about the
details of the harm or threat (described below). After the respondent answered the detailed questions on the first case, the initial screening question, followed by the detailed
questions, repeated for up to five cases.
The results in Figure 1 show the percentage of respondents in each group reporting
harm on each of up to five cases. The percentages reported for cases two through five
were calculated for the subgroup that reported harm in the prior case. Ninety-seven percent of the 62 responding U.S. Attorney’s Offices reported harm in a first case, while 49%
of the 599 responding judges, 68% of defender offices, and 73% of probation offices reported a first case with harm.7 Of the U.S. Attorney’s Offices reporting harm in a first
case, 95% reported harm in a second case as well. Overall, as a percentage of respondents,
U.S. Attorney’s Offices reported harm with greater frequency than any other group. In
fact, more than 50% of U.S. Attorneys Offices responding to the survey reported harm in
17
8, 20
all five cases. Only 3% of U.S. Attorney’s Offices reported no instancesrof harm or threat,
mbe
epte
o
whereas 27% of probation offices, 32% of defender offices, n S 51% of the judges reportved and
hi
9 arc
ed no instances of harm or threat.
5025
-

o. 15

A v.

US
ed in

e, N
n Do

Joh

cit

7. Twenty-nine of the judges reporting no instances of harm stated later in the survey that they knew of
no instances of harm because they were very new to the bench or in senior status and no longer hearing criminal cases. If we removed these judges from the total, as we did with the judges who alerted us to their status
prior to completing the survey, the percentage of judges reporting on a first case of harm would be just over
50%.

6

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 355 of 497

Figure 1. Frequency of Harm or Threat Reported, by Respondent Group8

d on

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Se

025

15-5

After reporting an instancehn Dharm, respondents then described whether the harm or
of
Jo
threat was directed SA v.
at defendants/offenders or witnesses (or their family or friends). A
in U
c ted
respondent icould choose both defendants/offenders and witnesses, if both were involved
in the same case. Figure 2 shows the frequency with which defendants/offenders and witnesses were the subject of harm across all reported incidents. Respondents often reported
harm to both defendants/offenders and witnesses in the same case.

8. Figures in this report, including Figure 1, show the frequency of an event by respondent groups, both
as a percentage of the group and a number of reported events. The bars in Figure 1 show the frequency of
harm as a percentage of the group, while the number on the bar is the actual number of instances of harm
reported. For purposes of reporting, chief district judges and district judges are combined into a single group
for all tables with one exception: Table 10, which reports district steps to protect cooperation information,
includes the responses of chief district judges only, as they were the only group to receive that question.

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

7

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 356 of 497

Figure 2. Frequency of Harm or Threat to Defendants and Witnesses, by Respondent Group

017
r 8, 2

be
ptem

e

Taking these facts together, the results of the survey show n S the 976 questionnaire red o that
hive
9 ar
spondents reported at least 571 instances of2harmcor threat to as many as 381 defend5
-50
ants/offenders and 292 witnesses e, No. 15 three years. These numbers, which are those
in the past
o
hn D
reported by the judicial .respondents, are the minimum number of instances of harm or
v Jo
A
threat. We assume that some number of instances reported by the other three groups of
in US
cited
respondents are not duplicates of the instances reported by the judges and thus the actual
incidence of harm and threat is higher.
Both the frequency of occurrence and the number of people harmed or threatened in
the past three years are sufficient to provide details about the nature of threats and harm
(reported below). While respondents did not always have complete information on the
events that occurred, they provided a substantial amount of detailed information on the
type of harm, the location of the individual at the time harm occurred, and the source for
identifying cooperators. We report summaries of the details for defendants/offenders and
witnesses separately below. The results are aggregated across all cases, though we would
expect that the details of the first case are somewhat more cognitively available to the respondent (as it is the first case occurring to them) than the details of the fifth case. Of
course, availability bias is more likely to be a problem for individual judicial respondents
than other groups who provided an office response.

Harm or Threat to Defendants/Offenders
When respondents reported an instance of harm or threat to a defendant/offender, we
asked them to detail the type of harm or threat that occurred. These details included the
type of harm or threat, the location of the defendant/offender at the time of harm or
threat, and the source used to identify the defendant/offender as a cooperator.

8

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 357 of 497

Types of harm or threat to defendants/offenders
Respondents could select as many categories as described the case in question.9 If, for example, a defendant/offender was threatened with physical harm and then beaten, the respondent could check the boxes for both threats of physical harm and actual physical
harm. Figure 3 reports all threats and harm to defendants/offenders reported by all respondent groups for all instances in the past three years. While the bar represents the frequency of the answer as a percentage of the group, the number on the bar is the actual
number of responses in that category. Respondents most often reported threats of physical harm to the defendant/offender and to the friends and family of the defendant/offender. Over 80% of the incidents reported involved threats of physical harm, a
minimum number of 339 instances. The minimum number of instances of actual harm
(murder and other physical harm) is 133.
Those selecting the “Other” category detailed a variety of types of harm to the defend10
ant. While some of the incidents could be classified into the existing categories, two additional categories emerged from the “Other” responses: Internet/community/general
threats and property damage. Internet/community/general threats included responses
such as “told family members to put his name on rats.com,” “flyers posted in his neighborhood,” “[d]efendant’s status as a cooperator was put on the internet,” and “[n]ame
posted on Top Snitches Facebook page.” Property damage included shooting at the cars
or houses of defendants, or harm to pets. We report the remaining details, which are too
2017
varied to categorize, in Appendix B.
er 8,
hiv

mb

epte

nS
ed o

Table 3. Categories of “Other” Harm or Threat 9 arc
025 to Defendants Specified by Respondents
-5

o. 15

,N
Do
Category of “Other” Harm or Threate
ohn
v. J
USA
Internet/Community/General Threats
ed in
cit
Existing Categories

Number of Responses
16
9

Property Damage

9

Other

5

9. It is for this reason that the types of harm or threat reported are higher than the number of defendants
harmed or threatened.
10. When the questionnaire gave respondents the option to choose “Other,” respondents were asked to
specify what they meant. For every question where respondents could select “Other,” we found instances of
respondents selecting other without specifying what they meant, or writing in a specification without having
chosen “Other.” To prevent loss of information, the Appendices report all specified comments, regardless of
whether “Other” was selected as a category or not. For each of the “Other” options, we made an initial attempt to categorize these comments. We report this categorization in the tables in the text, while the items
coded into each category can be found in the Appendices. All specifications and open-ended responses reported in the Appendices were lightly edited for clarity and redacted to prevent identifying either the case or
the respondent.

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

9

Figure 3. Frequency of the Type of Harm or Threat Directed at Defendants, by Respondent Group

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 358 of 497

d on

cited

10

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 359 of 497

Location of the defendant/offender at the time of harm or threat
After reporting the details of harm or threat, respondents identified the location of the
defendant/offender at the time the harm or threat occurred. Once again, because respondents reported multiple instances of harm or threat for each case, more than one location could be chosen. Figure 4 reports the number and percentage of respondents reporting each location across all respondents and all cases. Respondents most often reported that defendants/offenders were harmed or threatened while in pretrial detention—a
minimum of 207 instances—followed by pretrial release and incarceration—a minimum
of 125 instances. Chief probation and pretrial services offices reported the location of the
defendant/offender as “on probation” more often than other groups, which is not surprising given their contact with defendants/offenders at that time. Overall, as a percentage,
respondents reported a substantial amount of harm occurring while defendants were in
custody of some kind.
Figure 4. Frequency of Reported Location of Defendant at the Time of Harm or Threat, by
Respondent Group

d on

cited

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

11

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 360 of 497

Respondents also specified “Other” locations for the defendant/offender at the time of
harm or threat. The “Other” response provided most often was that the defendant/
offender was not in any form of custody. The second most common response included
defendants/offenders who were in some other form of custody that we did not specify. We
report other specified options provided by respondents in Appendix C.
Table 4. Categories of “Other” Defendant Locations Specified by Respondents
Category of “Other” Locations

Number of Responses

Not in Custody of Any Kind

13

Other Forms of Custody

10

Other

7

Protective custody
One set of questions, only for those reporting harm to defendants/offenders, asked respondents if the defendant/offender requested or received protective custody or placement in a special housing unit (SHU). Figure 5 shows the number of respondents reporting that defendants/offenders requested protective custody and the number receiving it.
Because respondents may know of defendants/offenders requesting but not2receiving pro017
r 8,
tective custody (or receiving it without knowing if they requestedeit)bwe asked both quesm e
ept
on S
tions of all respondents reporting harm to defendants/offenders. Respondents knew of a
ved
rchi
minimum of 128 instances of defendants/offenders requesting protective custody and a
59 a
-502
o. 15
minimum of 136 instances of defendants/offenders receiving protective custody.
e, N
o

hn D

. Jo
SA v

nU

i
Figure 5. Frequency of Defendants Requesting and Receiving Protective Custody, by
cited
Respondent Group

Sources for identifying defendants/offenders
We asked respondents to report any court documents used to identify the defendant/offender as a cooperator. Respondents could report multiple sources. Figure 6 shows

12

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 361 of 497

the percentage and number of respondents reporting the use of each type of document for
identifying the defendant/offender as a cooperator. The plea agreement or plea supplement was the document most frequently used to identify a defendant/offender as a cooperator—a minimum of 135 instances—with a 5K1.1 motion used nearly as often—a minimum of 111 instances.
Figure 6. Frequency of the Use of Court Documents to Identify Defendant Cooperators, by
Respondent Group

d on

cited

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Regarding the “Other” sources by which cooperators were identified, a single category
emerged. Respondents frequently reported use of other court documents or proceedings,
especially discovery, testimony, and inferences from docket activity (such as sealed entries
or gaps in docket sequence numbers) to identify defendant/offender cooperators. Appendix D details the exact sources of information while Table 5 shows the categorization of
those details.

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

13

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 362 of 497

Table 5. Categories of “Other” Sources Used to Identify Defendant Cooperators
Specified by Respondents
Categories of “Other” Sources

Number of Responses

Other Court Documents/Proceedings

165

Talking to Agents/Debriefing/Government Disclosure

14

Codefendant/Known

14

Suspicion

12

Other

11

News Reports

5

Additional instances of harm or threat to defendants/offenders
To avoid overtaxing respondents with an excessively long questionnaire, we capped the
number of cases on which respondents could provide detailed information at five. We did
not, however, want the total amount of harm reported by the survey to be artificially
capped by this number. To provide an indication of how much additional harm occurred
in the past three years, we asked respondents reporting on a fifth case two additional
questions, one regarding defendants and one regarding witnesses (discussed below). If the
fifth case involved harm to a defendant/offender, we asked the following: “Not including
017
the defendants regarding whom you’ve provided information in thiser 8, 2 how many
survey,
mb
ep e
more defendants from your cases have you learned were harmed tor threatened in the past
on S
ved to enter a whole number, berchi
three years?” For this question, we required respondents
59 a
11
-502
tween 0 and 100.
o. 15
e, N
Figure 7 shows the number of defendants/offenders reported by all groups. If we sum
n Do
Joh
A .
the numbers provided v all respondents, and assume there were no duplicate answers
n US by
i
cited
across groups, we find a maximum of 579 more defendants/offenders harmed or threatened with harm in the past three years. The number of additional defendants/offenders
harmed ranged from a low of 21 (reported by chief probation and pretrial services offices)
to a high of 236 additional defendants/offenders (reported by defender and panel representative’s offices). While few respondents reported information on a fifth case, those
who did were often reporting for an office. The office responses were more likely to report
100 or more additional defendants/offenders harmed in the past three years.

11. Initial discussions within the FJC and with AO staff suggested that capping this number at 100 would
yield more reliable data. A handful of respondents found this cap to be a source of frustration and chose to
report their frustration, as well as a number over 100, in their open-ended responses (see below).

14

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 363 of 497

Figure 7. Frequency of Additional Instances of Harm or Threat to Defendants, by
Respondent Group

d on

cited

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Summary of results on harm or threat to defendants/offenders
To summarize the findings regarding harm to defendants/offenders, respondents reported a minimum of 381 instances of harm or threat directed at defendants/offenders for
their cooperation (or perceived cooperation) with the federal government over the past
three years (Figure 2). A minimum of an additional 236 defendants/offenders experienced
harm or threat, though we have no additional information on the circumstances of these
events (Figure 7). When the harm or threat occurred, the defendant/offender was in some
form of custody, including pretrial detention or incarceration. In many instances defendants/offenders were identified as cooperators by use of court documents, especially plea
agreements or plea supplements, 5K1.1 motions, and docketing activity such as the presence of sealed entries and gaps in docket sequence numbers (Figure 6 and Table 5).

Harm or Threat to Witnesses
In addition to reporting information on the harm to defendants/offenders for cooperating with the government, the survey asked respondents to report on harm to witnesses.
While the questions are largely the same as those for defendant/offender cooperators, the
results are somewhat different. Overall, detailed information on harm to witnesses appears to be less readily available to respondents. Nonetheless, there is still sufficient information for examination.

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

15

Figure 8. Frequency of the Type of Harm or Threat Directed at Witnesses, by Respondent Group

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 364 of 497

16

d on

cited

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 365 of 497

Types of harm or threat to witnesses
Figure 8 reports the types of harm or threat directed at witnesses thought to be cooperating with the government. Similar to defendants/offenders, the most common types of
harm are threats of physical harm, threats to friends and family, and actual physical harm.
At minimum, in the three-year period, respondents reported 229 instances where a witness was threatened with physical harm, 148 instances involved threats to a friend or
family member, and 88 instances involving actual physical harm (murder or physical
harm other than murder). Because some of the instances reported by defender, probation,
and U.S. Attorney’s Offices are almost certainly not duplicates of the instances reported
by judges, the actual number of instances of harm or threat of harm to witnesses was likely higher.
Relatively few respondents chose “Other” as the type of harm or threat directed at
witnesses. We report the details of these other types of harm in Appendix E, including
attempted murder, contracting to kill a witness, general threats and harassment, and
property damage. Table 6 shows the categorization of the “Other” categories.
Table 6. Categories of “Other” Harm or Threat to Witnesses Specified by Respondents
“Other” Categories of Harm or Threat

Number of Responses

Other

15

Internet/Community/General Threats
Property Damage
Attempted Murder

o.
oe, N

025

15-5

hn D

. Jo
SA v

8 Se
d on
4

hive
9 arc

Existing CategoriesU
in
cited

017
r 8, 2

be
ptem

3
2

Location of witnesses at the time of harm or threat
Figure 9 shows the reported location of witnesses at the time the harm or threat occurred.
Here we see a number of differences from the locations listed for the defendants. Witnesses were likely to be in pretrial detention (often because they are uncharged coconspirators
or codefendants—as reported in the open-ended comments) or on pretrial release. At a
minimum, 85 incidents occurred when the witness was in pretrial detention and 63 instances occurred when the witness was on pretrial release. The next most common locations for witnesses were “Other”—a minimum of 55 instances—and incarceration—a
minimum of 49 instances. As Table 7 shows, the “Other” location for witnesses was almost always not in custody—i.e., they were at home, at work, or in their community—
because they were uncharged. We report the complete list of locations in Appendix F. We
should note that many respondents were unable to report the location of witnesses at the
time the harm or threat occurred.

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

17

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 366 of 497

Figure 9. Frequency of Reported Location of Witness at the Time of Harm or Threat, by
Respondent Group

d on

cited

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Table 7. Categories of “Other” Witness Locations Specified by Respondents
Categories of “Other” Locations

Number of Responses

Not in Custody of Any Kind

130

Other

21

Existing Category

4

Sources for identifying witnesses
The sources for identifying a cooperating witness also show a different pattern than we
reported for the defendants/offenders. While respondents reported that cooperating defendants/offenders were identified in 5K1.1 motions or plea agreements, witness identification occurred most often through “Other” sources, discussed in more detail below. Figure 10 reports the sources used to identify cooperating witnesses and shows that at a minimum witnesses were identified through “Other” sources 59 times. Plea agreements or
plea supplements were used to identify cooperating witnesses in 54 instances.

18

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 367 of 497

Figure 10. Frequency of the Use of Court Documents to Identify Witness Cooperators, by
Respondent Group

d on

cited

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Similar to defendants/offenders, respondents often reported witnesses being identified
through other court documents, especially testimony, witness lists, and during discovery.
Table 8 reports the categorization of the specified responses, which are provided in Appendix G.
Table 8. Categories of “Other” Sources Used to Identify Witness Cooperators Specified
by Respondents
Categories of “Other” Sources

Number of Responses

Other Court Documents/Proceedings

135

Codefendants/Known

15

Other

12

Suspicion

7

Talking to Agents/Debriefs/Government Disclosure

2

News

1

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

19

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 368 of 497

Additional instances of harm or threat to witnesses
We asked respondents reporting information about a fifth case of harm to witnesses to
report any additional harm to witnesses from the past three years. Once again, we required the respondents to choose a number between 0 and 100. Figure 11 shows the reported number of witnesses. If we total the number of witnesses reportedly harmed, again
assuming no duplicate responses, we find a maximum of 365 additional witnesses threatened or harmed in the past three years. U.S. Attorney’s Offices reported an additional 301
instances of harm or threat to witnesses, while judges reported an additional 64 instances.
As with defendants/offenders, while few respondents reported information on a fifth case,
those who did were often reporting for an office. The office responses were more likely to
report higher numbers of additional witnesses than individual respondents. It is worth
noting, however, that no respondents from probation and pretrial services offices or federal defender offices reported additional instances of harm.
Figure 11. Frequency of Additional Instances of Harm or Threat to Witnesses

d on

cited

20

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 369 of 497

Summary of results on harm or threat to witnesses
While respondents reported harm to witnesses less frequently than they reported harm to
defendants/offenders, a minimum of 292 instances of harm or threat to witnesses occurred in the past three years (Figure 8). An additional 301 instances of harm or threat
occurred, but we cannot report the details of these additional events (Figure 11). Witnesses were more likely than defendants/offenders to be out of custody at the time they were
harmed, though many were also in custody as codefendants or uncharged coconspirators
(Figure 9). Identification of witnesses often occurred through court documents, specifically witness lists, through testimony, and during discovery (Figure 10).

Additional Questions
In addition to questions about the frequency of harm to defendants/offenders and witnesses, the questionnaire included other items designed to shed light on harm to cooperators. We asked those questions only of the relevant respondent groups.
Defendant/offender requests for court documents or docket sealing
We asked federal defenders and CJA district panel representative’s offices about the frequency with which their clients requested court documents to prove they were not a cooperator, and the frequency with which their clients asked them to seal all or part of the
17
CM/ECF docket. For both questions, we asked respondents to enter benumber between 0
a r 8, 20
m
ep
and 100. The results in Figures 12 and 13 summarize the numberte federal defenders and
on S of
ved
CJA district panel representatives who reportedarchi requests, by number of defendsuch
59
-5 the
ant/offenders who made such requests.1As 02 results demonstrate, many more defense
5
No.
attorneys report requests for Doe, documents than requests to seal all or part of a
n court
Joh
CM/ECF docket. USA v. we total the number of defendants/offenders requesting court
When
n
i
c ed
documents, itwe find 1,941 requests, likely a low number given the frequency with which
defense counsel reported “100 defendants” (the maximum permitted by the question
format). Defense counsel also reported a total of 704 defendants/offenders requesting
sealing all or part of their CM/ECF dockets.

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

21

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 370 of 497

Figure 12. Frequency of Requests for Court Documents

d on

o.
oe, N

hive
9 arc

017
r 8, 2

Se

be
ptem

025

15-5

D
Figure 13. Frequency of Request for Docketing Sealing
John
in
cited

22

USA

v.

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 371 of 497

Withdrawing or refusing cooperation
Both defense and prosecuting attorneys answered two questions about the frequency with
which, in the past three years, defendants/offenders and witnesses withdrew offers of cooperation, or refused cooperation, because of actual or threatened harm. Once again, we asked
respondents to report a number between 0 and 100. Figures 14 and 15 report the number of
respondents who reported defendant/offender withdrawal or refusal of cooperation, and
Figures 16 and 17 report the same information for witnesses. The number of defendants/offenders withdrawing offers ranged from a low of 197 (reported by U.S. Attorney’s
Offices) to a high of 247 (reported by defenders and panel representative’s offices). The
number of defendants/offenders refusing cooperation ranged from a low of 527 (U.S. Attorney’s Offices) to a high of 758 (defenders and panel representative’s offices). Respondents reported the number of witnesses withdrawing offers of cooperation less often. U.S.
Attorney’s Offices reported 174 withdrawals while defender and panel representative’s offices reported 192 instances of witnesses withdrawing offers of cooperation. Respondents reported witnesses refusing to cooperate more frequently than withdrawing offers. The number of witnesses refusing cooperation ranged from a low of 364 instances (defender and
panel representative’s offices) to a high of 467 instances (U.S. Attorney’s Offices).
Figure 14. Frequency of Defendants Withdrawing Cooperation
d on

cited

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

23

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 372 of 497

Figure 15. Frequency of Defendants Refusing Cooperation

d on

hive
9 arc

017
r 8, 2

Se

be
ptem

025
15-5
No.
Figure 16. Frequency of Witnesses,Withdrawing Cooperation
oe
hn D
v. Jo
A
in US
cited

24

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 373 of 497

Figure 17. Frequency of Witnesses Refusing Cooperation

d on

hive
9 arc

017
r 8, 2

be
ptem

Se

025
15-5
No.
Comparing the frequency of harm e, threat in 2014 to 2013
o or
hn D
v. Jo groups to compare the frequency with which defendWe asked all respondent
A
in US
ants/offendersdand witnesses were harmed in 2014 compared to 2013. Table 9 reports the
cite

results, but they should be interpreted with caution. The vast majority of respondents,
across all groups, were unable to provide a comparison, choosing “I don’t know” over all
other options. Of the substantive categories, respondents most often reported the frequency of harm being about the same in 2014 compared with 2013. Given that respondents clearly did not have trouble remembering instances of harm, or the details of such
harm, their inability to compare two years is more likely the result of the wording of the
question or the difficulty of the task (for a question at the end of the survey) than a lack of
harm one year to the next. The results should be read with these caveats in mind.
Table 9. Comparing the Frequency of Harm or Threat, 2014 to 2013, by Group
Higher in
2014

About the
Same in
2014

Lower in
2014

I don’t
know/missing

Total

Judges

32

147

15

480

674

Defenders/Panel
Representative’s Offices

10

44

5

67

126

U.S. Attorney’s Offices

14

32

3

13

62

Chief Probation and
Pretrial Services Offices

11

32

8

58

109

Respondents

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

25

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 374 of 497

District steps to protect cooperating information
One final question on the survey, asked only of chief district judges, attempted to uncover
actions taken by districts to protect cooperator information. The list of options provided
(shown below) allowed respondents to choose multiple items. Table 10 shows the frequency with which chief district judges reported their courts taking these steps. No one
chose “none of the above” and relatively few chose to specify an “Other” option, suggesting the categories covered the majority of steps taken by districts to protect information
about cooperators.
Clearly the most common action taken by the district courts has been, at the request
of parties, to seal documents containing cooperation information; sixty-six of the seventyseven chief district judges who completed the questionnaire said their district had taken
this action. Nearly half of the respondents also reported that their district seals, sua sponte,
documents containing cooperation information and/or makes criminal documents appear identically on CM/ECF to obscure cooperation information. The other specific actions are less frequently used, as shown in Table 10. (We report the specified “Other” options in Appendix H.)
Table 10. District Efforts to Protect Cooperation Information
Method of Protecting Cooperation Information

Frequency of
017
Selection
r 8, 2
be

m

e
Sept
Making criminal cases appear identically on CM/ECF to obscureon
ved
chi
cooperation information (such as requiring filing sealedrsupplements
59 a
-502
with a plea agreement)
o. 15
e, N
n Do
Joh
Sealing documents containing cooperation information sua sponte
A v.
n US
i
cited
Sealing documents containing cooperation information at the request of
the parties

33

37
66

Ordering parties to redact cooperation information from documents

19

Restricting remote access of documents containing cooperation
information

29

Allowing public access of documents containing cooperation
information only in the courthouse or clerk’s office

9

Removing documents containing cooperation information from public
files

19

Requiring the entry of documents containing cooperation to be private
entries in CM/ECF

21

Other (please specify) ____________________

7

None of the above

0

26

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 375 of 497

Open-ended comments summary
At the end of the survey, respondents were offered an opportunity to provide additional
comments. Over a third of all respondents chose to make additional comments, and they
covered a wide range of topics. We read the content of these comments and found we
could group them into twelve different categories. Comments that were especially lengthy
or detailed were coded into multiple categories, with no comment falling into more than
six categories. Table 11 below shows the frequency of comments in each category. For
those categories where comments could take a negative tone, instead of the positive or
affirmative tone implied by the category, the number of negative comments is reported
below the main category heading.
Table 11. Open-Ended Comment Coding
Coding of Comments

Frequency

General comment about the frequency of harm

148

Harm is not frequent

15

General comments about the sources to identify cooperator

106

Court documents were not the source

4

Details about a specific incident
Nothing to report
Procedures for protecting defendants

d on

hive
9 arc

96 7
01
r 8, 2
85

be
ptem

Se

025
15-5
No.
General comment about harm in prison/prison culture
oe,
hn D
v.12Jo
Takes issue with the USA
survey
in
cited
Policy comments
Concerns about a national judiciary policy
Comments about refusal to cooperate out of fear
Refusals out of fear do not occur

81
76
33
29
7
27
1

Procedures to protect witnesses

15

“Missing”

2

Procedures for protecting juries

1

Some categories required no additional coding for tone or nuance. For example, if a respondent provided additional information about an already reported event, or chose to
add information about additional instances of harm, the comment was coded into the
category for “details about a specific incident.” Likewise, when respondents reported spe-

12. While most of the survey comments reported more information about the scope of harm or the policy implications of harm or threat, some respondents used the open-ended comments to take issue with the
use of a survey to determine the scope of the problem, or to complain about the upper bound on the number
of people they could report. Overall, these comments could be categorized as suggesting that the harm occurring is more than they were able to report in the survey.

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

27

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 376 of 497

cific procedures for protecting defendants, juries, or witnesses, we coded the comment
into those categories. The comments falling into the four categories of details about incidents, or procedures to protect defendants, witnesses, or juries, provided interesting information about what has happened in the past, and how districts have worked to overcome these problems. Typically the procedures to protect defendants or witnesses included sealing, either as a general principle or by local rule, or obscuring docket entries, including substituting revised plea agreements for the original, or discussing cooperation in
a court proceeding rather than through written motions.
Other categories, however, required some additional clarification. Comments about
the frequency of harm, for example, could either suggest that harm or threats were frequent or infrequent. Of the 148 comments about the frequency of threat or harm in the
district, only 15 suggested that harm or threats were infrequent (eight judges, five defenders, one U.S. Attorney’s Office, and one chief probation and pretrial services office). At
times the respondents noted that harm was infrequent because of recent steps taken by
the district to better protect cooperation information. Other times, respondents were noting that harm to a specific group, such as witnesses, was infrequent. Lastly, respondents
also noted they did not have or were not likely to be told of such threats, so they thought
such instances were infrequent. Of course, the 85 respondents who specifically said they
had nothing to report, because they didn’t have criminal cases, could be included with
other respondents who said harm was infrequent based on their experience. Nonetheless,
even after combining “nothing to report” with the 15 respondents who 2017 harm was
said
r 8,
infrequent, the tone of the comments overall would still suggest respondents found harm
mbe
epte
on S
to be frequent rather than infrequent.
ved
r hi
The remaining 133 respondents who said2harmcwas frequent used words such as “of59 a
-50
ten,” “every,” “many,” “most,” “all,” o. 1“the vast majority,” to describe how often coopor 5
e, N
n Do or implicitly, with harm or were victims of harm. Sevh
erators were threatened,. explicitly
v Jo
eral of these ed in USA noted that the problems of threat and harm to cooperators are
respondents
cit
especially pronounced in drug and gang cases, as well as in certain geographic communities. Overall, when respondents were noting the frequency with which harm or threat occurred, they found it to be pervasive.
Comments about the sources used to identify cooperators typically provided information about which court documents were most likely to identify a cooperator, including
those most frequently demanded in federal prisons when a new inmate joins a facility
(discussed below). In fact, only 4 of 106 comments about sources used to identify cooperators explicitly said that court documents or docket activity were not used (three chief
probation and pretrial services offices and one judge). The remaining 102 comments either mentioned a court document (the most common outcome) or were neutral with respect to court documents but focused on another source to identify a cooperator, typically the details of a specific incident. Those comments that did not explicitly mention court
documents focused instead on other sources for identifying cooperators including “social
media,” “rats.com,” “YouTube,” or more generally “the internet.” Of course, talk within a
community, newspapers, movement in and out of the prison, and prior knowledge of the
cooperator were also mentioned as sources of identification.
A final category of comments meriting further consideration was policy comments
made by respondents. The twenty-nine respondents offering specific policy comments
covered two dimensions. First are those who commented on whether a national policy
was necessary or not. Seven of the twenty-nine respondents made comments about a na-

28

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 377 of 497

tional judiciary policy that could be considered negative in tone (four judges and three
defenders). Included in this group were respondents’ explicitly negative comments, such
as “the need for blanket rules . . . is a canard,” as well as more cautionary comments, such
as “be sensitive to the public right to know.” Other policy comments were more positive,
suggesting a need for policy, though four suggested that this was an issue for the Department of Justice (DOJ) or, more specifically, the Bureau of Prisons (BOP) to address (three
judges and one chief probation and pretrial services office). For instance, one respondent
noted that the DOJ and the U.S. Attorney’s Office do not consider protection of cooperators to be a priority, but they should. One comment noted that past efforts to work with
BOP on this issue had not been successful. Seventeen other respondents suggested there
was a need for national policy, made by the judiciary, or that the judiciary should do
“something” about the issue. One judicial respondent’s comment combined both elements, suggesting that this was a DOJ/BOP issue about which the judiciary needed to be
concerned and take action.
Overall, while specific policy comments were rare, relative to the other types of comments provided, their tone could be categorized as suggesting a need for something to be
done to protect cooperators. This is especially true if we consider all the comments as a
group. In addition to the policy comments noted above, seventy-six respondents spoke
about life in prison for cooperators, or prison culture in general, clearly noting a problem
where there is an expectation of harm in prison for those who do cooperate or are unable
to prove that they did not. These respondents consistently told a story of0new inmates
7
,2 1
reporting to a specific individual (the “shot caller”) in the prison mber being required to
and 8
epte
o S
provide their “paperwork” within a few weeks of coming tonprison. If the inmates for any
ved
rchi
reason were unable to prove they were not a0cooperator, they were told to request protec59 a
-5 2
tive custody. These concerns prompted15
o. inmates to request their docket information, or
e, N
n Do
(in the case of those who Joh cooperate) go so far as to request fake documents to protect
did
v.
them in prison. in USA
cited
Moreover, the general comments about the frequency of harm more often suggested
that threat or harm was a frequent occurrence, and this was true even after including in
our count those respondents who said they had nothing to report. Further, the steps reported for protecting defendants, witnesses, and (in one case) juries, suggest that the concerns about harm are real enough for districts to make affirmative steps to better protect
cooperators from harm. Despite these efforts, respondents noted that there continue to be
problems. The fear of being harmed or threatened is affecting the willingness of defendants and witnesses to cooperate, a comment made by 26 respondents (with one defender/panel representative’s office as the exception). Taken as a whole, but certainly not
unanimously, the open-ended comments support the results reported above: harm is occurring, court documents are often the sources for identifying cooperators, and this is a
problem for the criminal justice system.

Conclusion
To answer the question of how often cooperators, both defendants/offenders and witnesses,
were harmed, we surveyed federal district judges, U.S. Attorney’s Offices, the offices of the
federal defenders and CJA district panel representatives, and chief probation and pretrial
services offices. With a 71% response rate, and representation from all 94 judicial districts,
we are confident that the reported results are representative of the harm experienced by

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

29

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 378 of 497

witnesses and defendants/offenders in the past three years. These groups reported a substantial amount of harm. Overall, respondents reported a minimum of 571 cases involving
harm or threat. These instances of harm involved a minimum of 381 defendants/offenders
and 292 witnesses; often, both were involved in the same case. Respondents reported a minimum of an additional 236 defendants/offenders and 301 witnesses harmed, but limits
placed on the survey prevent us from knowing the details of such harm.
Respondents reported that the nature of harm or threat to defendants/offenders and
witnesses was largely the same. Threats of physical harm and threats to friends or family
occurred most frequently, and many respondents reported multiple types of threat made
against the same defendant/offender or witness. It is worth noting, however, that defendants/offenders were more likely to be subject to multiple types of threat than witnesses were,
though this difference could be the result of the availability of the information to our respondent groups.
We found, not surprisingly, that the location differed for defendants/offenders and witnesses when harmed or threatened. Defendants were most often in some form of custody
(pretrial detention, pretrial release, or incarceration) while witnesses were not likely to be in
custody, or, if they were in custody, they were in pretrial detention as a codefendant.
The sources for identifying cooperation by defendants/offenders and witnesses also differed somewhat, according to our respondents. While court documents and proceedings
were overwhelmingly the source for identifying both types of cooperators, the specific
sources are different. Defendants/offenders were identified in plea agreements,75K1.1 mo, 201
tions, or through general docketing practices, especially the presence of r 8
mbea number of sealed
epte
on S
CM/ECF docket entries or a sentencing reduction. Respondents also reported discovery and
ved
hi
testimony as common sources for identifying 59 arc
defendant/offender cooperators. We found
-502
that witnesses, while also identified , No. 15 court documents, were often identified through
through
Doe
witness lists, because they giventestimony in open court, or through discovery.
oh
v. J
US reported on the willingness of defendants/offenders and witnesses to
RespondentsnalsoA
ed i
cit
provide cooperating information. Defense attorneys as well as prosecutors reported that, in
the past three years, hundreds of defendants/offenders and witnesses withdrew offers of cooperation and refused cooperation out of concerns about harm or threat. These results are
echoed in the open-ended comments of these two groups as well. Concerns about harm are
so real defendants requested court documents to prove they were not a cooperator over
1,900 times in the past three years.
While respondents were able to report on specific instances of harm or threat in the
past three years, they were largely unable to compare the amount of harm in 2014 to
2013. When they did answer, they reported similar levels of harm across the two years.
The final question, asked of chief district judges, sought to identify policy changes
that might be considered to protect cooperating defendants/offenders and witnesses. As
reported by respondents, the district courts have adopted a number of measures in an
attempt to protect cooperators. Among these measures is the sealing of docket entries
such as plea agreements, often sua sponte, to shield cooperation information. Some districts have taken the additional step of docketing all criminal cases the same way—for example, docketing blank sealed documents where no cooperation occurred. Respondents’
answers to questions about sources used to identify cooperators, especially defendants/offenders, raise questions about the effectiveness of such steps. Although sealing
documents may seem like a logical solution to protecting information about cooperators,
the presence of sealed documents and gaps in docket sequence numbers by themselves are

30

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 379 of 497

considered enough by other inmates to identify cooperators and put them at risk of harm.
The open-ended comments describe this phenomenon in detail. In these comments, respondents noted the problems inherent in sealing and made additional suggestions for
protecting cooperating information, including a separate filing system for the public from
that used by the courts. A small set of comments questioned the need for any policy for
protecting cooperator information, as well as raising issues of public access to court documents and proceedings. We include all these suggestions in Appendix I.
Though the direction that policy should take is not clear from the information provided in this survey, the scope of the problem is. Respondents reported a substantial
amount of harm, to both defendants and witnesses, resulting from use of court documents to identify cooperators. The problem occurs both during criminal prosecutions
and once defendants (whether they cooperated or not) begin serving sentences in BOP
and other facilities. Efforts to protect cooperating information, while in some instances
successful, have not eliminated the problem of harm to cooperators. While respondents
recognized that limiting access to these court documents would not completely eliminate
harm to cooperators, there was general agreement that something needed to be done—by
the judiciary, BOP, or both—to better protect cooperating information and reduce the
risk of harm to defendants and witnesses assisting in criminal prosecutions.

d on

cited

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

31

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 380 of 497

d on

nD

. Joh

cited

Av
in US

o.
oe, N

15-5

025

hive
9 arc

017
r 8, 2

Se

be
ptem

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 381 of 497

Appendix A: Survey Invitation and Questionnaires
Dear ${m://Title} ${m://LastName}:
There is a growing concern that information contained in publicly accessible court
documents is being used to threaten or harm defendants in criminal cases because of their
cooperation or suspected cooperation with the government. Some courts have
already acted in a variety of ways to safeguard such documents.
We write as the chairs of three Judicial Conference Committees to ask for your help in
collecting information that will assist our committees in making an important policy
decision – whether to propose to the Judicial Conference the establishment of national
procedures for protecting information in court documents indicating a defendant’s
cooperation, or intent to cooperate, with the government.
In an effort to measure the extent of this problem, we have asked the Federal Judicial
Center to conduct a survey on our behalf to gather information on threats of harm to, or
actual harm suffered by, defendants and witnesses in criminal cases because they were
actual or suspected cooperators with the government.
District judges, federal prosecutors and defenders, CJA district panel representatives, and
2017
chief probation and pre-trial officers are being surveyed.
er 8,

mb
epte
on S It will provide
When you click on the link below, you will connectrchived survey.
to the
a
2 Please be assured that all survey responses
important information about how to respond. 59
0
15-5
will be confidential and reported e, No. committees only in the aggregate.
o to the
nD
. Joh
SA v Your participation is greatly appreciated. Click on the link
Thank you fordyour time.
in U
cite

below to begin the survey. Please complete the survey by March 17th, 2015.
Sincerely,
Wm. Terrell Hodges, Chair
Court Administration and Case Management Committee
Irene M. Keeley, Chair
Criminal Law Committee
Catherine C. Blake, Chair
Defender Services Committee
Follow this link to the Survey:
${l://SurveyLink?d=Take the Survey}
Or copy and paste the URL below into your internet browser:
${l://SurveyURL}

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

33

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 382 of 497

Cooperators - Chief District Judges Preview
Survey Instructions
Scope of the Survey. This survey asks about information you may have received regarding
harm or threats of harm to defendants or witnesses on your docket because of their actual
or perceived cooperation with the government. Please consider only defendants or witnesses from cases on your docket, not those of a colleague, and report information you
consider to be reliable. Please consider only instances of harm or threats of harm from
cases on your docket in the last three years.
Definition of “Harm.” “Harm” refers to:
•
•
•

Actual or threats of economic harm
Actual or threats of physical harm
Murder

suffered by a defendant or witness (or their friends or family), inflicted by a third party in
retaliation for cooperating (or for being suspected of cooperating) with the government. Harm can occur at any point in a case, from pre-trial through conviction or acquit7
, 201
tal or any time thereafter.
ber 8
m

epte

nS
ed o

Confidentiality. All survey responses will be kept archiv
confidential and results will be reported
59
- 02
only in the aggregate. Please do not identify5any defendant or witness by name.
o. 15
hn
v. Jo

,N

Doe

Who to Contact. If SA have any questions about the study, you may contact any of the
you
in U
cited
three committee chairs or Dr. Margaret Williams, who is directing the study. If you have
questions about the items in this survey, or technical problems with the questionnaire,
Dr. Williams can be reached at 202-502-4080 or [e-mail].

34

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 383 of 497

In cases on your docket over the past three years, have you learned of any defendants
and/or witnesses who were harmed or threatened (including harm or threats to friends or
family) because of the defendant’s or witness’ cooperation with the government?
Yes
No
I can’t recall
Please think about the cases from the last three years for which you have the most information about actual harm or threats of harm to defendants or witnesses (or their friends
or family). This questionnaire asks a series of questions on up to five cases from your
docket. While you may not have all the information on each case, please answer as many
questions as you can to provide a complete picture of the harm or threats of harm to each
person.
[NOTE THIS SECTION WILL REPEAT UP TO FIVE TIMES.]
Thinking about the first case, who was harmed or threatened with harm? (Check all that
apply)
Defendant
Witness
017
r 8, 2

be
ptem

Did the defendant experience any of the following types of n Se or threats? (Choose one
harm
do
per row)
chive
r
59 a
Yes o. 15-502
No
Have no knowledge
oe, N

Threats of economic v. John D
USA
harm
ed in
cit

Actual economic
harm
Threats of physical
harm
Actual physical harm
Murder
Threats to friends or
family
Actual harm to
friends or family
Other (please specify)

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

35

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 384 of 497

When the defendant was harmed or threatened, he/she was... (Choose one per row)
Yes
No
Have no knowledge
in pre-trial detention
on pre-trial release
incarcerated postconviction
in an RRC or halfway
house
on probation or supervised release
elsewhere (please
specify)

Did the defendant request protective custody or placement in a special housing unit?
Yes
No
I can’t recall
017
r 8, 2

be
ptem

Did the defendant receive protective custody or placementon Se
in a special housing unit?
d
Yes
chive
9 ar
5025
No
. 15, No
Doe
I can’t recall
ohn
J
in
cited

USA

v.

Were any of the following court documents used to identify the defendant as a cooperator
(or suspected cooperator) with the government? (Choose one per row)
Yes
No
Have no knowledge
Judicial opinion
Rule 35(b) motion
§ 5K1.1 motion testimony/transcript
Plea agreement or plea
supplement
Sentencing memorandum
Other (please specify)

36

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 385 of 497

Did the witness experience any of the following types of harm or threats? (Choose one per
row)
Yes
No
Have no knowledge
Threats of economic
harm
Actual economic
harm
Threats of physical
harm
Actual physical harm
Murder
Threats to friends or
family
Actual harm to
friends or family
Other (please specify)
017
r 8, 2

be
ptem

e

When the witness was harmed or threatened, he/she was... on S
d (Choose one per row)
hive
9 arc No
Yes
Have no knowledge
5025
-

o. 15

in pre-trial detention

e, N
n Do

. Joh

on pre-trial release SA v
in U
cited

incarcerated postconviction
in an RRC or halfway
house
on probation or supervised release
elsewhere (please
specify)

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

37

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 386 of 497

Were any of the following court documents used to identify the witness as a cooperator
(or suspected cooperator) with the government? (Choose one per row)
Yes
No
Have no knowledge
Judicial opinion
Rule 35(b) motion
§ 5K1.1 motion testimony/transcript
Plea agreement or plea
supplement
Sentencing memorandum
Other (please specify)

Are there other cases on your docket from the past three years in which you learned of a
defendant or witness being harmed or threatened?
Yes
No
2017
I can’t recall
er 8,
hiv
[NOTE: THIS IS THE END OF THE REPEATINGrSECTION]
9ac
o.
oe, N

mb

epte

nS
ed o

025

15-5

Not including the defendants D
n regarding whom you’ve provided information in this sur. Joh
vey, how many nmore vdefendants from cases on your docket have you learned were
SA
i U
harmed or cited
threatened in the past three years?
Not including the witnesses regarding whom you’ve provided information in this survey,
how many more witnesses from cases on your docket have you learned were harmed or
threatened in the past three years?
Was the number of defendants and/or witnesses harmed or threatened due to perceived
or actual cooperation with the government higher or lower in 2014 compared to 2013?
Higher in 2014
About the same in 2014
Lower in 2014
I don’t know

38

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 387 of 497

To the best of your knowledge, what steps, if any, has your district taken to better protect
cooperation information in court documents? (Check all that apply)
Making criminal cases appear identically on CM/ECF to obscure cooperation information (such as requiring filing sealed supplements with a plea agreement)
Sealing documents containing cooperation information sua sponte
Sealing documents containing cooperation information at the request of the parties
Ordering parties to redact cooperation information from documents
Restricting remote access of documents containing cooperation information
Allowing public access of documents containing cooperation information only in the
courthouse or clerk’s office
Removing documents containing cooperation information from public files
Requiring the entry of documents containing cooperation to be private entries in
CM/ECF
Other (please specify) ____________________
None of the above
Please use the space below to provide any additional information about harm or threats of
harm experienced by defendants and/or witnesses (or their family or friends) from cases
on your docket in the past three years.
d on

cited

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

39

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 388 of 497

Cooperators - District Judges Preview
Survey Instructions
Scope of the Survey. This survey asks about information you may have received regarding
harm or threats of harm to defendants or witnesses on your docket because of their actual
or perceived cooperation with the government. Please consider only defendants or witnesses from cases on your docket, not those of a colleague, and report information you
consider to be reliable. Please consider only instances of harm or threats of harm from
cases on your docket in the last three years.
Definition of “Harm.” “Harm” refers to:
•
•
•

Actual or threats of economic harm
Actual or threats of physical harm
Murder

suffered by a defendant or witness (or their friends or family), inflicted by a third party in
retaliation for cooperating (or for being suspected of cooperating) with the government. Harm can occur at any point in a case, from pre-trial through conviction or acquit7
, 201
tal or any time thereafter.
ber 8
m

epte

nS
ed o

Confidentiality. All survey responses will be kept archiv
confidential and results will be reported
59
- 02
only in the aggregate. Please do not identify5any defendant or witness by name.
o. 15
hn
v. Jo

,N

Doe

Who to Contact. If SA have any questions about the study, you may contact any of the
you
in U
cited
three committee chairs or Dr. Margaret Williams, who is directing the study. If you have
questions about the items in this survey, or technical problems with the questionnaire,
Dr. Williams can be reached at 202-502-4080 or [e-mail].

40

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 389 of 497

In cases on your docket over the past three years, have you learned of any defendants
and/or witnesses who were harmed or threatened (including harm or threats to friends or
family) because of the defendant’s or witness’ cooperation with the government?
Yes
No
I can’t recall
Please think about the cases from the last three years for which you have the most information about actual harm or threats of harm to defendants or witnesses (or their friends
or family). This questionnaire asks a series of questions on up to five cases from your
docket. While you may not have all the information on each case, please answer as many
questions as you can to provide a complete picture of the harm or threats of harm to each
person.
[NOTE THIS SECTION WILL REPEAT UP TO FIVE TIMES.]
Thinking about the first case, who was harmed or threatened with harm? (Check all that
apply)
Defendant
017
Witness
r 8, 2
mbe

epte

nS
ed o

iv
Did the defendant experience any of the following rtypes of harm or threats? (Choose one
a ch
259
-50
per row)
o. 15
oe, N
No
Have no knowledge
DYes
ohn

Threats of economic A
in US
cited
harm

v. J

Actual economic
harm
Threats of physical
harm
Actual physical harm
Murder
Threats to friends or
family
Actual harm to
friends or family
Other (please specify)

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

41

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 390 of 497

When the defendant was harmed or threatened, he/she was... (Choose one per row)
Yes
No
Have no knowledge
in pre-trial detention
on pre-trial release
incarcerated postconviction
in an RRC or halfway
house
on probation or supervised release
elsewhere (please
specify)

Did the defendant request protective custody or placement in a special housing unit?
Yes
No
I can’t recall
017
r 8, 2

be
ptem

Did the defendant receive protective custody or placementon Se
in a special housing unit?
d
Yes
chive
9 ar
5025
No
. 15, No
Doe
I can’t recall
ohn
J
in
cited

USA

v.

Were any of the following court documents used to identify the defendant as a cooperator
(or suspected cooperator) with the government? (Choose one per row)
Yes
No
Have no knowledge
Judicial opinion
Rule 35(b) motion
§ 5K1.1 motion testimony/transcript
Plea agreement or plea
supplement
Sentencing memorandum
Other (please specify)

42

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 391 of 497

Did the witness experience any of the following types of harm or threats? (Choose one per
row)
Yes
No
Have no knowledge
Threats of economic
harm
Actual economic
harm
Threats of physical
harm
Actual physical harm
Murder
Threats to friends or
family
Actual harm to
friends or family
Other (please specify)
017
r 8, 2

be
ptem

e

When the witness was harmed or threatened, he/she was... on S
d (Choose one per row)
hive
9 arc No
Yes
Have no knowledge
5025
-

o. 15

in pre-trial detention

e, N
n Do

. Joh

on pre-trial release SA v
in U
cited

incarcerated postconviction
in an RRC or halfway
house
on probation or supervised release
elsewhere (please
specify)

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

43

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 392 of 497

Were any of the following court documents used to identify the witness as a cooperator
(or suspected cooperator) with the government? (Choose one per row)
Yes
No
Have no knowledge
Judicial opinion
Rule 35(b) motion
§ 5K1.1 motion testimony/transcript
Plea agreement or plea
supplement
Sentencing memorandum
Other (please specify)

Are there other cases on your docket from the past three years in which you learned of a
defendant or witness being harmed or threatened?
Yes
No
2017
I can’t recall
er 8,
hiv
[NOTE THIS IS THE END OF THE REPEATING SECTION]
9 arc
o.
oe, N

mb

epte

nS
ed o

025

15-5

Not including the defendants D
n regarding whom you’ve provided information in this sur. Joh
vey, how many nmore vdefendants from cases on your docket have you learned were
SA
i U
harmed or cited
threatened in the past three years?
Not including the witnesses regarding whom you’ve provided information in this survey,
how many more witnesses from cases on your docket have you learned were harmed or
threatened in the past three years?
Was the number of defendants and/or witnesses harmed or threatened due to perceived
or actual cooperation with the government higher or lower in 2014 compared to 2013?
Higher in 2014
About the same in 2014
Lower in 2014
I don’t know
Please use the space below to provide any additional information about harm or threats of
harm experienced by defendants and/or witnesses (or their family or friends) from cases
on your docket in the past three years.

44

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 393 of 497

Cooperators - Federal Defenders and CJA Panel Representatives Preview
Survey Instructions
Scope of the Survey. This survey asks about information you may have received regarding
harm or threats of harm to defendants or witnesses because of their actual or perceived
cooperation with the government. Please consider only defendants or witnesses from your
cases, not those of a colleague, and report information you or your staff consider to be
reliable. Please consider only instances of harm or threats of harm from cases in the last
three years. We ask that you coordinate the responses among the members of your office
to create a single response for the entire office. Please do not forward the survey link.
Definition of “Harm.” “Harm” refers to:
•
•
•

Actual or threats of economic harm
Actual or threats of physical harm
Murder

suffered by a defendant or witness (or their friends or family), inflicted by a third party in
retaliation for cooperating (or for being suspected of cooperating) with the govern17
ment. Harm can occur at any point in a case, from pre-trial through ber 8, 20 or acquitconviction
m
epte
tal or any time thereafter.
on S

ived
arch
259 confidential and results will be reported
Confidentiality. All survey responses o. 15be0kept
will -5
N
oe, identify any defendant or witness by name.
only in the aggregate. PleasehdoD
n not
. Jo
SA v
in U
cited
Who to Contact. If you have any questions about the study or technical problems with

the questionnaire, please contact Dr. Margaret Williams at 202-502-4080 or
[e-mail].

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

45

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 394 of 497

In your cases over the past three years, have you learned of any defendants and/or witnesses who were harmed or threatened (including harm or threats to friends or family)
because of the defendant’s or witness’ cooperation with the government?
Yes
No
I can’t recall
Please think about the cases from the last three years for which you have the most information about actual harm or threats of harm to defendants or witnesses (or their friends
or family). This questionnaire asks a series of questions on up to five cases. While you
may not have all the information on each case, please answer as many questions as you
can to provide a complete picture of the harm or threats of harm to each person.
[NOTE THIS SECTION WILL REPEAT UP TO FIVE TIMES.]
Thinking about the first case, who was harmed or threatened with harm? (Check all that
apply)
Defendant
Witness
7

1
Did the defendant experience any of the following types of harm or threats?0(Choose one
r 8, 2
mbe
per row)
epte
on S
ved
hi
Yes
Have no knowledge
9 arc No

Threats of economic
harm

025

15-5

nD

. Joh

Av
in US

o.
oe, N

Actual economic
cited
harm

Threats of physical
harm
Actual physical harm
Murder
Threats to friends or
family
Actual harm to
friends or family
Other (please specify)

46

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 395 of 497

When the defendant was harmed or threatened, he/she was... (Choose one per row)
Yes
No
Have no knowledge
in pre-trial detention
on pre-trial release
incarcerated postconviction
in an RRC or halfway
house
on probation or supervised release
elsewhere (please
specify)

Did the defendant request protective custody or placement in a special housing unit?
Yes
No
I can’t recall
017
r 8, 2

be
ptem

Did the defendant receive protective custody or placementon Se
in a special housing unit?
d
Yes
chive
9 ar
5025
No
. 15, No
Doe
I can’t recall
ohn
J
in
cited

USA

v.

Were any of the following court documents used to identify the defendant as a cooperator
(or suspected cooperator) with the government? (Choose one per row)
Yes
No
Have no knowledge
Judicial opinion
Rule 35(b) motion
§ 5K1.1 motion testimony/transcript
Plea agreement or plea
supplement
Sentencing memorandum
Other (please specify)

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

47

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 396 of 497

Did the witness experience any of the following types of harm or threats? (Choose one per
row)
Yes
No
Have no knowledge
Threats of economic
harm
Actual economic
harm
Threats of physical
harm
Actual physical harm
Murder
Threats to friends or
family
Actual harm to
friends or family
Other (please specify)
7
, 201

8
When the witness was harmed or threatened, he/she was... (Choosemberper row)
e one
Sept Have no knowledge
Yes
No on
ived
rch

59 a

in pre-trial detention
on pre-trial release

A

incarcerateditpost- US
in
c ed
conviction

hn
v. Jo

502
. 15-

, No

Doe

in an RRC or halfway
house
on probation or supervised release
elsewhere (please
specify)

48

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 397 of 497

Were any of the following court documents used to identify the witness as a cooperator
(or suspected cooperator) with the government? (Choose one per row)
Yes
No
Have no knowledge
Judicial opinion
Rule 35(b) motion
§ 5K1.1 motion testimony/transcript
Plea agreement or plea
supplement
Sentencing memorandum
Other (please specify)

Are there other cases from the past three years in which you learned of a defendant or
witness being harmed or threatened?
Yes
No
7
, 201
I can’t recall
ber 8
hiv
[NOTE: THIS IS THE END OF THE REPEATINGrSECTION]
9ac
o.
oe, N

m

epte

nS
ed o

025

15-5

Not including the defendants D
regarding whom you’ve provided information in this surJohn
vey, how many nmore v.
SA defendants from your cases have you learned were harmed or
i U
threatened citethe past three years?
in d
Not including the witnesses regarding whom you’ve provided information in this survey,
how many more witnesses from your cases have you learned were harmed or threatened
in the past three years?
In the past three years, how many defendants, because of actual or threatened harm, requested case information (CM/ECF docket, pre-sentence report, etc.) to prove they were
not a cooperator?
In the past three years, how many defendants, because of actual or threatened harm, requested all or part of their CM/ECF docket be sealed?
In the past three years, how many defendants withdrew offers of cooperation because of
actual or threatened harm?

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

49

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 398 of 497

In the past three years, how many defendants refused cooperation because of actual or
threatened harm?
In the past three years, how many witnesses withdrew offers of cooperation because of
actual or threatened harm?
In the past three years, how many witnesses refused cooperation because of actual or
threatened harm?
Was the number of defendants and/or witnesses harmed or threatened due to perceived
or actual cooperation with the government higher or lower in 2014 compared to 2013?
Higher in 2014
About the same in 2014
Lower in 2014
I don’t know
Please use the space below to provide any additional information about harm or threats of
harm experienced by defendants and/or witnesses (or their family or friends) from
your cases in the past three years.

d on

cited

50

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 399 of 497

Cooperators - Probation/Pre-Trial Preview
Survey Instructions
Scope of the Survey. This survey asks about information you may have received regarding
harm or threats of harm to defendants/offenders or witnesses from your district because
of their actual or perceived cooperation with the government. Please consider only defendants/offenders or witnesses from your district and report information you or
your staff consider to be reliable. Please consider only instances of harm or threats of
harm from cases from your district in the last three years. We ask that you coordinate the
responses among the members of your office to create a single response for the entire office. Please do not forward the survey link.
Definition of “Harm.” “Harm” refers to:
•
•
•

Actual or threats of economic harm
Actual or threats of physical harm
Murder

suffered by a defendant/offender or witness (or their friends or family), inflicted by a
017
third party in retaliation for cooperating (or for being suspected of cooperating) with the
r 8, 2
mbe
government. Harm can occur at any point in a case, from on Septe through conviction or
pre-trial
d
acquittal or any time thereafter.
chive
9 ar
o.
oe, N

025

15-5

Confidentiality. All survey responses will be kept confidential and results will be reported
D
John
only in the aggregate.A v. do not identify any defendant/offender or witness by name.
S Please
U
cited

in

Who to Contact. If you have any questions about the study or technical problems with
the questionnaire, please contact Dr. Margaret Williams at 202-502-4080 or
[e-mail].

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

51

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 400 of 497

In cases from your district over the past three years, have you learned of any defendants/offenders and/or witnesses who were harmed or threatened (including harm or
threats to friends or family) because of the defendant/offender’s or witness’ cooperation
with the government?
Yes
No
I can’t recall
Please think about the cases from the last three years for which you have the most information about actual harm or threats of harm to defendants/offenders or witnesses (or
their friends or family). This questionnaire asks a series of questions on up to five cases.
While you may not have all the information on each case, please answer as many questions as you can to provide a complete picture of the harm or threats of harm to each person.
[NOTE THIS SECTION WILL REPEAT UP TO FIVE TIMES.]
Thinking about the first case, who was harmed or threatened with harm? (Check all that
apply)
Defendant/Offender
017
Witness
r 8, 2
mbe

epte

nS
ed o

Did the defendant/offender experience any of thechiv
r following types of harm or threats?
59 a
-502
(Choose one per row)
o. 15
oe, N
No
Have no knowledge
n DYes
oh
Threats of economic A
in US
cited
harm

v. J

Actual economic
harm
Threats of physical
harm
Actual physical harm
Murder
Threats to friends or
family
Actual harm to
friends or family
Other (please specify)

52

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 401 of 497

When the defendant/offender was harmed or threatened, he/she was... (Choose one per
row)
Yes
No
Have no knowledge
in pre-trial detention
on pre-trial release
incarcerated postconviction
in an RRC or halfway
house
on probation or supervised release
elsewhere (please
specify)

Did the defendant/offender request protective custody or placement in a special housing
unit?
Yes
017
No
r 8, 2
mbe
pte
I can’t recall
n Se
ed o
59
-502

iv

arch

Did the defendant/offender receive protective custody or placement in a special housing
o. 15
e, N
unit?
n Do
Joh
A v.
Yes
n US
di
No cite
I can’t recall
Were any of the following court documents used to identify the defendant/offender as a
cooperator (or suspected cooperator) with the government? (Choose one per row)
Yes
No
Have no knowledge
Judicial opinion
Rule 35(b) motion
§ 5K1.1 motion testimony/transcript
Plea agreement or plea
supplement
Sentencing memorandum
Other (please specify)

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

53

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 402 of 497

Did the witness experience any of the following types of harm or threats? (Choose one per
row)
Yes
No
Have no knowledge
Threats of economic
harm
Actual economic
harm
Threats of physical
harm
Actual physical harm
Murder
Threats to friends or
family
Actual harm to
friends or family
Other (please specify)
7
, 201

8
When the witness was harmed or threatened, he/she was... (Choosemberper row)
e one
Sept Have no knowledge
Yes
No on
ived
rch

59 a

in pre-trial detention
on pre-trial release

A

incarcerateditpost- US
in
c ed
conviction

hn
v. Jo

502
. 15-

, No

Doe

in an RRC or halfway
house
on probation or supervised release
elsewhere (please
specify)

54

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 403 of 497

Were any of the following court documents used to identify the witness as a cooperator
(or suspected cooperator) with the government? (Choose one per row)
Yes
No
Have no knowledge
Judicial opinion
Rule 35(b) motion
§ 5K1.1 motion testimony/transcript
Plea agreement or plea
supplement
Sentencing memorandum
Other (please specify)
Are there other cases from your district in the past three years in which you learned of a
defendant or witness being harmed or threatened?
Yes
No
I can’t recall
[NOTE: THIS IS THE END OF THE REPEATING SECTION] e
on S
59
-502

ived

017
r 8, 2

be
ptem

arch

Not including the defendants/offenders15
o. regarding whom you’ve provided information in
e, N
this survey, how many more defendants/offenders from cases in your district have you
n Do
Joh
learned were harmed A v.
or threatened in the past three years?
n US
cited

i

Not including the witnesses regarding whom you’ve provided information in this survey,
how many more witnesses from cases in your district have you learned were harmed or
threatened in the past three years?
Was the number of defendants/offenders and/or witnesses harmed or threatened due to
perceived or actual cooperation with the government higher or lower in 2014 compared
to 2013?
Higher in 2014
About the same in 2014
Lower in 2014
I don’t know
Please use the space below to provide any additional information about harm or threats of
harm experienced by defendants/offenders and/or witnesses (or their family or friends)
from cases in your district in the past three years.

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

55

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 404 of 497

Cooperators - U.S. Attorneys Preview
Survey Instructions
Scope of the Survey. This survey asks about information you may have received regarding
harm or threats of harm to defendants or witnesses because of their actual or perceived
cooperation with the government. Please consider only defendants or witnesses from cases prosecuted by your office, not those of a colleague, and report information you consider to be reliable. Please consider only instances of harm or threats of harm from cases in
the last three years. We ask that you coordinate the responses among the members of
your office to create a single response for the entire office. Please do not forward the survey link.
Definition of “Harm.” “Harm” refers to:
•
•
•

Actual or threats of economic harm
Actual or threats of physical harm
Murder

suffered by a defendant or witness (or their friends or family), inflicted by a third party in
17
retaliation for cooperating (or for being suspected of cooperating) r with the govern8, 20
mbe
ment. Harm can occur at any point in a case, from pre-trialn Septe conviction or acquitthrough
do
tal or any time thereafter.
chive
9 ar
o.
oe, N

025

15-5

Confidentiality. All survey responses will be kept confidential and results will be reported
D
John
only in the aggregate.A v. do not identify any defendant or witness by name.
S Please
U
cited

in

Who to Contact. If you have questions about the items in this survey, or technical problems with the questionnaire, please contact Dr. Margaret Williams at 202-502-4080 or
[e-mail].

56

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 405 of 497

In cases prosecuted by your office over the past three years, have you learned of any defendants and/or witnesses who were harmed or threatened (including harm or threats to
friends or family) because of the defendant’s or witness’ cooperation with the government?
Yes
No
I can’t recall
Please think about the cases from the last three years for which you have the most information about actual harm or threats of harm to defendants or witnesses (or their friends
or family). This questionnaire asks a series of questions on up to five cases. While you
may not have all the information on each case, please answer as many questions as you
can to provide a complete picture of the harm or threats of harm to each person.
[NOTE THIS SECTION WILL REPEAT UP TO FIVE TIMES.]
Thinking about the first case, who was harmed or threatened with harm? (Check all that
apply)
Defendant
Witness
017
r 8, 2

be
ptem

Did the defendant experience any of the following types of n Se or threats? (Choose one
harm
do
per row)
chive
r
59 a
Yes o. 15-502
No
Have no knowledge
oe, N

Threats of economic v. John D
USA
harm
ed in
cit

Actual economic
harm
Threats of physical
harm
Actual physical harm
Murder
Threats to friends or
family
Actual harm to
friends or family
Other (please specify)

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

57

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 406 of 497

When the defendant was harmed or threatened, he/she was... (Choose one per row)
Yes
No
Have no knowledge
in pre-trial detention
on pre-trial release
incarcerated postconviction
in an RRC or halfway
house
on probation or supervised release
elsewhere (please
specify)

Did the defendant request protective custody or placement in a special housing unit?
Yes
No
I can’t recall
017
r 8, 2

be
ptem

Did the defendant receive protective custody or placementon Se
in a special housing unit?
d
Yes
chive
9 ar
5025
No
. 15, No
Doe
I can’t recall
ohn
J
in
cited

USA

v.

Were any of the following court documents used to identify the defendant as a cooperator
(or suspected cooperator) with the government? (Choose one per row)
Yes
No
Have no knowledge
Judicial opinion
Rule 35(b) motion
§ 5K1.1 motion testimony/transcript
Plea agreement or plea
supplement
Sentencing memorandum
Other (please specify)

58

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 407 of 497

Did the witness experience any of the following types of harm or threats? (Choose one per
row)
Yes
No
Have no knowledge
Threats of economic
harm
Actual economic
harm
Threats of physical
harm
Actual physical harm
Murder
Threats to friends or
family
Actual harm to
friends or family
Other (please specify)
7
, 201

8
When the witness was harmed or threatened, he/she was... (Choosember per row)
e one
Sept Have no knowledge
Yes
No on
ived
rch

59 a

in pre-trial detention
on pre-trial release

A

incarcerateditpost- US
in
c ed
conviction

hn
v. Jo

502
. 15-

, No

Doe

in an RRC or halfway
house
on probation or supervised release
elsewhere (please
specify)

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

59

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 408 of 497

Were any of the following court documents used to identify the witness as a cooperator
(or suspected cooperator) with the government? (Choose one per row)
Yes
No
Have no knowledge
Judicial opinion
Rule 35(b) motion
§ 5K1.1 motion testimony/transcript
Plea agreement or plea
supplement
Sentencing memorandum
Other (please specify)

Are there other cases prosecuted by your office in the past three years in which you
learned of a defendant or witness being harmed or threatened?
Yes
No
017
I can’t recall
r 8, 2
mbe

epte
on S
ved
[NOTE: THIS IS THE END OF THE REPEATINGrSECTION]
chi
59 a
-502
15
No.
Not including the defendants Doe,
n regarding whom you’ve provided information in this surh
v. Jo
vey, how many moreAdefendants from cases prosecuted by your office have you learned
n US
i
cit or
were harmeded threatened in the past three years?

Not including the witnesses regarding whom you’ve provided information in this survey,
how many more witnesses from cases prosecuted by your office have you learned were
harmed or threatened in the past three years?
In the past three years, how many defendants withdrew offers of cooperation because of
actual or threatened harm?
In the past three years, how many defendants refused cooperation because of actual or
threatened harm?
In the past three years, how many witnesses withdrew offers of cooperation because of
actual or threatened harm?
In the past three years, how many witnesses refused cooperation because of actual or
threatened harm?

60

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 409 of 497

Was the number of defendants and/or witnesses harmed or threatened due to perceived
or actual cooperation with the government higher or lower in 2014 compared to 2013?
Higher in 2014
About the same in 2014
Lower in 2014
I don’t know
Please use the space below to provide any additional information about harm or threats of
harm experienced by defendants and/or witnesses (or their family or friends) from cases
prosecuted by your office in the past three years.

d on

cited

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

61

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 410 of 497

d on

nD

. Joh

cited

Av
in US

o.
oe, N

15-5

025

hive
9 arc

017
r 8, 2

Se

be
ptem

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 411 of 497

Appendix B: Other Types of Harm or Threat to Defendants
Categories of Other Harm

Description

Property damage

Animal

Property damage

destruction of property

Property damage

homes or automobiles [shot] at while occupied

Property damage

property damage

Property damage

The home that he and his family resided in was shot up a
day before he was scheduled to testify

Property damage

Family house shot at

Property damage

Shot window out of residence

Property damage

they burned his house down

Property damage

Defendant’s home was fired upon by unknown individual.

Internet/community/general threats

One offender [redacted] claims to have been shot at leaving
the Residential Reentry Center after providing a drug test.
A second [offender] [redacted] advised she 17 repeated
had
0
threats at the gas station where [shebworked] and on Facer 8, 2
e
em
book postings. A third on Sept [redacted] [is receiving]
offender
ived
threats in the community and on [Facebook].
arch
259
-50
Internet/community/general threats , isolation at prison due to threats
o. 15
oe N
nD
.J h
Internet/community/general o
SA v threats made uncomfortable
in U
cited
Internet/community/general threats Potential threat due to offender at RRC testifying against
another offender’s brother
Internet/community/general threats

Believed he [cooperated] but did not and he continues to
receive threats

Internet/community/general threats

Although not physically harmed, defendant was physically
grabbed when the threat was made against him.

Internet/community/general threats

Defendant’s status as a cooperator was put on the internet.

Internet/community/general threats

Flyers posted in his neighborhood that he cooperated.

Internet/community/general threats

Name posted on Top Snitches Facebook page

Internet/community/general threats

told family members to put his name on rats.com

Internet/community/general threats

After testifying against co-defendants, intimidated via activity around home

Internet/community/general threats

Note on floor [of] halfway house identifying defendant as
cooperator

Internet/community/general threats

person contacted offender’s mother at her residence and his
wife, via Facebook, and make some veiled verbal threats
and name calling

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

63

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 412 of 497

Categories of Other Harm

Description

Internet/community/general threats

Intimidation; showed up at work and in the neighborhood

Internet/community/general threats

veiled threats via text message

Internet/community/general threats

Video / YouTube Rap Video Threat

Existing categories

One offender [redacted] claims to have been shot at leaving
the Residential Reentry Center after providing a drug test.
A second [offender] [redacted] advised she had repeated
threats at the gas station where [she worked] and on Facebook postings. A third offender [redacted] is receiving
threats in the community and on [Facebook].

Existing categories

Implications of cultural beliefs/acts that may harm defendant/offender and family

Existing categories

Arson of mother’s house killed six people

Existing categories

Shot 3 times

Existing categories

[Threats] were made regarding the safety and welfare of
defendant’s family members in [redacted]

Existing categories

Existing categories
Existing categories

A

in US
Existing categories
cited

As with the last question answered, I have had multiple
01 themselves
defendants in pretrial detention face threats2for7
r 8,
mbe
or family members abroad if theyeproceeded to cooperate
ept
on S
ved may harm defendant and family.
rch
Cultural beliefs/actsithat
59 a
-502
15
No.
e, In [immigration] drug cases routinely defendant and family
n Do are threats by drug lords
h
v. Jo
was assaulted in the middle of trial testimony

Other

Especially true in codefendants’ providing substantial assistance

Other

threats to prosecution and defense counsel

Other

[Missing Comment]

Other

Media and Courtroom Testimony

Other

relocated 4 times

64

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 413 of 497

Appendix C: Other Locations at the Time of Harm or Threat
to Defendants
Categories of Other Locations

Description

Not in custody of any kind

after completion of imprisonment and supervised release

Not in custody of any kind

less than a year following his termination of supervised release

Not in custody of any kind

Not arrested

Not in custody of any kind

not charged

Not in custody of any kind

post conviction and [sentence]

Not in custody of any kind

the defendant was harmed prior to being charged due to his
cooperation

Not in custody of any kind

Witness- out of custody

Not in custody of any kind

not yet charged

Not in custody of any kind

upon release

Not in custody of any kind

one cooperator was uncharged at the time of the threat
017
r 8, 2
Not in custody of any kind
pre-arrest
mbe
epte
on S
ved
Not in custody of any kind
Prior to arrest - archi traffickers in [redacted]
narc
59
-502
Not in custody of any kind
non-incarcerated family members in [redacted]
o. 15
e, N
n Do
h
Other forms of custodyA v. Jo
pre sentencing release
n US
ed i
cit
Other forms of custody
state custody on another charge
Other forms of custody

witness protection program

Other forms of custody

Threats were numerous, starting while on bond and continuing into time on probation.

Other forms of custody

While awaiting sentencing.

Other forms of custody

The defendant was arrested on new criminal charges.

Other forms of custody

USMS lock-up pending a court proceeding

Other forms of custody

Custody

Other forms of custody

in [redacted] following deportation while on supervised
release

Other forms of custody

USMS lock-up pending court proceeding

Other

During the course of the investigation

Other

For family members none of these applies

Other

I don’t remember

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

65

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 414 of 497

Categories of Other Locations

Description

Other

defendant absconded pretrial release supervision and was
living in [redacted]

Other

the threat - made to defendant - was of harm to his himself
or his family

Other

[missing comment]

Other

suspected cooperating witness during drug conspiracy

d on

cited

66

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 415 of 497

Appendix D: Other Sources to Identify Defendants
Categories of Other Sources

Description

Suspicion

After the target’s arrest, the defendant was suspected
of cooperating. When the defendant was arrested
(and in pre-trial detention) he was threatened. I
took proactive steps to prevent disclosure of information during the court proceedings.

Suspicion

co-defendant suspicion

Suspicion

co-defendant [suspicions]

Suspicion

Defendant in an [redacted] RICO gang case was
suspected by other incarcerated gang members of
cooperating with law enforcement as to the murder
of a police officer, and he was stabbed in a federal
detention facility.

Suspicion

gossip

Suspicion

gossip

Suspicion

prison gossip

Se
rumor
d on
chive
9 ar
rumor5of cooperation
502
. 15o

Suspicion
Suspicion
Suspicion

A

US
ed in

hn
v. Jo

,N

Doe

017
r 8, 2

be
ptem

rumor of cooperation

Suspicion cit

The Defendant was released with conditions and the
co [defendants] were under the belief that anyone
released was cooperating with the [government].

Suspicion

word of mouth

Other court document/proceeding

302 report after debriefing

Other court document/proceeding

a criminal complaint unsealed in a related case identified statements made by the defendant upon his
arrest

Other court document/proceeding

A plea agreement that was not filed and was presumed to include a substantial assistance provision
because it was filed under seal

Other court document/proceeding

a request letter to the judge to use the offender as an
informant

Other court document/proceeding

A tape recorded conversation between the D and the
CI was disclosed in discovery. Other Defendants
obtained a copy of that recorded call and threatened
the D and her family as a result.

Other court document/proceeding

affidavit

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

67

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 416 of 497

Categories of Other Sources

Description

Other court document/proceeding

After live testimony

Other court document/proceeding

Again, it is an issue with BOP inmates obtaining
Docket Sheets.

Other court document/proceeding

BOP inmates demanded the defendant’s docket
sheet, and looked for “holes” in the docket sheet-which corresponded to sealed motions, plea agreement attachments, sentencing memorandum, and
the like. From those sealed docket entries, they correctly surmised the defendant was a cooperator.

Other court document/proceeding

Change in Offender’s length of time listed in BOP
data base

Other court document/proceeding

CI Agreement

Other court document/proceeding

co-defendant discovery

Other court document/proceeding

Community became aware client would testify at
trial of co-defendants. Threats were then made to
defendant and family

Other court document/proceeding

court-ordered discovery

017
r 8, 2

be
ptem

Other court document/proceeding

Courtroom testimony e
S
d on
chive
Other court document/proceeding
courtroomrtestimony
a
259
5-50
. 1Courtroom [testimony]
Other court document/proceeding oe, No
nD
. Joh
Other court document/proceeding
Criminal Complaint
SA v
in U
cited
Other court document/proceeding
criminal complaint
Other court document/proceeding

DEA 6

Other court document/proceeding

debrief statement provided in discovery to target’s
[attorney]

Other court document/proceeding

Defendant did NOT cooperate but was threatened
until produced clean docket sheet as proof

Other court document/proceeding

Defendant’s cooperation was noted in a memorandum of interview that was produced to the defense
in discovery. Report is that members of criminal
organization will attend sentencing to hear if there
are any references to cooperation.

Other court document/proceeding

Defendant’s Motion to Vacate

Other court document/proceeding

disclosure of cooperation in discovery to codefendant

Other court document/proceeding

disclosure pre-trial

Other court document/proceeding

Discovery

Other court document/proceeding

Discovery

68

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 417 of 497

Categories of Other Sources

Description

Other court document/proceeding

Discovery

Other court document/proceeding

Discovery

Other court document/proceeding

discovery

Other court document/proceeding

Discovery

Other court document/proceeding

Discovery

Other court document/proceeding

Discovery

Other court document/proceeding

Discovery

Other court document/proceeding

discovery

Other court document/proceeding

Discovery

Other court document/proceeding

Discovery

Other court document/proceeding

Discovery Documents

Other court document/proceeding

discovery documents

Other court document/proceeding

discovery file

Other court document/proceeding

discovery file

discovery file
Se
d on
chive
Other court document/proceeding
discovery ar
9 file
5025
. 15Other court document/proceeding oe, No discovery from co-defendant
nD
. Joh
SA v
Other court document/proceeding
discovery in state case
in U
cited
Other court document/proceeding
discovery information
Other court document/proceeding

017
r 8, 2

be
ptem

Other court document/proceeding

Discovery material

Other court document/proceeding

Discovery material was distributed into community.

Other court document/proceeding

discovery materials

Other court document/proceeding

Discovery materials

Other court document/proceeding

Discovery materials

Other court document/proceeding

Discovery materials to codefendants

Other court document/proceeding

Discovery of co-defendants

Other court document/proceeding

discovery provided to counsel of codefendants

Other court document/proceeding

Discovery provided to the party who issued the
threat

Other court document/proceeding

discussion during sentencing

Other court document/proceeding

docket

Other court document/proceeding

Docket entries would allow inference

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

69

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 418 of 497

Categories of Other Sources

Description

Other court document/proceeding

docket entry scheduling change of plea

Other court document/proceeding

docket reports of filings under seal

Other court document/proceeding

docket sheet

Other court document/proceeding

docket sheet

Other court document/proceeding

Docket sheet

Other court document/proceeding

docket sheet

Other court document/proceeding

Docket sheet had sealed filings

Other court document/proceeding

ECF-docket report

Other court document/proceeding

everything sealed

Other court document/proceeding

evidence and transcripts from co-defendant’s trial

Other court document/proceeding

evidence at co-defendant’s trial

Other court document/proceeding

FBI 302

Other court document/proceeding

Gave testimony on conduct of others within prison
setting.
17
8, 20
Other court document/proceeding
government witness list tember
ep
on S
ved
Other court document/proceeding
Grand juryrtranscript.
chi
59 a
-502
5
Other court document/proceeding
o. 1He testified in a public trial but he was transported
e, N
with the people against whom he testified.
n Do
Joh
A v.
n US
Other courtcited i
document/proceeding
I read about the issue in the PSR
Other court document/proceeding

in PSR & SOR

Other court document/proceeding

[indictment]

Other court document/proceeding

indictment

Other court document/proceeding

indictment

Other court document/proceeding

inference from docket entry

Other court document/proceeding

J&C, Presentence Report

Other court document/proceeding

J&C, Presentence Report

Other court document/proceeding

J&S, docket sheet - sealed documents

Other court document/proceeding

J&S, presence of sealed items on docket

Other court document/proceeding

Jencks

Other court document/proceeding

Judgment obviously reflecting a reduction from a
mandatory minimum

Other court document/proceeding

Letter from counsel

Other court document/proceeding

memos with redactions

70

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 419 of 497

Categories of Other Sources

Description

Other court document/proceeding

Modification of Pretrial Conditions of Release Order

Other court document/proceeding

motion for transfer

Other court document/proceeding

motion practice

Other court document/proceeding

Motion to Seal - sealed justification

Other court document/proceeding

Motion to Seal-sealed justification

Other court document/proceeding

NJ state discovery

Other court document/proceeding

[observers] at plea and sentencing

Other court document/proceeding

Of these documents, only the [redacted] Circuit
opinion publicly identified defendant as a cooperator; however BOP inmates confronted the defendant
and obtained a copy of his Docket sheet, which
showed gaps in entries for sealed documents. From
these gaps, BOP inmates correctly deduced defendant had cooperated.

Other court document/proceeding

Order Setting Conditions of Release

Police report provided in discovery 017
,2
ber 8
Other court document/proceeding
police report, co-defendantem
pt
Se
d on
hive
cInvestigation
Other court document/proceeding
Presentence
ar
259
5-50
. 1Presentence Investigation
Other court document/proceeding oe, No
nD
. Joh
Other court document/proceeding
Presentence Investigation Report
SA v
in U
cited
Other court document/proceeding
presentence report
Other court document/proceeding

Other court document/proceeding

presentence report

Other court document/proceeding

presentence report

Other court document/proceeding

Proffer

Other court document/proceeding

Proffer agreement, GJ testimony in discovery file

Other court document/proceeding

proffer statements

Other court document/proceeding

Proffer-DEA Released to defense attorneys.

Other court document/proceeding

Prosecutor’s Statement and quotes copied from PSI

Other court document/proceeding

Prosecutor’s Statement or copies of PSI

Other court document/proceeding

PSR

Other court document/proceeding

PSR

Other court document/proceeding

PSR

Other court document/proceeding

PSR

Other court document/proceeding

PSR, GJ, Discovery

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

71

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 420 of 497

Categories of Other Sources

Description

Other court document/proceeding

PSR, GJ, Discovery

Other court document/proceeding

PSR, GJ, Discovery

Other court document/proceeding

related state court documents

Other court document/proceeding

report of proffer

Other court document/proceeding

Rule 16 discovery (search warrant affidavit—
although the defendant was referred to generally as
CS. I took proactive steps to seal other information
to prevent additional disclosure.

Other court document/proceeding

scheduling a change of plea appearing on the docket

Other court document/proceeding

search warrant affidavit

Other court document/proceeding

sentencing transcript

Other court document/proceeding

sentencing transcript

Other court document/proceeding

Statement of Reason

Other court document/proceeding

Statement of Reasons

Other court document/proceeding

Statement of Reasons

017
r 8, 2

be
ptem

Statement of Reasons Se
on
ived
Other court document/proceeding
Statement of h
9 arc Reasons
025
15-5
No. statement to police
Other court document/proceeding oe,
nD
. Joh
Other court document/proceeding
Suspected source was an ATF report provided in
SA v
in U
cited
discovery as Jencks material prior to a suppression
hearing.
Other court document/proceeding

Other court document/proceeding

Testified against co-defendants

Other court document/proceeding

testified in public trial

Other court document/proceeding

testified vs co- deft.

Other court document/proceeding

Testimony and Media

Other court document/proceeding

Testimony at trial

Other court document/proceeding

The defendant was believed to be a cooperator because he was on bond (after a drug arrest) when the
main target of the investigation was arrested.

72

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 421 of 497

Categories of Other Sources

Description

Other court document/proceeding

[T]he defendant was forced to sign a letter requesting docket sheets. These docket sheets were to be
used to determine whether the defendant cooperated
with the [government]. The letters of request were
sent to the US Probation Office and the Clerk’s Office. [We] [redacted] chose not to send the requested
documents to the defendant. The defendant’s mother contacted the probation officer [who] wrote the
pre-sentence report to advise of threats being made
against her son (the defendant).

Other court document/proceeding

The defendant’s name was noted in the grand jury
testimony on a state case in which she provided testimony as a witness and received credit for on her
federal case.

Other court document/proceeding

[T]he document being requested was the docket
sheet which specifically indicates if the documents
are sealed. We chose not to send the defendant his
docket sheet as he requested.

Other court document/proceeding

The Presentence Report

017
r 8, 2
[Trial] court paperwork wouldbbe used to determine
m e
epte
on S
if defendant hadea 5K1.1
v d
rchi
59 a
transcript/discovery
-502
o. 15

Other court document/proceeding
Other court document/proceeding

,N

oe
Other court document/proceeding
hn D
v. Jo
USA
Other courtcited in
document/proceeding

transcript/discovery
transcripts/discovery

Other court document/proceeding

transfer of inmate to attend court

Other court document/proceeding

trial testimony

Other court document/proceeding

trial testimony

Other court document/proceeding

trial testimony

Other court document/proceeding

Trial witness list

Other court document/proceeding

trial witness list

Other court document/proceeding

Under seal hearing in magistrate court

Other court document/proceeding

under seal not disclosed

Other court document/proceeding

witness disclosure

Other court document/proceeding

witness list

Other court document/proceeding

witness list

Other court document/proceeding

Witness lists

Other court document/proceeding

Witness lists

Other court document/proceeding

writ

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

73

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 422 of 497

Categories of Other Sources

Description

Other court document/proceeding

writ

Other court document/proceeding

writ

Other court document/proceeding

writted back

News

A newspaper article regarding the plea was published
in [redacted]. The article made reference to my client’s cooperation and named one of the person
against whom he cooperated.

News

[newspaper] report about trial

News

Newspaper

News

Newspaper article

News

Government Detention Motion - which was quoted
in news article

Talking to agents/debriefs/ government
disclosure

At initial arrest, deft was seen talking to agents by his
co-defendants.

Talking to agents/debriefs/ government
disclosure

Defendant at government’s request called drug distributor while he was under detention 017
,2
ber 8
Talking to agents/debriefs/ government
Defendant was identified tem
p because he came to the
n Se
disclosure
courthouse cfor ed o
hiv debriefs on days when he did not
ar
have 259
50 a scheduled court hearing.
. 15, No FBI advised PO/offender
Talking to agents/debriefs/ government
Doe
ohn
v. J
disclosure
USA
ed in
cit
Talking to agents/debriefs/ government
Government disclosure
disclosure
Talking to agents/debriefs/ government
disclosure

Government’s disclosure of the defendant’s cooperation in other unrelated cases.

Talking to agents/debriefs/ government
disclosure

Govt. revealed cooperation in preparation of trial

Talking to agents/debriefs/ government
disclosure

Jailhouse observation

Talking to agents/debriefs/ government
disclosure

Observed cooperating

Talking to agents/debriefs/ government
disclosure

questioning by FBI

Talking to agents/debriefs/ government
disclosure

The defendant provided [information] that was used
by law enforcement to contact the person. The law
enforcement contact was used as identification that
the defendant was a cooperator.

Talking to agents/debriefs/ government
disclosure

Trips out of jail to proffer, where no court hearing
was scheduled.

74

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 423 of 497

Categories of Other Sources

Description

Talking to agents/debriefs/ government
disclosure

Was pulled from the facility for multiple debriefs
with agents.

Talking to agents/debriefs/ government
disclosure

Was pulled from the jail and brought to meet with
agents.

Co-defendants/known

codefendant

Co-defendants/known

Co-defendant

Co-defendants/known

direct threat [from] father against his son in person

Co-defendants/known

Ex-boyfriend

Co-defendants/known

from a co-defendant

Co-defendants/known

info from other co-defendants

Co-defendants/known

info from others involved in case

Co-defendants/known

info from witnesses in case

Co-defendants/known

Information [received] from other defendants

Co-defendants/known

known cooperation

17
One defendant’s attorney told er 8,attorney for anthe 20
mb cooperation
other defendant of his Septe
[client’s]
on
ved
chi
Co-defendants/known
statements rby co-conspirators
59 a
-502
5
o. 1The defendant is one of many defendants in a large
Co-defendants/known
e, N
n Do
Joh
[redacted] gang prosecution. Cooperators in this
A v.
n US
gang are routinely murdered. This defendant has
ed i
cit
pleaded guilty and everything possible is being done
to assure his safety, including the use of sealed filings
and proceedings
Co-defendants/known

Co-defendants/known

The defendant self-identified himself as cooperating
against a co-defendant

Other

A 5K1.1 [motion] was filed but the defendant was
shot prior to the sentencing. It is no exactly clear as
to how the defendant was identified as a cooperator.

Other

extra-judicial knowledge

Other

Murdered due to cooperation

Other

narcotics traffickers in [redacted]

Other

Not sure. Was killed within a day or two of arrival at
prison.

Other

other

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

75

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 424 of 497

Categories of Other Sources

Description

Other

The defendant was believed to be cooperating (postindictment); daughter (who was believed to be an
anonymous source to law enforcement) was assaulted. I took proactive steps to prevent the disclosure of
sensitive documents.

Other

Unknown

Other

[Unknown]

Other

USAO submitted

Other

Was FBI Informant

d on

cited

76

Se

025

15-5

nD

. Joh

Av
in US

o.
oe, N

hive
9 arc

017
r 8, 2

be
ptem

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 425 of 497

Appendix E: Other Types of Harm or Threat to Witnesses
Categories of Other Harm

Description

Attempted murder

Attempt to Murder

Attempted murder

contract to kill witness

Attempted murder

Defendant [solicited] the killing of witness

Other

[missing comment]

Other

Agents developed information that the defendant was associated with a gang and was part of a plan to kill an ATF agent
and an AUSA.

Other

defendant was going to be a witness

Other

Disclosure of suspicion that person was a cooperator

Other

economic harm to family

Other

free world

Other

Other

Other

Other

Other
Other
Other
Other
Other

nD

. Joh

cited

Av
in US

017
r 8, 2

mbe
promise of gifts for favorable testimony
epte
on S
ived
arch
relocation
259
-50
o 15
same.
oe, N as mentioned earlier
Same person

The person was not a defendant in the particular criminal
action but was perceived by defendants as a cooperator. The
perceived witness was in custody on a different matter.

Other

The witness was the defendant who cooperated and testified

Other

under seal

Internet/community/general
threats

3rd party [harassment]

Internet/community/general
threats

being ostracized by defendant’s family and community

Internet/community/general
threats

[harassment] of sex trafficking victim by posting pictures

Internet/community/general
threats

identity of cooperator posted on [YouTube]

Internet/community/general
threats

nonspecific threats via social media

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

77

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 426 of 497

Categories of Other Harm

Description

Internet/community/general
threats

threat that defendant would sue the witness for defamation
or other civil money damages or that the witness could be
prosecuted for perjury if willing to testify against the defendant

Internet/community/general
threats

threatened by defendant

Internet/community/general
threats

threatened multiple times

Property damage

destruction of property

Property damage

homes and automobiles [shot] up while occupied

Property damage

The witness’ apartment was burned

Property damage

Witness’ home was riddled with bullets from a high-powered
weapon and a child was narrowly missed on the eve of the
witness/ testimony.

Existing categories

Existing categories

In this case, the [threatening] conduct occurred prior to the
arrest and was part of the criminal conduct/charges. There
was a threat of physical harm to a potential witness.
017
r 8, 2
mbe
threats of murder
epte
on S
ved
rchi
59 a
-502
o. 15
oe, N

nD

. Joh

cited

78

Av
in US

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 427 of 497

Appendix F: Other Locations at the Time of Harm or Threat to
Witnesses
Categories of Other Locations

Description

Not in custody

A victim not under Court supervision and not in custody

Not in custody

abroad

Not in custody

At his workplace

Not in custody

at home

Not in custody

at home

Not in custody

at home - not accused

Not in custody

at large

Not in custody

at [liberty] with no pending charges

Not in custody

at liberty

Not in custody

at place of employment

Not in custody

at residence

Not in custody

Case not yet charged

e

S
[civilian] witness
d on
chive
r
59 a
[civilian] -502
witness
. 15
, No
Doe
ohn [civilian] witness
.J

Not in custody
Not in custody
Not in custody
Not in custody d in
cite

USA

017
r 8, 2

be
ptem

v

Community

Not in custody

community

Not in custody

Community

Not in custody

Community

Not in custody

cooperating witness

Not in custody

FBI agent

Not in custody

Free

Not in custody

free

Not in custody

Free

Not in custody

Free

Not in custody

Free from custody

Not in custody

free world

Not in custody

free world

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

79

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 428 of 497

Categories of Other Locations

Description

Not in custody

Had not yet been charged. She was cooperating with the government.

Not in custody

Home

Not in custody

home

Not in custody

Home

Not in custody

Home

Not in custody

home - not a co-conspirator

Not in custody

Home and Work

Not in custody

home and work

Not in custody

Home and Work

Not in custody

Home and work

Not in custody

Home and Work-FBI Case Agent

Not in custody

Home County

Not in custody

in community
in community/not [an] offender tember
ep
on S
ved
in his/her community i
h
9 arc
5025
-community
in his/her
o. 15
e, N
n Do
Joh
in home
A v.

Not in custody
Not in custody
Not in custody
Not in custody
in US
cited
Not in custody

17
8, 20

In home or automobile

Not in custody

In one case a [defendant’s] former lawyer was threatened with
[murder]. In another a bank robbery witness was killed two
weeks post trial. Was a brother of the defendant who was acquitted.

Not in custody

in the community

Not in custody

in the community

Not in custody

informant was not in custody; he was a paid CI

Not in custody

living at home

Not in custody

living at home

Not in custody

living at home

Not in custody

living at home

Not in custody

living in the community where the other defendants lived

Not in custody

Living with a suspect

Not in custody

living with Defendant [(fiancée)]

80

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 429 of 497

Categories of Other Locations

Description

Not in custody

lured away from her home by defendant

Not in custody

no pending charges

Not in custody

No pending charges

Not in custody

non-defendant

Not in custody

non-incarcerated family member of witness and witness

Not in custody

non-incarcerated family members

Not in custody

normal residence

Not in custody

Not arrested

Not in custody

not arrested

Not in custody

Not charged

Not in custody

not charged

Not in custody

Not charged

Not in custody

Not charged

Not in custody
Not in custody
Not in custody
Not in custody
Not in custody
cited
Not in custody

n

. Joh

Av
in US

not charged. cooperating with government 2017
,
ber 8
ptem
not facing charges
Se
d on
chiveCUSTODY
NOT IN ANY 59 ar OF
KIND
502
. 15,N
not o
Doe in custody
Not in custody
not in custody

Not in custody

Not in custody

Not in custody

Not in custody

Not in custody

Not in custody

Not in custody

not in custody- not charged

Not in custody

not in custody though had an attorney and was attempting to
cooperate

Not in custody

Not in custody.

Not in custody

not in [custody]

Not in custody

Not under Court supervision or custody

Not in custody

On street

Not in custody

on the street

Not in custody

On the street.

Not in custody

on the streets

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

81

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 430 of 497

Categories of Other Locations

Description

Not in custody

on the streets

Not in custody

on the streets

Not in custody

out

Not in custody

out of custody

Not in custody

out of custody

Not in custody

out of custody witness

Not in custody

public

Not in custody

some witnesses were not charged.

Not in custody

Someone fired a gun at a confidential informant in a bar after his
picture was posted online identifying him as the source for a
defendant’s indictment

Not in custody

the assailant and witness were not locked up

Not in custody

The threat of harm occurred prior to the initial arrest.

Not in custody
Not in custody
Not in custody
Not in custody

n

. Joh

Not in custody in USA v
cited
Not in custody

The [threatening] conduct occurred prior to the initial arrest of
the defendant.
017
r 8, 2
mbe
The witness was not charged withpte
e a crime
on S
ved
r hi
The witness was9notccharged with any crime
5 a
-502
. 15
,N
the o
Doe witness wasn’t in the criminal [system]
trial witness, not in custody
Uncharged

Not in custody

under investigation

Not in custody

under investigation

Not in custody

[unindicted] witness not in custody

Not in custody

[non-incarcerated] witness

Not in custody

[non-incarcerated] witness

Not in custody

was a trial witness

Not in custody

was a witness

Not in custody

was just witness

Not in custody

Was not charged

Not in custody

while in the community

Not in custody

Witness in Community

Not in custody

Witness not charged

Not in custody

Witness not charged

82

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 431 of 497

Categories of Other Locations

Description

Not in custody

Witness not charged

Not in custody

Witness not in custody

Not in custody

witness not in system

Not in custody

witness was a citizen

Not in custody

Witness was a [redacted] Police officer in the murder of a [law
enforcement officer]. He testified at pre-trial hearings in a hood
and with the courtroom closed. The case involved in the death of
the agent and the elimination of 3 to 5 other [redacted] that
were aware of the circumstances leading up to the [officer’s]
killing.

Not in custody

witness was an informant and a police officer giving information
about police corruption

Not in custody

witness was an informant living in society

Not in custody

witness was an informant who was shot at

Not in custody

witness was at liberty

Not in custody

witness was child victim

Not in custody

witness was the victim

Not in custody
Other
Other
Other

cited

Se

nD

. Joh

Av
in US

d on

ive
witnesses not in9 arch
system
25
-50
o. 15
[missing comment]
oe, N

017
r 8, 2

be
ptem

a business owner
co-defendants, criminal

Other

confidential source

Other

cooperator

Other

court-ordered discovery

Other

defense attorneys were threatened

Other

For family members none of these applies

Other

I had a person convicted of sexual assault threaten the victim’s
family after a jury verdict

Other

in courtroom testifying

Other

in [redacted]

Other

in state court proceeding

Other

Individual was a member of organized crime.

Other

known to defendant

Other

paid cooperator

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

83

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 432 of 497

Categories of Other Locations

Description

Other

returned to the danger zone

Other

still in the conspiracy

Other

The person was a cooperating witness for the government who
may have been a coconspirator as well as friend of defendant but
do not know if government ever charged cooperator.

Other

under seal

Other

was a confidential informant

Other

witness protection

Existing category

It is my understanding that the witness was on supervised release

Existing category

Post conviction release

Existing category

Post-plea pre-sentence release

Existing category

nD

. Joh

cited

84

Av
in US

the witness, a gang member, testified for the government in a
trial before one of my colleagues. The witness would have been a
witness in my court in a case related to similar issues, but he was
murdered [redacted]. The witness was not in custody at the time
of his death, but I believe he was on supervised 017
release.
r 8, 2
mbe
epte
on S
ved
rchi
59 a
-502
o. 15
oe, N

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 433 of 497

Appendix G: Other Sources to Identify Witnesses
Categories of Other Sources

Description

Suspicion

all were by word of mouth that he was a cooperator

Suspicion

jail house talk

Suspicion

rumor

Suspicion

suspicion of [co-conspirators]

Suspicion

The witness was murdered [because] it was believed
that he was a snitch

Suspicion

word of mouth

Suspicion

word on street

Other court document/proceeding

affidavit

Other court document/proceeding

All documents reflecting cooperation are sealed.

Other court document/proceeding

announced as a witness during the trial

Other court document/proceeding

ATF Agent’s Report

7
Audio tapes that were used to charge 01 obstruction
r 8, 2 an
mbe
count.
epte
on S
ved
rchi
believe9child protective services call disclosed coop5 a
-502
eration
o. 15

Other court document/proceeding
Other court document/proceeding

,N

oe
hn D
Other court document/proceeding
v. Jo
A
in US
Other courtcited
document/proceeding

case is pending; witness roles revealed in discovery
Change of plea notice on ECF

Other court document/proceeding

co-defendant discovery

Other court document/proceeding

complaint

Other court document/proceeding

Court testimony

Other court document/proceeding

Court testimony

Other court document/proceeding

court-ordered discovery

Other court document/proceeding

court-ordered discovery

Other court document/proceeding

Criminal Complaint

Other court document/proceeding

Criminal Complaint

Other court document/proceeding

criminal complaint

Other court document/proceeding

Deduced from docket sheet

Other court document/proceeding

Defendant learned that witness appeared before
grand jury

Other court document/proceeding

discovery

Other court document/proceeding

discovery

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

85

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 434 of 497

Categories of Other Sources

Description

Other court document/proceeding

discovery

Other court document/proceeding

discovery

Other court document/proceeding

discovery

Other court document/proceeding

discovery

Other court document/proceeding

Discovery

Other court document/proceeding

discovery

Other court document/proceeding

Discovery

Other court document/proceeding

discovery

Other court document/proceeding

Discovery

Other court document/proceeding

Discovery

Other court document/proceeding

discovery

Other court document/proceeding

Discovery

Other court document/proceeding

discovery

Other court document/proceeding

Discovery

Other court document/proceeding

Discovery

d on

discovery rchive
9a
5025
. 15o Discovery

Other court document/proceeding

017
r 8, 2

be
ptem

Se

Other court document/proceeding , N
oe
hn D
v. Jo
Other court document/proceeding
A
in US
cited
Other court document/proceeding

discovery

Other court document/proceeding

Discovery

Other court document/proceeding

discovery

Other court document/proceeding

Discovery Documents

Other court document/proceeding

Discovery documents — Agent reports

Other court document/proceeding

discovery material

Other court document/proceeding

Discovery material

Other court document/proceeding

discovery materials

Other court document/proceeding

discovery materials

Other court document/proceeding

Discovery provided to defense counsel for the person against whom the witness testified.

Other court document/proceeding

Discovery revealed identity

Other court document/proceeding

discovery to defendant

Other court document/proceeding

Docket Sheets

Other court document/proceeding

fact of sealed filings

86

Discovery

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 435 of 497

Categories of Other Sources

Description

Other court document/proceeding

fact of sealed filings

Other court document/proceeding

FBI 302

Other court document/proceeding

FBI 302

Other court document/proceeding

FBI 302 and trial testimony

Other court document/proceeding

Grand Jury testimony & discovery

Other court document/proceeding

grand jury transcript

Other court document/proceeding

grand jury transcripts/discovery

Other court document/proceeding

Grand Jury Transcript

Other court document/proceeding

Gvmt witness list

Other court document/proceeding

identified in pretrial

Other court document/proceeding

identity of informant made clear by discovery

Other court document/proceeding

indictment

Other court document/proceeding
Other court document/proceeding

Informant was identified after video surveillance was
produced by the [government] in discovery
017
informant’s role made clear in discovery
r 8, 2
mbe
e
Sept
Interview reportd on
ve provided in discovery
rchi
59 a
Investigation reports
-502
o. 15

Other court document/proceeding
Other court document/proceeding

,N

oe
Other court document/proceeding
hn D
v. Jo
A
in US
cited

Jencks Act Material turned over in advance of trial
despite protective orders prohibiting defendant from
keeping a copy in the jail

Other court document/proceeding

[Jencks] r. 16 materials

Other court document/proceeding

Letter from USAO to Defense Counsel

Other court document/proceeding

police report

Other court document/proceeding

police report

Other court document/proceeding

police report describing witnesses cooperation provided in discovery

Other court document/proceeding

Police reports

Other court document/proceeding

police reports

Other court document/proceeding

Police Reports and proffer statements

Other court document/proceeding

Possible the [redacted] Police report when one of the
suspects was apprehended in [redacted].

Other court document/proceeding

Presentence report

Other court document/proceeding

presentence report

Other court document/proceeding

pretrial service report

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

87

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 436 of 497

Categories of Other Sources

Description

Other court document/proceeding

pretrial witness list

Other court document/proceeding

Proffer report provided in discovery

Other court document/proceeding

Prosecutor’s Statement and copies of PSI

Other court document/proceeding

PSR

Other court document/proceeding

PSR

Other court document/proceeding

PSR

Other court document/proceeding

PSR

Other court document/proceeding

PSR

Other court document/proceeding

PSR

Other court document/proceeding

Public testimony as [cooperating witness]

Other court document/proceeding

recordings

Other court document/proceeding

related state court documents

Other court document/proceeding

role of witness made clear in discovery

Other court document/proceeding

role of witness made clear in discovery 17
0
r 8, 2
rule to show cause hearingembe
pt
Se
d on
saw investigation information
chive
9 ar
5025
. 15o sealed trial witness list

Other court document/proceeding
Other court document/proceeding
Other court document/proceeding , N
oe
hn D
v. Jo
Other court document/proceeding
A
in US
cited
Other court document/proceeding

search warrant affidavit

Other court document/proceeding

sentencing docs

Other court document/proceeding

state complaint

Other court document/proceeding

state complaint and state search warrant

Other court document/proceeding

State court discovery and plea documents.

Other court document/proceeding

subpoena

Other court document/proceeding

testified against codefendant

Other court document/proceeding

Testified at trial

Other court document/proceeding

Testified in a Court Proceeding

Other court document/proceeding

Testifying

Other court document/proceeding

testimony

Other court document/proceeding

Testimony at hearings

Other court document/proceeding

Testimony at probable cause hearing

Other court document/proceeding

testimony in trial of co defendant

88

search warrant

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 437 of 497

Categories of Other Sources

Description

Other court document/proceeding

testimony of the witness

Other court document/proceeding

The witness was threatened and then badly beaten
following his testimony before me

Other court document/proceeding

The witness was verbally threatened in the [courthouse], and was targeted as a [snitch] by use of Facebook and Instagram

Other court document/proceeding

the writ that identified him as a government witness
was circulated at the jail

Other court document/proceeding

They were identified by not being publicly filed like
codefendants’ documents

Other court document/proceeding

transcript of trial

Other court document/proceeding

trial

Other court document/proceeding

trial testimony

Other court document/proceeding

Trial testimony

Other court document/proceeding

trial testimony

Other court document/proceeding

trial testimony

017
r 8, 2

be
ptem

trial testimony
Se
d on
chive
Other court document/proceeding
trial259 ar
transcript
50
. 15Other court document/proceeding oe, No trial witness list
nD
. Joh
Other court document/proceeding
withdrawal from the case
SA v
in U
cited
Other court document/proceeding
withdrawal from the pending case
Other court document/proceeding

Other court document/proceeding

witness list provided in advance of trial pursuant to
court order

Other court document/proceeding

Witness lists

Other court document/proceeding

Witness lists

Other court document/proceeding

Witness Statements

Other court document/proceeding

witness testified at trial

News

newspaper

Co-defendants/known

circumstances of drug sale

Co-defendants/known

cooperating co def

Co-defendants/known

defendant knew witness had disclosed information

Co-defendants/known

Defendant knew witness was present at time of
crime and observed events

Co-defendants/known

in a [redacted] Mafia case the word got out that the
wife of a co-conspirator was going to be a witness
and she was [targeted] to be killed.

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

89

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 438 of 497

Categories of Other Sources

Description

Co-defendants/known

known to defendant

Co-defendants/known

known to defendant

Co-defendants/known

known to target

Co-defendants/known

known to target

Co-defendants/known

Named co-defendant in indictment

Co-defendants/known

source disclosure

Co-defendants/known

statement by defendant

Co-defendants/known

The witness was previously employed by the defendant, and he knew she planned to testify against him.

Co-defendants/known

unindicted co-conspirators

Co-defendants/known

usually identified as family members of the cooperating defendant

Talking to agents/debriefs/ government
disclosure

Observation in jail

Talking to agents/debriefs/ government
disclosure
Other
Other

o.

e, N

Other

.

cited

Av
in US

Do
John

Seen talking with authorities on a routine matter
017
r 8, 2
mbe
epte
o
[missing comment]n S
ved
hi
9 arc
His 25
-50 lawyer disclosed
15
I meant to share the following information as it relates to type of harm experienced by the witness. The
victim was a witness in a criminal case in which her
son was murdered. The victim (the young man’s
mother) was raped and nearly killed.

Other

Not sure how Marshal Service learned of the hit but
the suspect was apprehended across the street from
the court house at the time the [witness] was testifying,

Other

Not sure. he was killed within a day or two of arrival
at prison

Other

on the streets

Other

Other

Other

other

Other

Other

Other

same as mentioned earlier

Other

under seal

Other

Was detained as a material witness in alien smuggling case.

90

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 439 of 497

Appendix H: Other Steps to Protect Cooperation Information
Other Steps Taken, Specified by Chief District Judges
Info regarding cooperation at plea or sentencing heard at sidebar and then sealed
Not mailing out PSRs on request.
sealed portions of transcripts in every guilty plea and sentencing
The cooperation provisions of a plea agreement are in a separate document, not filed with the
Clerk of Court, and maintained only [by] the judge and the prosecutor and the defense attorney.
Also, the prosecutor’s sentencing memo describing cooperation is not filed—indeed even a noncooperator’s sentencing memo is not filed, so that there is no way to determine by deduction that a
defendant “must” be a cooperator. Finally, any sentencing transcript is redacted for cooperating
information before it is published on the docket.
unaware of clerk’s procedures
US Attorney has taken steps to remove references to cooperation in hearings and documents.
Court is discussing better ways to protect PSRs.
We have levels of access and access restriction and use those on a case by case basis.
017
r 8, 2
mbe
epte
on S
ved
rchi
59 a
-502
o. 15
e, N
n Do
Joh
A v.
n US
i
cited

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

91

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 440 of 497

d on

nD

. Joh

cited

Av
in US

o.
oe, N

15-5

025

hive
9 arc

017
r 8, 2

Se

be
ptem

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 441 of 497

Appendix I: Open-Ended Comments
Categories
Missing

Open-Ended Comments
[missing comment]

Nothing to report

[During] my tenure as a judge in the [redacted district],
none of the defendants/witnesses in any of the criminal
cases I presided over were ever harmed or threatened to my
knowledge.
Nothing to report
I have handled only one criminal case in the past 8 years—
and there were no threats in that one. Sorry I can’t be of
any help.
Takes issue with the survey
I am extremely uncomfortable participating in this survey.
Your questions cross or come perilously close to crossing
the line into attorney-client confidentiality. Had I possessed
concrete information concerning harm or threats, I probably would have decided to assert the privilege. A lawyer is
not likely to have acquired the type of information the survey seeks except by privileged communication, especially
given the parameters the survey places on how to answer
the question. It does not solve the problem to promise that
7
the information will remain confidential;, 201 disclosure is
r 8 the
mbe answered. In addi[to] be complete once the question is
pte
n Se
tion, your surveychived o
form demanded specific numerical anr
swers. I-50259 akeep records concerning this issue. So, in
do not
. 15
No
, particular, my answer to the question “how many requests
Doe
for file materials to show that they were not a cooperator?”
ohn
v. J
USA
is an estimate based upon my best recollection of the numed in
cit
ber of inquiries I might have received over the last several
years. In a three year parameter, the number may very well
be “1”. Finally, in my experience, it is virtually impossible
to quantify refusals to cooperate based upon threats to personal safety. There are a myriad of moral, ethical, legal and
other factors, different in each case, that a client might
weigh—and properly so—in reaching a decision about
whether to provide information concerning associates.
Because the question of whether to cooperate is intensely
and uniquely personal, many lawyers, myself included, consider their fiduciary duty to be met by listing those factors
and letting the client reflect upon them alone, or with loved
ones. Decisions, as far as I can tell, are made after balancing all such factors. It is very rare that the decision is based
upon any single one.

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

93

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 442 of 497

Categories

Open-Ended Comments

General comment about harm in
prison/prison culture

The prison environment is very difficult and tense, both in
my [redacted] and [redacted]. Paperwork is demanded, and
people - even people who exerted a fair amount of power
on the street - are genuinely intimidated.
Procedures for protecting defendOn [redacted], [redacted] adopted Standing Order Regardants; general comments about the
ing Sealing Documents Filed in Criminal Matters. The Orsources to identify cooperator
der provides prior authorization for the Clerk of Court to
file, under seal, documents from pro se defendants seeking
reduction of sentence based on cooperation. Filings by
counsel under 5K1.1, Rule 35 and section 3553(e) must be
accompanied by a motion to seal. [redacted]
Procedures for protecting defendThe threatened person wrote the court advising of a threat.
ants
The court [conferred] with the defense atty and the Government atty. Also the court called the warden of the prison
in the presence of the attorneys and made them aware of
the alleged threat
I generally will ask defendants whether they or any member
Procedures for protecting defendants; general comment about the
of their family has been threatened as a part of the plea colfrequency of harm
loquy in an [appropriate] case. Not infrequently they will
either answer yes or no. If I think from the facts or [circumstances] that it is likely that threats have occurred I will ask
017
whether they would tell me truthfully er 8, 2 such a threat
whether
mb
had been made. It happens [a epte in drug and immigration
lot]
on S
related cases. archived
9
Details of a specific incident
I am1aware 5 a large drug conspiracy case that involved a
502 of
. 5, No
Doe threat to a prosecutor and myself. The prosecutors in the
ohn
case informed me that threats had been made against cov. J
USA
defendants in the case.
ed in
cit
Details of a specific incident
I had a large number of defendants in a heroin case which
involved two murders and several threats.
General comment about the freI have had 2 or 3 defendants explain why, as former felons,
quency of harm
they possess weapons all the while knowing that doing so is
a violation of their [supervised release]. On these occasions,
the defendants have persuasively explained to me that gang
members or other criminal actors threaten to kill the defendants if they will not re-engage with gang/criminal activities. They knowingly possess guns in violation of [supervised release] to protect themselves and family. This is not
linked to perceived or actual cooperation with the government, but is responsive to the “additional information
about harm or threats of harm...in the past three years.”

94

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 443 of 497

Categories

Open-Ended Comments

Procedures for protecting witnesses

It is difficult to determine how many of our witnesses were
harmed or threatened as a result of their cooperation in our
cases. We take preventive measures to assure witness safety
and often relocate witnesses as soon as they begin cooperating. There are times when our witnesses are threatened in
their communities because they are suspected of cooperating or they are recognized by the defendant and threatened
or harmed. When that happens we immediately bring them
in and offer them relocation services. It is a rare case when
our witnesses are identified as cooperators through court
proceedings (other than at trial) or court documents because all such documents are placed under seal. Because the
[redacted district] has a high witness retaliation rate, we
wait until the last possible moment to disclose the names of
our witnesses and cooperators.
It seems the perception of harm/ threat is greater earlier in
the process, due to the associates co-defendants have made.

General comment about the frequency of harm

Most threats (real or perceived) are in drug cases. Defense
attorneys routinely ask that absolutely no record of their
clients’ cooperation be shown anywhere in the record, including plea agreements and 5K1 motions. 017 defendant
One
8, 2
was so worried about being identifiedr as a snitch that he
mbe
epte
on statutory mandatory minimum
asked to be sentenced ed his S
v to
hi
[redacted] 259 arc
imprisonment) even though he qualified for a
-50 at sentencing. He had been told by other de5K1 15
o. motion
e, N
n Do fendants that when he showed up at his designated BOP
Joh
A v.
facility, he would be asked to provide his Pre-Sentence Ren US
i
cited
port or J&C as “proof” as to whether or not he was a rat.
1) Social media has been used to post discovery. 2) We had
Details of a specific incident; genone defendant who managed to get a criminal associate
eral comment about harm in prison/prison culture; general comment hired at the law firm of a co-defendant out of desperation
to determine whether anyone was cooperating, including
about the frequency of harm; general comments about the sources to the co-defendant. 3) Inmates regularly abuse “legal mail”
privileges to send written threats to witnesses and judges
identify cooperator
while in BOP custody; 4) We had a defendant go pro se in
an attempt to undermine a protective order which limited
dissemination of discovery; 5) We had to relocate a witness
and their entire family after he was [threatened] at gunpoint; 6) We had a witness who was shot [at] by two males,
each [carrying] a gun. Had they not missed, he would have
been dead; 7) threats against judicial officers have required
recusal of the USAO, necessitating appointment of an
SAUSA and costly travel and lodging expenses. In one such
case, our AUSA was required to make [redacted] overnight
air trips to another District and was out of town in a hotel
during [redacted] [a] long trial.
General comment about the frequency of harm; details of a specific
incident; general comment about
harm in prison/prison culture; general comments about the sources to
identify cooperator

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

95

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 444 of 497

Categories

Open-Ended Comments

General comment about harm in
prison/prison culture; general
comment about the frequency of
harm

A BOP investigator in a civil rights case testified in my
court that upon entry into the FCIs he has worked in, new
inmates are routinely and quickly confronted and made to
produce their sentencing “paperwork” by a deadline to
prove that they did not cooperate with authorities. The
inmates are told that if they cannot do so, they should seek
protective custody (usually by requesting transfer into the
“secure” (maximum security) unit, or face violence from
other inmates. An inmate corroborated this account.
Details of a specific incident; genA co-defendant in a multi-defendant drug conspiracy
eral comments about the sources to flipped and testified for the Government. He was being
identify cooperator; procedures for
housed in the Metropolitan Correctional Center on a difprotecting defendants
ferent floor from the other defendants. One day during
trial, the defendant and the cooperator were brought over
in the same van.
Details of a specific incident; proce- A defendant in a drug conspiracy indictment before anothdures for protecting defendants
er judge in this district conspired with others to kidnap 2
defendants on pretrial release with cases before me, have
the defendants transported to [redacted], then murdered.
The 2 defendants cooperated with law enforcement, one
posing for pictures as having been shot in a bathtub, and
17
the government filed 5K motions forber 8, 20
reduction.
m
ept
Details of a specific incident
A defendant’s home was burnededown when his cooperaon S
ved A mother and her daughter (both
tion was made archi
known.
9
witnesses) 25 threatened with a gun and were directed to
-50were
15
No.
e, submit affidavits prepared by the defendant regarding why
n Do
Joh
they would not testify before the grand jury. A defendant
A v.
n US
made it known that anyone who testified against him
ed i
cit
would be shunned in a small rural [community]. In a case
in which a member of the conspiracy was murdered for
stealing drugs, cooperators described pressure from Defendant and his family members to not submit to pressure
from government.
Procedures for protecting defendAgain, all the cases were filed under seal
ants
Procedures for protecting defendAll of my knowledge is anecdotal, and non-specific. We
ants
work hard to use preventive measures identified above to
avoid these situations.
General comment about the freAlmost all inmates request Docket. I am certain they are
quency of harm
pressured to get that information but I know of no actual
threats of harm that leads them to make this request.
General comment about the freAlmost all of our clients who are sentenced to incarceration
quency of harm; general comment
call the office from the designated institution and request
about harm in prison/prison culture some court document to prove that they have not cooperated.
Nothing to report
Although the issue is occasionally raised in criminal cases I
believe that the threat to family/friends was only remotely
credible on one [occasion] and the specifics were lacking.

96

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 445 of 497

Categories

Open-Ended Comments

Details of a specific incident; procedures for protecting defendants;
general comment about harm in
prison/prison culture; general
comments about the sources to
identify cooperator

An offender under supervision reported being assaulted on
more than one occasion while in BOP custody. Another
offender under supervision reported being severely beaten
while in BOP custody and threatened several times while on
supervised release. One officer reported preparing presentence reports for a [redacted] defendant drug conspiracy
where numerous defendants cooperated. The cooperation
activities were only disclosed through confidential memorandums and sentencing memorandums filed under seal.
The case agent and a defense attorney reported one cooperating defendant and his/her family received numerous violent threats from other codefendants and members of the
community, which caused the cooperating defendant’s
family to move to another city. The defendant’s name and
the words “rat” or “snitch” was written numerous times on
the walls of the Marshals’ holding cells.
Nothing to report
As noted we have no documented instances of harm or
threats in these types of cases so they were neither higher
nor lower from one year to the next.
Takes issue with the survey
Asking how many defendants and witnesses refused cooperation is asking for an unknown, because we don’t know if
017
a defendant or witness was interested in cooperating or why
r 8, 2
mbe
they chose not to do so. nWe pte do not know whether
e also
o S
threats were directedvtodpotential witnesses.
chi e
9 ar
Details of a specific incident
[redacted] 25
50 I presided over a trial of a heroin kingpin. All of
. 15, No
Doe his co-defendants pleaded guilty and none testified against
ohn
him. However, one of the co-defendants had [a] death
v. J
USA
threat from a [redacted] cartel. This may have been because
ed in
cit
the co-defendant was suspected of cooperating with the
government, although the co-defendant did not have a cooperation agreement provision in his written Plea Agreement.
Policy comments
Be [sensitive] to the public’s right to know about the details
of criminal cases even those that involve a potential for
harm to cooperators.
General comment about the freBefore taking senior status, I had a fairly heavy criminal
quency of harm; details of a specific caseload. Given the number of cases, it is difficult for me to
incident; general comments about
remember all the ones in which cooperating defendants and
the sources to identify cooperator
witnesses received threats. In 2014, for example, I held [redacted] sentencing hearings. Very few of those involved
simple immigration cases. Most were drug conspiracies,
fraud type offenses, and firearms offenses. There are often
concerns in the drug cases about retaliation against cooperators. The drug gangs do their best to obtain court documents indicating who cooperates and who does not. I am
sure that I have had many criminal defendants, their family
members, and witnesses in criminal cases who have received threats. One was the victim of a drive-by shooting in
retaliation.

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

97

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 446 of 497

Categories

Open-Ended Comments

General comment about the frequency of harm

Details of a specific incident; procedures for protecting defendants

General comment about the frequency of harm; general comment
about harm in prison/prison culture; general comments about the
sources to identify cooperator

Details of a specific incident; general comment about harm in prison/prison culture
General comment about the frequency of harm; general comment
about harm in prison/prison culture

Belligerent attitude among and between defendants and
their respective witnesses has intensified; threatened murders of relatives of defendants is much more common and
whether they have occurred may not be available information to the Court. Whatever “restraints” on behavior
that may have previously existed, they have vanished!
Both of the offenders experienced threats of physical harm
to self and family while on supervised release; and didn’t
request or receive protective custody of special housing unit
placement.
Clients call to request PSR and court documents to document that they are not cooperating. I have recently heard
that convicts are more apt to be requested info from other
[redacted] inmates. I question whether convicts from [redacted] cooperate after conviction and threaten or force
other [redacted] inmates to provide information proving
that they are not “rats”.
co-defendant died under suspicious circumstances while at
the detention center

Co-Defendants and witnesses who cooperate are often
017
threatened even though their cooperation ,is to be confidenr8 2
mbe
e
tial. [Occasionally] actual physical violence occurs. There is
Sept
d on
ve[intimidation] present in the deteni
clearly an elementhof
9 arc
tion and5025 facilities.
- prison
15
No.
General comment about harm in Doe, Comments offered by AUSAs: / / / Comment 1: Defense
n
h
attorneys often ask about whether it is possible to leave
prison/prison culture;SA v. Jo
general
nU
cooperation out of plea agreements or to seal plea agreecomment aboutdthe frequency of
e i
cit
ments. Defendants who are considering cooperation are
harm; procedures for protecting
defendants; procedures for protect- concerned about the presence of sealed 5K motions being a
red flag for cooperator status with other BOP inmates, and
ing witnesses; details of a specific
many fear general reprisal upon reaching the BOP. The
incident; general comments about
above case is a good example of this prisoner notion of bethe sources to identify cooperator
ing considered “soft” if one is housed in prison with a
“snitch.” The defendant was suspected of having a gang
connection to the ultimate instigator of the violence, but
his accomplices were motivated to help simply in order to
remove a cooperator from their midst, or to “check the
snitch off the block.” / / Comment 2: The threat of harm is
always a major issue in prosecuting gang cases. It is difficult
to determine when there have been actual threats that we
do not know of, and when the reluctant witness fears retribution in the future, but nothing has been threatened yet.
In general, a substantial number of potential witnesses to
gang violence appear nervous about cooperating, and it
takes a great deal of effort to get people to cooperate. / /
Comment 3: We are seeing an increase in defense attorneys
telling us that their clients don’t want to cooperate nor do
they want us to put a cooperation provision in their plea
agreements – and are [leery] of sealed entries in their dock-

98

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 447 of 497

Categories

Open-Ended Comments

et sheets because when they get to prison, the cooperation
or sealed entries are taken to mean they are snitches. Not
sure if they are concerned only about harm to themselves,
but the harm to their families, especially those back home
in [redacted]. / / Comment 4: I have one defendant who
cooperated in a state case. He was never explicitly threatened, but life on the street doesn’t require explicit threats.
When we first met this defendant he refused to discuss the
source of the counterfeit currency he was caught distributing. In fact, he got it from some gang members in [redacted] area, but wouldn’t discuss it with us. He did tell us
that he wouldn’t talk about the currency because he knew
that members of the gang would come after his mother. He
was never threatened, but there was no need of a threat. / /
I don’t know exactly what the survey is trying to capture,
but it’s missing a big problem. There need not be an actual
threat to shut down cooperation, as the above example
shows. I recall other anecdotes but they’re older than three
years. / / Comment 5: Threats from the Cartels in [redacted] continue to be an issue. One defendant and her children were forced to flee and face prosecution here because
017
of threats to her regarding possible cooperation of her and
r 8, 2
mbe same case has been
her husband. A material witness tin that
ep e
on S
vedthe Immigration Court out of [repursuing asylumrchi
from
a
dacted]. 50259
-/
15
No.
General comment about the fre- Doe, cooperating defendants who are incarcerated are routinely
n
Joh
quency of harm; general comment
asked to show their plea agreements to prove they are not
A v.
n US
about harm ined i
prison/prison culcooperating with the government
cit
ture; general comments about the
sources to identify cooperator
Details of a specific incident
[redacted], who agreed to cooperate with the government,
was murdered the very night of her first interview. Two
defendants in a multi-defendant drug conspiracy case were
charged with her murder. One was convicted by jury of
murder, one pleaded guilty to the murder charge.
Defendants are frequently confronted and asked to provide
General comment about harm in
their Docket Sheet upon arrival at their BOP facility. That
prison/prison culture; general
Docket Sheet is then examined by other inmates for sealed
comment about the frequency of
documents that create “gaps” in the Docket Sheet sequential
harm; policy comments; general
numbering. Any gaps are viewed with suspicion--as the incomments about the sources to
mates usually correctly assume those are sealed motions, plea
identify cooperator
agreements, orders, and memorandum related to cooperation. The defendant is then labeled a cooperator. This forces
the defendant into protective custody, or leads to assaults,
harassment, threats, and other behavior. I have tried to work
with BOP Legal Counsel to ban BOP inmates from having
Docket Sheets (much like the BOP bans PSRs, which were
excluded from inmate possession for similar reasons). I have
not heard back from BOP legal counsel on the issue.

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

99

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 448 of 497

Categories

Open-Ended Comments

General comment about harm in
prison/prison culture; general
comment about the frequency of
harm; details of a specific incident;
general comments about the
sources to identify cooperator

Defendants are threatened with bodily harm when they
arrive at their designated institutions by the prisoners that
are designated the “shot callers”. Before the defendants are
permitted to be on the yard, he must show his paper work,
(plea agreement and judgment). Some have requested their
presentence report which is not permitted in the possession
of an inmate. One defendant was beaten so bad, he was
hospitalized. He did not cooperate, but rather another inmate with the same name. The prisoners received the information after having had family and friends look up the
defendant’s name.
Demands by inmates for new inmates to supply a copy of their
General comment about harm in
Plea Agreements and sentencing transcripts for verification
prison/prison culture; general
that they were not cooperators. Failure to provide the required
comments about the sources to
information meant they were considered to be “rats”
identify cooperator
Details of a specific incident; proce- During our office’s prosecution of multiple defendants who
dures for protecting witnesses; pro- were part of a local [redacted] gang, a cooperating witness
cedures for protecting defendants
(“CW”) was threatened with death, and so were members
of his family in [redacted]. The Government arranged for
members of the CW’s family to be brought to the United
States for their safety. Following their arrival, 7 Governthe
1
8, 20
ment provided funds for the CW’serfamily members to
mb
change residences due to n Septe
additional threats from the deo
d
fendants. During chiveprosecution, eight of the defendants
ar this
259 with the Government sought and received
who 15-50
cooperated
No.
oe, custodial wit-sec protection due to likely retaliation and
nD
threat assessment. / / During our office’s investigation of
. Joh
SA v
U
several gang members of [redacted] descent, 3 cooperating
ed in
cit
defendants were threatened while in custody. / / During our
office’s prosecution of several corrupt police officers involved in illegal drug activities, the confidential informant
(“CI”) was threatened via text message by one of the defendants. Prior to receipt of the threat, the Government had
already arranged for the CI to be relocated out of state for
his protection. /
Details of a specific incident; proce- Each of the cases that I have had involving witnesses have
dures for protecting witnesses; pro- been victims of domestic violence where the defendant is
cedures for protecting defendants
on supervised release and I am informed that the defendant
has threatened the victim. It is brought to my attention
through a supervised release revocation report. The case
with the cooperating defendant being threatened and put
into protective custody was also brought to my attention
due to a pretrial services officer informing me.
Policy comments; general comment Electronic dissemination of case information, particularly
when informants are involved, is problematical for incarabout the frequency of harm; general comments about the sources to cerated defendants. It makes motion and appellate practice
cumbersome, and it is nearly impossible to control sensitive
identify cooperator
information to the detriment of defendants and government witnesses as well. As a defense attorney, I much prefer
that these matters not be publicized.

100

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 449 of 497

Categories
General comment about the frequency of harm; policy comments;
general comments about the
sources to identify cooperator

Open-Ended Comments

Nothing to report

Every client sent to BOP asks for a copy of their docket
sheet, even the clients who did cooperate. The cooperating
clients want us to somehow amend the docket sheet so
there are no sealed documents. Meanwhile, as someone
who also represents the people who are cooperated against,
I know that finding out information about cooperation
efforts, even though it’s important impeachment evidence,
is becoming more and more difficult.
Fear of the prosecutor and agents more prevalent fear.

Nothing to report

Fortunately, I have none to report

General comment about the frequency of harm

Details of a specific incident
Nothing to report
Nothing to report

Have been a number of cases where illegal alien defendants
were participants in drug distribution in U.S., usually as
low-level couriers or mules, for a relatively nominal payment of money, but not otherwise a significant part of the
drug operation. Many report having been threatened, or
having their families threatened, in [redacted] by drug cartels operating there. The government has conceded, in at
least some of the cases, that the threats and risks are real.
Higher in 2014 due to Robbery Case where four Defendant’s/witnesses were assaulted or threatened.
I am a new Judge appointed in [redacted] , 2017
ber 8
I am a recently appointed Septem and have no criminal
judge,
on
docket at this time.hived
rc
9 aof any harm or threats in the past 3 years.
I am not 025
aware
15-5
No.
, Thus, in answering this question I was not sure whether to

Nothing to report; takes issue with
the survey
oe
hn D select “I don’t know” or “about the same”....
v. Jo
SA
Nothing to reportin U
I am not aware of any instances where cooperators were
cited
threatened or harmed.
Nothing to report
I am not aware of any reported incidents or threats to defendants from our district.
Nothing to report; general comI am relatively new to the bench. But this has been going on
ment about the frequency of harm
for years.
Nothing to report
I am Senior Status and have not handled any criminal [cases] for the last three years.
General comment about the freI am very concerned about cooperating witnesses once they
quency of harm; general comment
get to prison, whether they cooperated initially and received
about harm in prison/prison cula benefit for cooperation at their initial sentencing or later
ture; procedures for protecting wit- got a Rule 35. Even though we try to protect them by sealnesses; general comments about the ing certain documents, allies of those who want to know for
sources to identify cooperator
improper reasons can access the court file from outside of
prison, and they do. When a sealed Order in an otherwise
dormant file shows up, you can just about bet it is a Rule 35
reduction, and allies of others in prison know that. I had
one instance of where I somehow found out about such an
inquiry being made for others in prison.
Nothing to report
I began my service as a federal district court judge on [redacted]

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

101

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 450 of 497

Categories

Open-Ended Comments

Nothing to report

I believe I had one and possibly two alleged threats to family members, but all of it was hearsay and not much collaboration.
Takes issue with the survey; general I believe the survey calls for speculative answers. To the
extent such threats or harm can be linked [with] any court
comment about the frequency of
activity, which is speculative itself, if there is a link, it is the
harm; policy comments; general
following: if anyone who wants to do harm to a so-called
comments about the sources to
cooperator is sophisticated in any [respect], they know that
identify cooperator
the word “sealed” on any court docket means only one
thing: a cooperation provision is part of the case. / The fact
of cooperation cannot be kept from the public [vis-à-vis]
the specifics of the cooperation. At sentencing the judge of
course must announce the amount of time being reduced
from the sentence for cooperation. The details of the cooperation are never placed on the record except in the rare
case where the defendant chooses to.
General comment about the freI believe there was a concern that threats are generated
quency of harm; general comments
from those who gain access to public documents that disabout the sources to identify coopcuss cooperation or potential cooperation by a defendant in
custody.
erator
I can not recall threat of harm to cooperators but do recall
General comment about the fre017
1) defendants and family memberser 8, 2 [were] threatwho
quency of harm; comments about
mb
e thought the defendant was
refusal out of fear
ened/harassed because people pte
on S
cooperating or amight d so, and 2) defendants who dechive do
9 r
clined5to025
5 proffer and help [themselves] because people
.1 , No
Doe might think they were cooperators
ohn
. general I can only answer for defendants because that’s whom we
Takes issue with the survey; J
SA v
comment aboutdthe U
represent. I can’t answer for witnesses. / Limit of 100 is
e in frequency of
cit
harm; general comment about
insufficient to express number of defendants who 1) reharm in prison/prison culture;
quest court documents to show they didn’t cooperate (vircomments about refusal out of fear
tually all of those incarcerated make this request, so many
hundreds; 2) I can’t quantify number of defendants who
refuse to cooperate out of fear. This is a constant theme and
vastly exceeds 100.

102

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 451 of 497

Categories

Open-Ended Comments

Nothing to report; general comment about the frequency of harm;
policy comments

I cannot recall the last time a client, defendant or witness in
a matter I was involved in was threatened in any way. In my
practice, which overwhelmingly involves the representation
of federal defendants and witnesses in federal criminal matters, the threat or risk of harm has not presented itself in
years. The extent to which such is an issue depends on the
nature of the case and the defendants involved in it. For
example, in my district, the risk of harm to a cooperating
defendant or witness in a health care fraud case is typically
much lower than that faced by a similar defendant or witness in large scale drug trafficking case where the leaders of
the conspiracy remain free while a low ranking conspirator
is enlisted as witness in an ongoing investigation that has
yet [to] result in additional arrests and charges against the
leaders. I also perceive that defendants and witnesses in
many cases, including drug trafficking and other organized
criminal activities, are more likely to cooperate today than
in the past. It is more common and there is less taboo
therefore associated with “cooperating” among defendants
and witnesses. The current mechanism whereby the parties
must articulate to the court why something should be
17
sealed appears to be working. The purported0need for blanr 8, 2
mbe
ket rules allowing court recordspand documents to be sealed
e te
on S
ved is a canard.
or shielded from rthei public
a ch
Nothing to report
I can’t5-50259 others
recall any
1
No.
Takes issue with the survey; general oe, I could not accurately answer the previous questions with a
nD
Joh
number. We frequently have clients call asking for their file
comment about the frequency of
A v.
n US
and/or docket to prove they are not cooperators - even cliharm; proceduresi for protecting
ed
cit
ent who have cooperated. Most [do] not claim they are
defendants; general comments
being threatened but some do. I cannot quantify how many
about the sources to identify coopcall but it is often. Most ask that the cooperation portion of
erator; comments about refusal out
a plea agreement be placed under seal (that is not automatiof fear
cally done here). 5K motions and anything referencing cooperation (e.g. mtns to adjourn) are under seal. I cannot
quantify. I will say that most often when they want to withdraw it is because they do not want to be exposed as a cooperator through testimony but not necessarily because
they’ve already been threatened. It is a concern they will be
threatened/harmed once their name is on a witness list.
Since most cases plea, cooperators are not exposed. We also
have clients who choose not to cooperate. Some make that
choice because they do not want to help the government or
turn on their family/friends. Others are scared of retaliation. I cannot quantify this because we do not necessarily
ask our clients why they are making this decision. / / I
don’t know if this is helpful. I am sorry that I cannot provide a number.

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

103

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 452 of 497

Categories

Open-Ended Comments

Nothing to report; Takes issue with
the survey; policy comments

I do believe that this is an important issue. But it is my
opinion that Judges are the least likely to have knowledge of
what happens after his/her case is closed.
Nothing to report
I do not recall receiving reports of harm or threats of harm
experienced by any defendant, witness, or family or friends
of a defendant or witness from cases on my docket in the
past three years.
General comment about the freI do not recall specifics but I do recall being informed
quency of harm; general comment
(primarily in connection with sentencings that defendants
about harm in prison/prison culture have been threatened in detention facilities and/or their
families threatened with physical harm in connection with
actual or suspected cooperation. All in drug cases, some of
which also involved charges of violent crime (including
murder) against the person to whom the threats were attributed.
Nothing to report
I do not see any change in harm, threats, or worries about
harm over the last three years (or over the last [redacted]
years, for that matter). Clients are often worried about retaliation; however, I have never seen any evidence or stories
about actual harm.
Details of a specific incident; Takes
I don’t recall any cases involving witnesses being harmed or
017
issue with the survey
threatened before 2014. The harm experienced by a witness’
r 8, 2
mbe
family was a drive-by shooting ptethe family home allegedly
Se of
d on
arranged by one ofhivedefendants.
c the
r
59 a
General comment about the freI got 15-50of answering the same way but I probably see 15
tired 2
.
No
quency of harm; Takes issue with Doe, or so cases per year where a cooperating defendant in prehn
oabout trial custody is [threatened] based on the knowledge he is
the survey; general comments
v. J
USA
cooperating based on debriefing statements placed in the
the sources toted in cooperator
identify
ci
[discovery] file of co-[conspirators].
Details of a specific incident; genI had a multi-defendant case arising out of brutal assault of
eral comment about the frequency
an expelled member of the [redacted]. All but one of the
of harm
defendants pled. Three or four testified for the Government in the trial of the one defendant who went to trial.
The “rule” of this [redacted] gang is that one does not get
out of it alive. Those who testified were under threat of
death, and one in particular — who had a prior State sentence to serve — sought (unsuccessfully) a deal to avoid
having to serve his State term in the State prison for fear
that he would be killed. The Assistant U.S. Attorney who
led the initial prosecution was removed from handling further [redacted] cases at his request after he received death
threats. / / Frequent death threats are made in illegal alien
trafficking cases, to control the illegal aliens until transportation fees are collected, and occasionally some of these
aliens are called as witnesses. / / An assistant U.S. Attorney
and [I] are currently under death threats from a detained
defendant awaiting sentencing on convictions including on
one count of solicitation to commit a crime of violence.

104

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 453 of 497

Categories
Details of a specific incident

Details of a specific incident

Details of a specific incident
Nothing to report
Nothing to report

Open-Ended Comments
I had one cooperating witness who was concerned about
potential threats once he was sentenced and started serving
his custodial sentence. His main area of concern, however,
centered around his deportation to [redacted] and the
threat of harm facing him from drug cartels in [redacted].
I have a large drug case involving about [redacted] defendants. Two of them claim that they were threatened not to
cooperate.
I have a pending case involving a local gang and allegations
of 2 or more killings of cooperating witnesses.
I have been a judge [redacted].

Nothing to report

I have been on senior status for [redacted] and have not
had a criminal docket for the past three years.
I have been on the bench less than [redacted].

Nothing to report

I have been on the bench less than [redacted].

Nothing to report

I have been on the bench only [redacted] and have had my
criminal docket for only [about] [redacted]. I have am not
aware of any threats thus far experienced by defendants
and/or witnesses, or their family or friends.
Nothing to report
I have had counsel represent that there may be a potential
17
threat of harm to a defendant or witness, , 20
r 8however, I do not
mbe
believe that there has been Septe
any actual harm or threat of
on
ived
harm. Or, maybe,cIhhave just not been made aware.
9 ar
Nothing to report
I have5had2no problems with threats of harm to clients or
50 5
.1 , No
Doe witnesses. If I ever had any issues, I am sure I could work
ohn
with the government and the court to handle them on a
v. J
USA
case-specific basis.
ed in
cit
Details of a specific incident; genI have had one case in which a codefendant was murdered
eral comment about the frequency
just before he was scheduled to appear for a change of plea.
of harm
I have had other cases in which I learned that a witness was
[threatened] but I cannot recall whether any of those instances occurred within the past three years.
Nothing to report
I have no information that any defendant or witness was
harmed or threatened due to perceived or actual cooperation.
General comment about the frequency of harm; policy comments;
general comments about the
sources to identify cooperator

I have no other specific information to provide, but have
the impression that the US Department of Justice and US
Attorney’s offices do not consider the protection of cooperating defendants (and to a lesser extent witnesses) to be
much of a priority, despite the rapid increase in electronic
access and search capabilities in recent years. Perhaps this is
reflective of better information about the real threat to an
incarcerated individual’s relative safety, but fear there is a
certain amount of fatalism (even cynicism) about what can
be or should be to follow through on these protections.
Instead, prosecutors seem to be defaulting on their telling
the potential informant that, while efforts will be made to
protect them, at the end of the day their safety cannot be
assured.

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

105

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 454 of 497

Categories

Open-Ended Comments

Nothing to report

I have not been advised of any threats to anyone

I have not had any clients that, to my knowledge before or
after, were threatened or harmed because of cooperation. I
can tell you that the CW in jail is that other inmates at the
FCI’s they will be assigned to, will have access to their
judgment and other docs and so will be able to tell if an
inmate was granted a 5K or a reduced sentenced for cooperation and they fear retribution for that. The effect is to
limit D.’s willing to cooperate. I have had a handful, maybe
6, cases in the past 3 years that the fear of retribution prevented their cooperation.
I have not had defendants/witnesses who have received
Nothing to report; general comactual threats or have been harmed because of cooperation
ment about the frequency of harm;
or possible cooperation. However, it is common that degeneral comment about harm in
fendants do not wish to have a cooperation provision in the
prison/prison culture; general
plea agreement because of safety concerns. Those concerns
comments about the sources to
are two-fold. One is the general concern about their family
identify cooperator; comments
who will remain in the community. The other concern is
about refusal out of fear
that the paperwork at BOP will indicate they are cooperating. The fact that a defendant’s cooperation is not kept secure by BOP is a major factor keeping many defendants
017
r 8, 2
from desiring to cooperate.
mbe
epte
I have not known of documents or transcripts to have been
Nothing to report; general comon S
ved movement of the prisoner/witness
h
used. Typically arcis i the
ments about the sources to identify
9 it
50 5
-out2of the facility to meet with the AUSAs which
cooperator; general comment about in oand
15
N .
harm in prison/prison culture hn Doe, enlighten fellow inmates.
o
Nothing to report USA v. J
I have not received any information that defendants who
n
i
are serving time after sentencing have been threatened in
cited
prison for cooperating.
Details of a specific incident
I have one case where the parties’ attorneys have expressed
serious concerns about any possible threats being made to
the defendant during the cooperation period, especially
because he is in custody.
Nothing to report
I have only been a District Judge for [redacted].
Nothing to report; general comment about harm in prison/prison
culture; general comment about the
frequency of harm; general comments about the sources to identify
cooperator; comments about refusal
out of fear

Nothing to report

Nothing to report

I have only been a federal judge for [redacted]. During my
tenure, I have not experienced harm/threats to witnesses or
cooperators in any of my cases.
I have only been a judge for [redacted].

Nothing to report

I have only been on the bench for [redacted].

Nothing to report

I have only been on the bench for [redacted].

General comment about the frequency of harm; general comment
about harm in prison/prison culture; general comments about the
sources to identify cooperator
Nothing to report

I have only heard of threats to prisoners where their cooperation was discovered through reference to their plea
agreements or 5K petition. I have no first hand knowledge
of such activity in cases on my docket.

106

I have only served as USDJ since [redacted] so I have a limited basis to compare.

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 455 of 497

Categories

Open-Ended Comments

Nothing to report

I have polled all current officers and supervisors and they
do not recall [any] incidents within the past three years.
I have practiced actively in the [redacted] since [redacted].
General comment about the freOnly one defendant (during the 90’s) has been the subject
quency of harm; procedures for
of credible threats during a case and he was appropriately
protecting defendants; general
given a place to live outside of town by the FBI for a brief
comment about harm in prisperiod. It is not infrequent that clients communicate from
on/prison culture; policy comments; general comments about the prison about cooperation allegations, including two or
three times during the last three years. Clients have requestsources to identify cooperator
ed their PSR, docket sheet, phony letters from the US Attorney’s office or from me. I am not aware of any client
being the subject of actual harm. The current system of
sealing cooperation agreements does not offer protection
since plea agreements are public and anybody can do the
math and compare guideline levels to actual sentences.
Now that the Guidelines are discretionary, there is a risk of
being falsely accused of being a cooperator if one gets a
reduced sentence for some other reason. / / My view is that
the only way to protect defendants is for less of the docket
to be public records.
Details of a specific incident; Takes
I have presided over the [redacted] [trials] lasting [redact17
issue with the survey; general comed]; The [redacted] that were [redacted];, 20
r 8 subsequent submbe
ment about the frequency of harm
sets of [redacted] trials [redacted]; The [redacted] trials
epte
on S
ved other cases involving organized
[redacted] and archi
numerous
59
criminal5gangs [redacted]. Cooperating witness and [wit- 02
15
No.
e, ness] intimidation are standard and the present procedures
n Do
Joh
highlight their cooperation and endanger witnesses. / I did
A v.
n US
not limit my comments the last three years. / [redacted]
ed i
cit
Nothing to report
I just became a judge in [redacted] so I can’t compare . . .
Nothing to report

I just took the bench on [redacted].

Details of a specific incident; general comments about the sources to
identify cooperator

I know of only one case in the past three years. The case involved the exportation of military grade munitions. Once his
cooperation was published in the local paper, his family in
[redacted] asserted that they were compelled to move. His wife
reported that [someone] shot into her vehicle, she added that
her son was beaten up, and that they live in constant fear.
I learn from defense lawyers about threats. They learn
about threats from [their] clients. Typically I do not learn
of the details. I also am not told if the defendant requested
protection. Lawyers are very reluctant to give much information about threats because sharing [details] may place
their clients at further risk. I believe this is a problem that is
under reported to the courts.
I only became a judge in [redacted], so I have no basis for
comparison.
I only recall one person who, when filing a 2255, requested
it be sealed due to fears of threats as he had been a cooperating defendant.

General comment about the frequency of harm

Nothing to report
Details of a specific incident; general comments about the sources to
identify cooperator

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

107

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 456 of 497

Categories

Open-Ended Comments

Details of a specific incident; general comments about the sources to
identify cooperator
Details of a specific incident; general comments about the sources to
identify cooperator

I recall one case where I was informed that a cooperating
witness was subjected to threats, including on the internet,
for participating in the trial
I recall only the one case I have previously described and
the Motion to Vacate at issue and the opinion were issued
in 2014 but defendant’s allegation of being [harassed] by
inmates based on the opinion were raised in 2015
Details of a specific incident; genI recently sentenced a defendant who had from jail ineral comments about the sources to structed his girlfriend to identify a co-conspirator on
identify cooperator
rats.com for cooperating.
Procedures for protecting defendI require all documents that reference cooperation or poants
tential cooperation to be filed under seal. I also seal transcripts. I have sealed or moved sentencing hearings.
Nothing to report; Takes issue with
I spoke with [redacted] and was told if i did not recall a
the survey; general comment about
specific number I should respond with the number “0”,
the frequency of harm
which I have done. / / Also this survey is too absolute in its
questioning. A whole host of factors may go into the client’s
decision to cooperate or not, not only the fear of harm or
retaliation. So any cause and effect analysis is misleading.
Suffice it to say that fear is present in almost any drug case
where there is cooperation.
017
Details of a specific incident
I took the oath in [redacted], so I have8a 2
r , limited data set
mbe
e
from which to answer. / on Seone case I described, where a
/ The pt
ved an informant, (which missed), is
shot was taken archi at
aimed
59
the only 502
- incident with which I am familiar.
o. 15
tried to indicate that every client who is sent to BOP reGeneral comment about harm in Doe, IN
n
h
quests their “paperwork” to prove they are not a cooperaprison/prison culture;SA v. Jo
general
nU
tor. The number is much higher than I indicated but the
comment aboutdthe frequency of
e i
cit
survey did not accept the number I put in so I dropped it to
harm; details of a specific incident
10. A client has two weeks to produce their documents once
they enter BOP to prove they are not a cooperator otherwise they are subjected to physical harm. One client was
beat senseless with a lock in a sock, he suffered severe head
wounds. They are all threatened once they arrive in BOP
custody.
General comment about the freI understand that the only way generally for a defendant to
quency of harm; policy comments
receive a departure, is to cooperate, the extension of that
cooperation can not only lead to a dangerous situation for
the defendant, but also for the officer supervising that defendant. It is critical that the AUSA and the agents advise
officers of a defendant’s cooperation, so that they are not
put in an unnecessary high risk situation.
Nothing to report
I was confirmed in [redacted], so I am unable to make a
comparison between 2013 and 2014.
Details of a specific incident; comI was dealing with defendants associated with the [redactments about refusal out of fear
ed] drug cartel. Cooperators and their family members
were under constant threat. Numerous defendants refused
to protect their family members in [redacted].
Nothing to report
I was not on the bench in [redacted].

108

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 457 of 497

Categories

Open-Ended Comments

Nothing to report

I was off of our criminal law draw for most of the past three
years. I went on the draw for about three months in about
[redacted], and drew three long cases and, therefore, took
myself out of the criminal draw again. The trials were [redacted] weeks, respectively. So, I probably have little to add
to this survey.
Nothing to report
I was sworn in on [redacted], so my experience is very limited.
Nothing to report
I would not have information about this because it is not a
matter ordinarily brought to my attention.
General comment about the freI wrote 15 for the number for people who withdrew. It is
quency of harm; comments about
likely higher. We are in [redacted] where many of our clirefusal out of fear
ents are so fearful, b/c of the environment, that we can’t
even get clients to have a safety valve interview. Clients
would rather do their mandatory minimum than be labeled
a “snitch.” Dozens and dozens of our clients refuse to cooperate out of fear and the threats.
General comments about the
if there are sealed pleading on the docket sheet, the assumpsources to identify cooperator
tion is that client is cooperating
Nothing to report
I’m a new judge and therefore do not have relevant information.
2017
General comment about the freI’m afraid my lack of recollection mber not allow me to redoes 8,
ep e
quency of harm; policy comments
count the many more instances tover the [redacted] years I
on S
ved in which cooperating defendants
have been on thechi
r bench
59 a
have 15-50afraid after they have provided information. My
been 2
o.
e, N
n Do experience is that there is a complete disconnect between
Joh
the United States Attorneys Office and the Bureau of PrisA v.
n US
ons such that once a defendant is no longer needed, he is
ed i
cit
discarded and the interest and knowledge in how best to
protecting him or her is minimal to non-existent. There is
no sense of commitment to the safety of the cooperator for
the duration of his term in custody or upon release.
Details of a specific incident; genIn a large drug trafficking case, a witness/cooperator reeral comment about the frequency
ceived a threat via letter. The letter was sent to the witnessof harm
es/defendant’s family. The FBI is investigating the case.
Often, in other cases, many defendants allege that they will
be harmed for cooperating - however it’s difficult to verify
if any actual harm might befall them.
In approximately 2010 there was a huge upsurge in drug
Details of a specific incident; genconspiracy cases involving violence. Two of the cases that I
eral comment about the frequency
make reference to in this survey involved RICO drug conof harm; general comments about
spiracies. One of the cases was a RICO drug conspiracy
the sources to identify cooperator
involving a [redacted] gang. It was through trial testimony
that I learned of the extensive use of court documents (particularly PreSentence Investigation Reports and Plea
Agreements) in prison to identify cooperators.

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

109

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 458 of 497

Categories

Open-Ended Comments

Procedures for protecting defendants

In coordination with the District Court, we have implemented a procedure to keep cooperation provisions of plea
agreements under seal. Standard non-cooperation plea
agreements are filed and appear on PACER. Cooperation
provisions in all cases are contained in Supplemental Plea
Agreements which are filed under seal using a single Magistrate (MJ) case number.
In every 5K motion there is a section about potential harm
Procedures for protecting defend— most of the time the government says there are no
ants; general comment about the
known threats but that given the cooperation threats are a
frequency of harm; details of a spepossibility — my experience has been that they disclose the
cific incident
threats orally at sidebar at sentencing, because they don’t
want to write the details down, so we don’t have records
and my memory is not great about individual cases. The
most blatant example I had involved a [redacted] store selling T-shirts with the cooperator’s photo and the words
“[cooperator’s name] is a snitch” — but the knowledge did
not come from court, people learned of it during the investigative stage.
Details of a specific incident; genIn [redacted], the defendant on supervised release in my
eral comments about the sources to case testified before a federal grand jury in an unrelated
17
identify cooperator
matter. He was murdered in [redacted] , in0 [redacted]. It
r8 2
mbe
appears that the defendants Septe unrelated matter found
in the
d on
out about his grand ijury testimony.
ch ve
9 ar
In multiple 5
Procedures for protecting defend502 Defendant drug cases where a Defendant has
. 15, No
ants
Doe cooperated, I am seeing situations where the defense attorohn
ney and prosecutor schedule a meeting with me to explain
v. J
USA
the Defendant is cooperating; however, because of safety
ed in
cit
concerns for the defendant and his family members, they
do not want the docket to reflect any notations to a sealed
proceeding. Instead of the U.S. filing a sealed 5k motion,
there is a Rule 11(c)(1)(C) plea agreement to a specific sentence or to a specific range and the joint request by defense
counsel and the prosecutor is to accept the plea agreement
without making any reference on the record to the defendant’s cooperation for personal safety reasons. / / My clear
preference would be for a sealed 5k motion for downward
departure for substantial assistance; however, I have agreed
to the off the record procedure requested by defense counsel and the prosecutor because I do not want to see any
harm come to the defendant and/or his or her family members.
In my cases, many of my clients have contacted me to obGeneral comment about harm in
tain transcripts of their sentencing hearings, or copies of the
prison/prison culture; general
dockets in their cases so that they can show other inmates
comment about the frequency of
that they did not cooperate. They have told me that other
harm
inmates require this information so that they can prove that
they are not “snitches.”

110

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 459 of 497

Categories

Open-Ended Comments

Details of a specific incident; general comments about the sources to
identify cooperator

In one case prosecuted recently, the informant /witness was
threatened after the defendant’s family posted the tapes of
the undercover buys the informant made on YouTube. The
tapes had been provided to the public defender as discovery. The public defender turned these over to the defendant’s family, and subsequently, the family posted the videos
on-line. The office has addressed this problem with the
public defender to ensure that such an episode will not be
repeated.
Details of a specific incident; genIn one case, the defendant was involved with members of
eral comments about the sources to violent known street gangs, such as [redacted], but who
identify cooperator; general comalso would engage in unaffiliated acts of violence for hire in
ment about harm in prison/prison
connection with their drug trafficking activities. The deculture; procedures for protecting
fendant used information obtained pursuant to the Jencks
defendants
Act to ascertain the identities of potential witnesses, some
of whom were incarcerated, some of whom had pled guilty
but were at liberty (of these some received veiled threats not
to testify and one was assaulted- presumably in connection
with his anticipated testimony). This defendant also tried to
provide economic assistance to one cooperator to buy his
silence by providing commissary money and providing
17
money to his family. / / In the thirder 8, 20 defendants
b case, the
mcooperator were meminvolved in assaulting a perceived
epte
on S
ved criminal group. The assault ocbers of a violentchi
r ethnic
59 a
curred5without any concrete proof that the alleged coopera-502
1
No.
e, tor was, in fact, cooperating on their case. In fact, the pern Do
Joh
son was not providing information on their case. The asA v.
n US
sault was videotaped in the federal jail facility. Additional
ed i
cit
comments provided via email: There are certain circumstances that may serve as signs to defendants or persons
trying to identify who is cooperating with the government
in a criminal case or ongoing investigation. For example,
--- If the person has pled guilty and the sentence has
been held in abeyance for any unusual length of time, usually more than 3 or 4 months.
--- If the person pled guilty to a prosecutor’s information as opposed to an indictment before there was an
indictment filed.
--- Because incarcerated defendants who have been
convicted by guilty plea (or sometimes trial) are pressured
by other inmates to obtain a copy of their presentence report to prove they are not cooperators, our district’s Probation Department no longer mentions the defendant’s cooperation with the government or the possibility of a 5K1.1
motion as a possible departure factor in the presentence
reports. Any cooperation is addressed in the sentence recommendation, which is not sent to the prison officials, and
is submitted to the court separately from the presentence
report.

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

111

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 460 of 497

Categories

Open-Ended Comments

Details of a specific incident; general comment about harm in prison/prison culture

In one instance, a defendant attempted to recruit an inmate
incarcerated with the co-defendant cooperator to harm the
cooperator. In another instance, a spouse of a co-defendant
(who was also a defendant) in a drug conspiracy case was
raped by members of a gang involved in the conspiracy
because she agreed to cooperate with the government.
Details of a specific incident; comIn one of the cases on which I worked as a magistrate judge,
ments about refusal out of fear
a confidential informant was murdered the day after agents
arrested a number of participants in a drug conspiracy. In
another case involving multiple defendants who were involved in a drug conspiracy, one of the [redacted] defendants who was a minor player in the conspiracy but who had
information about at least one of the leaders of the conspiracy, declined an opportunity to cooperate with the Government out of concern for his family. In that case, we
learned that another member of the conspiracy was paying
the defendant’s attorney fees and was participating in decisions about the defense provided to the defendant. I removed the defense attorney and appointed new counsel for
the defendant.
Procedures for protecting defendIn our Court [redacted] we have local rules that allow the
17
ants; general comment about harm
sealing of such documents as Motions 8, 20
r for 5Ki.i and 3553
mbe
in prison/prison culture
relief, Sentencing memorandum, Guilty Plea Memos and
epte
on S
ved
Agreements whenchi
cooperation of the pleading defendant is
9 ar
at issue.5We5cannot (and I would not) seal an entire case
- 02
15
No.
e, file, but orders to seal enough documents in a case will be
n Do
Joh
revealing on the docket to those assisting a defendant tarA v.
n US
get. Pre-sentence Investigation reports should not cite coed i
cit
operation of any defendant, either. / Separating the cooperator(s) in a particular case who are all housed [in] the
same facility is also a challenge, but the effort must be made
by the prosecutors as well as the FDC and BOP.
Procedures for protecting defendIn our district, all sentencing memoranda, 5K motions, and
ants
plea agreement cooperation agreements are sealed by default. I believe this has been very effective in controlling the
effect on cooperating defendants and witnesses.

112

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 461 of 497

Categories

Open-Ended Comments

General comment about the frequency of harm; procedures for
protecting defendants; general
comments about the sources to
identify cooperator

In the [redacted], the United States Attorney’s Office
(“USAO”) prosecutes a number of cases annually charging
defendants who are members of violent street gangs, organized crime groups, and large-scale drug trafficking organizations. One of the central tenants of many of these organizations is that those who cooperate with law enforcement
against these organizations are automatically targeted for
murder or some other form of physical harm. As a result, it
is not at all unusual for cooperating defendants and cooperating witnesses to receive threats directed by the criminal
groups they are cooperating against. (Although, chiefly as a
result of the great care that is typically taken to protect cooperating witnesses and defendants from harm, it is rare for
these threats to materialize into actual harm that befalls
these individuals.) / / As a result of the nature of the threat
faced by cooperating witnesses and defendants who cooperating against some of the violent criminal organizations
prosecuted in the [redacted], the USAO routinely seeks
permission to file under seal with the court pleadings -such as sentencing memoranda and plea agreements -- that
disclose the fact a defendant or witness is cooperating with
17
the government; and district courts in r 8, 20
the [redacted] regumbe
larly provide authorization for pte government to file such
Se the
d on
pleadings under seal.vWhile this may provide some measure
chi e
ar
of protection 9 individuals who cooperate with the gov5025 for
. 15- it is not a fool-proof method of concealing an
No
, ernment,
Doe
ohn
individual’s cooperation from those who may want to do
v. J
USA
him or her harm, as the fact that such a pleading has been
ed in
cit
filed under seal may alone signal to a member of one of
these groups that a particular individual is cooperating and
these groups often need only to speculate that an individual
is cooperating before seeking to do him or her harm.
General comment about the freIn the [redacted], we have a large percentage of defendants
quency of harm
who cooperate with the government. The majority of
threats are coming from drug cartel members who reside in
[redacted] and travel back and forth across the border.
Most of the defendants who report the threats state they
have been kidnapped, beaten, and threatened by the cartel.
The threats usually extend to the defendant’s family members as well.

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

113

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 462 of 497

Categories

Open-Ended Comments

General comment about the frequency of harm; general comments
about the sources to identify cooperator
General comments about the
sources to identify cooperator; details of a specific incident; procedures for protecting defendants

In the vast majority of the cases, rumors led to threats of
harm or assault. However, the co-defendant or unindicted
co-conspirator had no proof that the defendant was actually cooperating.
In this district both plea agreements outline the government’s intent to request a sentence reduction for cooperation and the Statement of Reasons is still considered by the
Court as a public document and thus is available with the
judgment on CM/ECF. / / Of the two offenders threatened
while on supervised release -- one we made arrangements
to transfer supervision to another district and the other one
is currently in process of attempting a transfer. The current
one being threatened was sentenced in a different district.
Procedures for protecting defendIn this district we have very few threats of harm. We believe
ants; nothing to report; policy
taking actions to seal information for a minority of persons
comments
for the explicit reason of making the information more
difficult to obtain, will harm the majority of our clients by
making otherwise public information secret and by depriving them of potentially exculpatory or mitigating information (what agreements other similarly situated persons
have obtained, how to compare others convicted of the
17
same offense, etc.). We strongly oppose 8, 20idea for those
r this
mbe
reasons. In addition, somencourtseof appeals look unfavoraept
o S
ved
bly on sealing archidocuments and have strict rules as to
any
9
when and025 documents can be sealed.
-5 how
. 15
N [redacted], the defendant [redacted] was a local rap artDetails of a specific incident; gen- Doe, Ino
n
eral comment about harm . Joh
in prisist in [redacted]. [redacted] compiled and released a rap
SA v
on/prison culture;n U
video on YouTube that identified (by name) government
ed i general comcit
cooperators. The government was successful in having the
ments about the sources to identify
video removed from YouTube. This occurred in [redacted].
cooperator
On a separate matter, we have received information in the
past that inmates in BOP custody were being required to
provide other inmates with a copy of their presentence report in order to confirm that they were not cooperating
with the government. No specific case references are [available].

114

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 463 of 497

Categories

Open-Ended Comments

In [redacted], the government arrested [redacted] people
involved with a very violent drug conspiracy known as [redacted]. Most of those arrested were held at the Federal
Detention Center, and although there were separation orders, the A.U.S.A. reported to the Court a large number of
threats made by the organization leaders [redacted]. The
organization took the position that even a defendant’s
guilty plea qualified as cooperation, even if that defendant
provided no further assistance against other co-defendants.
The Court broke the organization up into three groups for
trial and tried four individuals in the first of the three
groups, resulting in convictions for all four. The Court ordered an anonymous jury and the U.S. Marshals escorted
jurors to and from the juror parking lot from undisclosed
locations. None of the defendants has cooperated against
his or her co-defendants, though some have pleaded guilty.
Those who have pleaded guilty have made clear that they
are putting in a plea for themselves only, not agreeing to
cooperate against any of their co-defendants.
General comments about the
It appears most harm was done by people who knew them
sources to identify cooperator
previously, not [through] court documents or 7
information
1
made public through judicial means. er 8, 20
mb
General comment about the freIt appears that more unchargedte
ep witnesses (not defendanton S
d
quency of harm; general comments
witnesses) are threatened, than defendants. Additionally, it
hive
9 arc
25frequently, at least at the earlier stages of the
about the sources to identify coopappears-50
15 that
No.
erator
oe, cases, the witnesses are identified through conclusions
nD
drawn from discovery (even if redacted to protect identity
. Joh
SA v
U
for a time). Additionally, in many cases there are not actual
ed in
cit
threats, but an expressed fear by the defendant of cooperating due to concern for self or family. Many such defendants
express concern through their counsel about the sealing of
the cooperation agreement and how it appears on the
court’s docket (such as whether there is a missing number
on the docket).
General comment about the freIt is a recurrent theme. I could have continued to answer
quency of harm; general comment
yes over and over again in this survey. I often read it in PSR
about harm in prison/prison culture where the officer states that the defendant and/or his family
was threatened when they learned or suspected that he was
cooperating. So I really wasn’t thinking of one specific case
but of many. Everyone seems to find out in jail about who
is a snitch!

Details of a specific incident; general comments about the sources to
identify cooperator; procedures for
protecting defendants; procedures
for protecting juries

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

115

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 464 of 497

Categories

Open-Ended Comments

Takes issue with the survey; procedures for protecting defendants;
general comments about the
sources to identify cooperator; general comment about the frequency
of harm

It is almost impossible to know the exact number of witnesses or defendants who have been threatened from information learned or acquired from PACER. In our district,
plea supplements contain the information about cooperation and the potential for downward departures. They are
filed under seal. However, one can see that there is a sealed
document by the fact that a numbered document is [missing]. Likewise, 5K1.1 motions are filed under seal. However, again the missing document number and the proximity
to sentencing is a give away. The same is true for Rule 35
motions, filed under seal with a missing number and shortly thereafter an Amended [Judgment] is filed. Furthermore,
witnesses and cooperating defendants, when threatened,
generally do not know how the assailant learned of their
cooperation.
Policy comments
It is essential that we develop and implement on a national
basis uniform procedures and practices to reduce or eliminate the risk of harm to cooperators arising out of public
access to court records. My district, [redacted], has developed procedures to do so, but these will be of little effect
unless [these] procedures, or something similar to them,
17
are adopted throughout the country. er 8, 20
mb
pte
General comment about the freIt is increasingly true that defendant’s worry they will be
n Se
ed o
vpre-trial incarceration or once placed
quency of harm; general comment
asked, either duringi
h
9 arc
about harm in prison/prison culin the 5-5025 of Prisons, for their plea paperwork to see if
Bureau
1
No.
ture; procedures for protecting de- oe, they have cooperated. Refusing to provide it is considered
nD
fendants; policy comments. Joh
proof of cooperation. I have had a court allow me to submit
v
USA
the plea paperwork with a cryptic reference to a sealed doced in
cit
ument outlining the cooperation and its 5K benefits. We
definitely need a way to help [defendants] who cooperate
from being put in this predicament.
General comment about the freIt is now regular BOP inmate practice to demand “papers”
quency of harm; general comment
to determine whether another provided cooperation and
about harm in prison/prison culassistance to the government, or is a convicted sex offender
ture; general comments about the
where minors were involved. Inmates regularly request
sources to identify cooperator
copies of their docketing statement, judgment and commitment order, and statement of reasons section.
Nothing to report
I’ve been in this position for less than a year, so my perspective on the questions is very limited.
Details of a specific incident; proce- I’ve [only] been on the bench [redacted]...so not a lot of
context to respond. I had one case where the potential for
dures for protecting defendants;
5K1.1 was mentioned in the plea agreement. Later, the FPD
general comments about the
sources to identify cooperator
asked permission to substitute a revised plea agreement (so
it would appear as the “original” [agreement] on the docket), deleting reference to cooperation because of threats
conveyed to defendant’s family. My clerk has also reported
anecdotal instances of “rough and [suspicious]” looking
people coming to the [public] viewing terminal to see plea
agreements and/or 5K motions.

116

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 465 of 497

Categories

Open-Ended Comments

Details of a specific incident; general comments about the sources to
identify cooperator

Just the one incident mentioned earlier. It occurred in a
multi-defendant drug case. The witness was a defendant in
a related multi-defendant drug case and was seen coming
back from court. Unclear how one of the defendants (the
one who threatened him) knew he had cooperated.
Many clients who were sentenced to a BOP facility have
requested court documents that confirm that they were not
cooperators.

General comment about harm in
prison/prison culture; general
comment about the frequency of
harm
General comment about harm in
prison/prison culture; general
comment about the frequency of
harm; procedures for protecting
defendants; comments about refusal
out of fear

Many of our clients request their paperwork after they report to BOP and tell us that if they do not prove they were
not cooperating they will be in physical danger. In our district we routinely seal matters on the docket and close hearings that are related to cooperation. We do not track numbers - but we often have witnesses refuse to be interviewed
by us in fear that cooperation will tag them as a “snitch”
and place them in physical danger.
General comment about the freMany of the threats were made by the defendants appearing
quency of harm
before me of actual and potential witnesses against them. I
have seen correspondence and transcripts of phone calls
containing such threats.
017
Procedures for protecting witnesses Many of those [threatened] went into er 8, 2 protection.
witness
mb
epte
General comment about harm in
Many requests for transcripts because of demands from
on S
ved
chi
prison/prison culture; general
other inmates9in rprison to prove that the defendant was not
5 a
-502 Some threats to defendants whose sentencing
comment about the frequency of
a cooperator.
o. 15
e, N
harm
n Do hearings have been postponed when co-defendant trials are
Joh
A v.
postponed because they are assumed to be cooperating.
n US
i
Comments about refusal out of fear; Many times defendants will refuse to cooperate because of
cited
threats to family, friends or themselves. There is also the fear of
general comment about harm in
the unknown when they reach BOP, as it is common
prison/prison culture; general
knowledge that “cooperators” are targeted. Further, all of our
comment about the frequency of
plea agreements contain boilerplate language regarding coopharm; general comments about the
eration, so anyone in this district could be identified as a coopsources to identify cooperator
erator even when they did not cooperate. We also receive
many variances on factors other than cooperation, and defendants are concerned that the variances, though not related
to cooperation, may target them in prison. We routinely give a
copy of the sentencing memorandum we prepare to clients. 5K
motions prepared by the government are not shared with us.
General comment about the freMost cases involved illegal aliens with ties to drug cartels in
quency of harm
[redacted]. Defendants feared for their [families’] safety.
Whether actual threats or simply fear arising out of the retributive reputations of the cartels was the cause of reluctance to provide information, I cannot say.
Procedures for protecting defendMost information is anecdotal. No hard details are availaants; general comments about the
ble. It is our practice to seal any filing or proceeding that
sources to identify cooperator
references cooperators, except the testimony of a cooperator in open court.

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

117

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 466 of 497

Categories

Open-Ended Comments

General comment about the frequency of harm; general comments
about the sources to identify cooperator

Most of the cases involve individuals in either pretrial detention or release status who were threatened by individuals (often co-defendants) who knew the “victims” were assisting the
government either after arrest, or had cooperated with law
enforcement prior to arrest. I believe very little of the information about cooperators was gleaned through court documents, mostly it was by word of mouth or from the street.
General comment about the freMost of the cases where I have clients who reported threats
quency of harm; details of a specific of harm arise in in drug conspiracy cases, mostly involving
incident
[redacted]. The reported threats have been both implied
and explicit. The implied threats typically involve someone
telling the defendant they know where he lives or where his
family lives. One [explicit] threat involved discussions as to
whether to cut the defendant’s fingers off or kill him.
General comment about the freMost of the problems our clients face are because of the
quency of harm; general comments
nature of their charges, eg child pornography cases. Those
about the sources to identify coopclients are very concerned about the privacy of their court
erator
files and records.
General comments about the
Most of the threats came as a result of actual trial testimony
sources to identify cooperator;
by the defendants/offenders who were threatened. I have no
nothing to report
information in any of the cases that points to 7
court docu01
ments being used to identify the defendants/offenders as
r 8, 2
mbe
epte
cooperators.
on S
d
hiv cases have been due to the protection
General comment about the freMost requests torseal e
9ac
25of a defendant to cooperate without the possiquency of harm; procedures for
of the 5-50
1 ability
No.
protecting defendants
oe, ble targets learning of the Defendant’s agreement to coopnD
. Joh
erate which would impede the Defendant’s ability to lure
SA v
U
into traps the government has devised for the cooperation.
ed in
cit
I have not heard of any person who was a witness to a case
to whom a threat was made.
Comments about refusal out of fear; Mostly gang defendants and witnesses don’t want to coopgeneral comment about harm in
erate because of actual or perceived harm and the need to
prison/prison culture
prove they are not cooperators by sufficient documentation
when they enter the bureau of prisons
Details of a specific incident
my client that was harmed was attacked while in transit--he
was threatened several other times, also while being transported to/from court or facilities
General comment about the freMy clients are concerned about harm to themselves or famquency of harm; comments about
ily in cooperation cases but I have not had any clients derefusal out of fear
cline to cooperate for that reason.
Nothing to report
My judgeship began in [redacted].

118

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 467 of 497

Categories
General comment about the frequency of harm; general comment
about harm in prison/prison culture; general comments about the
sources to identify cooperator

Open-Ended Comments

Nothing to report

My [only] [information] about possible harm to witnesses
comes from occasional comments by agents or AUSAs that
detained defendants have been “reaching out” to persons
outside the jail to have them, in turn, contact persons believed to be [cooperators]. I don’t know how often this
happens, but assume that it’s not uncommon. AUSAs &
USMS Deputies would be better sources of data. / / I do
know that prison inmates are being called on to get and
provide to others copies of their PSRs and, perhaps, transcripts of sentencings. Docket sheets containing sealed plea
agreements or sentencing [memoranda] area big red flag.
My responses to the two previous questions left blank is:
fewer than 10.
N.A.

Nothing to report

N/A

Nothing to report

N/A

Nothing to report

N/A

Nothing to report

N/A

Nothing to report

N/A

Nothing to report

n/a

Takes issue with the survey

017
r 8, 2
mbe
Nothing to report; procedures for
Neither my staff nor I can Septe
remember any instance in the
on
protecting defendants
past three yearsarchived
of defendants or witnesses being harmed or
9
threatened 2because of that person’s cooperation with the
50 5
. 15, No
Doe government. In fact, I can’t remember any such instance in
ohn
my [redacted] on the bench. / I know we are careful in my
v. J
USA
jurisdiction to seal sentencing memos and transcripts of
ed in
cit
sentencing hearings whenever cooperation is involved or at
least whenever I am requested to do so by defense counsel
or the government. It is also, of course, possible that we just
haven’t heard of harms or threats that occur after our cases
are closed but I am [sensitive] on the subject and would
remember if it had come to my attention.
Takes issue with the survey; general Neither the USAO nor law enforcement agencies track this
data, so we have been compelled to provide estimates. Furcomment about the frequency of
ther, it is not clear what the survey means by a witness
harm; comments about refusal out
“withdrawing an offer of cooperation” as opposed to “reof fear; procedures for protecting
fusing cooperation.” Witnesses, especially in drug and viowitnesses
lent crime cases, frequently live in urban areas where
“snitching” carries enormous danger. Law enforcement
agents commonly hit a wall of silence in a community,
stemming largely from the fear that powerful groups will
kill witnesses who are seen as providing information to the
government. Frequently, this wall of silence can be penetrated only if we manage to arrest and detain many members of the group, freeing residents of fear of retaliation.

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

119

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 468 of 497

Categories

Open-Ended Comments

Nothing to report; procedures for
protecting defendants; general
comments about the sources to
identify cooperator

Nothing to report

No client has reported harm or threats of harm in the last
three (3) years. Requests for docket info have decreased
since the [redacted] has instituted a policy of sealing ALL
plea agreements, not just those entitled Plea and Cooperation Agreements. Those who have asked in the last three (3)
years do not report harm or threats of harm in their requests as those requests are probably being screened by
those threatening/doing the harm, but that cannot be verified.
No harm or threats occurred.

Nothing to report

No incidents.

Nothing to report

no threats occurred to my knowledge

Nothing to report

No threats or harm that I am aware of

Nothing to report

No threats, thus no change.

Nothing to report

None

Nothing to report

None known.

Nothing to report

None of my cases that I supervised have experienced threats
or harm.
Details of a specific incident; comNone of my clients were actually harmed. I had one de017
ments about refusal out of fear
fendant whose family in another country 2
r 8, was threatened.
mbe
He refused to cooperate. n Septe
do
hiv have been brought to my attention.
Nothing to report
None of these matterse
9 arc
025
Nothing to report
None 5-5 I can recall, after checking with my Courtroom
1 that
No.
oe,
hn D Deputy and my Probation Officer liaison.
v. Jo
Nothing to report USA
None that I know of.
in
cited
Nothing to report
not applicable
Nothing to report
Nothing to report

not applicable, because [I’m] not aware of any such threat
to a witness or defendant in any of my cases.
Not aware of any harm or threat of harm

Nothing to report

Not sure this is a real issue in our district.

General comment about the frequency of harm; policy comments;
takes issue with the survey; comments about refusal out of fear

Obviously, gang and prison inmate prosecution create the
greatest threat of actual violence and potential for frightening witnesses from testifying. While “transparency” is at the
bedrock of our judicial system, with gang, organized crime,
and prison prosecutions transparency comes at a high price
when cooperators are an integral part of the prosecution or
investigation. Questions 2 and 4 require a highly speculative response. My experience shows that a large number of
potential witnesses and defendants are [deterred] and
therefore refuse to cooperate because they perceive danger
to themselves or their families. I would [not] know if they
didn’t tell me or refuse an offer, so, my quantification of the
numbers is speculative.

120

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 469 of 497

Categories

Open-Ended Comments

Details of a specific incident; procedures for protecting defendants

On the first defendant, that individual was placed in protective custody after being harmed/shot. / With respect to the
second defendant, that individual was housed in protective
custody in a hotel. / With respect to the third defendant,
that individual had physical harm but declined any protective custody.
Details of a specific incident; proce- One additional threat to report (can’t go back in survey).
dures for protecting defendants
Offender on supervised release, cooperated against fellow
gang members, separated while in custody and USPO work
to keep him separate during supervision activities. Threat
was actual physical harm.
Details of a specific incident; proce- One case in which a defendant on TSR was murdered after
dures for protecting defendants
[testifying] in court (gang related) and another case were we
had to transfer or move a pretrial defendant to another district.
One client got [his] face slashed in as a result of his cooperaDetails of a specific incident; gention. Numerous clients request information in order to show
eral comment about the frequency
they did not cooperate. This number includes clients who did
of harm; general comment about
harm in prison/prison culture; pro- cooperate, but who may not have received a sentence reduction or whose plea agreement did not contain cooperation
cedures for protecting defendants;
language. These clients believe they will be harmed if other
comments about refusal out of fear
inmates believe or find out the client cooperated. Two clients
017
requested having solitary confinementr 8, 2
protection because
mbe
p
they could not provide the ECF te
n Se docket report to other ined o
vdocket report would show a reduction
mates, since theaECF
rchi
59
for cooperating with the government. No one recalls any
-502
15
No.
e, instances where witnesses were threatened. Third party con Do
h
operators have backed out due to perceived danger.
v. Jo
USA
n incident; proce- one client had to be placed in the BOP witness protection
Details of a specific
ed i
cit
dures for protecting defendants
program due to the severity of the threats against him by
other BOP inmates.
One client knew of a witness murdered in [redacted]. He
Details of a specific incident; comflatly refused to cooperate. He received life after conviction
ments about refusal out of fear;
at trial. I have many clients who ask for ‘fake’ documents.
general comment about the freOne client was beaten while in prison and did lengthy time
quency of harm; general comment
about harm in prison/prison culture in segregation. This problem has increased much in last 2
years. Not sure why.
Details of a specific incident; Takes
One defendant was charged with witness intimidation. Also,
issue with the survey
I assume the survey includes the gov’t threatening witnesses
with charges or perjury, misprision, and/or conspiracy.
Details of a specific incident
One instance of a threat to family members. This was addressed by both counsel. If my docket is any example,
threats and harm do not appear to be a significant problem
in this district.
Details of a specific incident
One of the cases was actively cooperating. The other case
involved co-defendants who had been boyfriend/girlfriend
and were both out on release.

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

121

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 470 of 497

Categories

Open-Ended Comments

One of the main concerns regarding defendants /offenders
in our district is the safety valve requirement. Once in custody and after they plea, [an] inmate has to demonstrate to
other inmates that he/she is not cooperating with the government. As proof of this, they have to show their plea
agreement and [often] they are not willing to comply with
the safety valve for fear of retaliation
Details of a specific incident; proce- One offender was victimized twice by [redacted] gang
dures for protecting defendants
members in [redacted]. He was placed in a hotel for 30 days
for safety and relocated to [redacted].
Procedures for protecting witnesses; One witness was placed in the WITSEC program after codetails of a specific incident
operating. Testimony was not needed because all defendants pleaded guilty. The witness was not a successful participant in the programs due to rule violations.
Other than a general concern about a possible threat, I am
General comment about the freunaware of a specific threat or attacks made to a specific
quency of harm; policy comments;
defendant /witness, and I have handled a fairly heavy crimprocedures for protecting defendinal docket involving “drugs and guns” for years. AUSAs
ants
have also mentioned to me that until recently there was no
reason for alarm, but all of a sudden there is a big push either by defense lawyers and/or DOJ to have everything
17
8, 0
sealed for 35b’s or 5k1s. This is despite rthat2there is not one
mbe
documented incident that n ampte
I e aware of in all the cases that
o S
I have handled archived
of a problem. Many are advocating sealing
9
everything 25 a cooperative nature now but this is in my
50 of
. 15, No
Doe opinion inconsistent with any empirical evidence that i am
ohn
aware of and the first amendment right of the public to
v. J
USA
know about court proceedings and filings. / / /
ed in
cit
General comment about the freOur district has had numerous [redacted] cases and securiquency of harm; procedures for
ty is usually increased during trials/sentencings because of
protecting defendants
rumors of threats. I have very limited information regarding those threats or rumors.
Our practices have changed in recent years to make docket
Procedures for protecting defendand in court references more oblique and less suggestive of
ants; general comment about the
cooperation. Often we [refrain] from discuss[ing] 5K1
frequency of harm; general comdocuments and we [camouflage] them on the docket. We
ments about the sources to identify
have been informed with increasing frequency that codecooperator
fendants purchase transcripts of hearings regarding an alleged cooperating defendant and/or witness and manage to
access electronic dockets with help from others on the outside. These procedures require some careful management
by the judge and others involved in the process.
General comment about the frePlease keep in mind that my courthouse sits [redacted]. I
quency of harm
hear from hundreds of defendants that they were threatened and/or harmed in [redacted] immediately prior their
offenses in the [redacted]. For those who believe that narcotics traffickers are not dangerous criminals need to come
sit in my court and hear/see the real stories of what happens
in [redacted] by such traffickers.
General comment about harm in
prison/prison culture; comments
about refusal out of fear; general
comments about the sources to
identify cooperator

122

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 471 of 497

Categories
Nothing to report
General comment about the frequency of harm
General comment about harm in
prison/prison culture
General comment about the frequency of harm

Open-Ended Comments
Please note that my statistical sample is quite small, in that I
am a relatively new judge ([redacted] on the bench).
Primarily I recall threats against AUSAs and/or one defense
or public defender.
Prison gangs are an on-going problem.

Reported threats typically are brought to the court’s [attention] by defense attorneys during the sentencing hearing,
and mostly pertain to families outside the United States in
drug trafficking cases. I am unaware of any reported threats
being carried out.
General comment about the freReports of threats against cooperating defendants are rouquency of harm; details of a specific tine in this district. Actual harm is more rare, but it occurs.
incident
I have been personally involved in two cases in [redacted]
in which witnesses were murdered.
Seems to me the real problem is what occurs after the coopGeneral comment about harm in
prison/prison culture; procedures
erators begin serving a prison sentence. It is there that felfor protecting defendants
low prisoners request “proof” that the individual did not
cooperate. It’s there, too, where some have to seek refuge in
the SHU. At least in my experience, it isn’t that big of a
problem pretrial.
017
r 8, 2
Some cooperators are so fearful thatethey do not want to
General comment about the fremb
e
receive 5K1.1 reductions n Sept sentences, nor do they
quency of harm; general comments
o to their
ved
want any mentionhiof cooperation in court records or in
about the sources to identify cooprc
59 a
-502
erator
court proceedings. In some instances, defendants who have
o. 15
e, N
n Do not cooperated, or those who did cooperate but did not
Joh
want a sentence reduction, request copies of the sentencing
A v.
n US
transcript and presentence report so that they can “prove”
ed i
cit
that did not cooperate.
General comment about the freSome of the threats were vague in my opinion. I only recall
quency of harm; general comments
one case with specificity, but believe the frequency of the
about the sources to identify coopissue has not increased in the last year. Frankly, when a
motion is filed by the government under seal at or about
erator; procedures for protecting
the time of the defendant’s sentencing-- if it is identified as
defendants
a motion filed by the government, a reader of the docket
could [easily] surmise the sealed motion is a 5K1.1. I am
unsure but believe the “sealed motions” are now listed as
sealed documents and the filer is not identified. This is how
it should be.
Details of a specific incident
The answers to the questions on this page are [estimates]
based on conversations with prosecutors in our office.

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

123

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 472 of 497

Categories

Open-Ended Comments

Procedures for protecting defendants; policy comments

The better prosecutors and criminal defense bar have become much more sophisticated in keeping documentation
reflecting cooperation by third party witnesses as well as
defendants out of the public eye- i.e. no initial formal arrest
paper work and/or bond allowing the defendant to cooperate fully prior to being formally charged which in many
instances is driven by a post-cooperation negotiated plea to
a particular offense that is actually capped in terms of available sentencing options- such as the 48 month maximum
sentence for use of the telephone in a drug conspiracy. In
other instances plea agreements are negotiated on the basis
of specific relevant conduct that may defacto serve to cap
the sentence without the Court necessarily having to formally become involved with the matter of the defendant’s
cooperation. / / Finally, given the fact that the sentencing
guidelines are advisory, along with today’s more infrequent
use of the 21 U.S.C. 851 enhancement, there are more cases
being processed without the Court ever having to address
the subject of a reduced sentence under U.S.S.G. 5K1.1 or
Rule 35(b). / / All of that said, there will never be a perfect
solution to the dilemmas faced by defendants, witnesses,
017
prosecutors, defense attorneys, as well we, as judges. All we
r 8, 2
mbe possible the wrong
might do collectively is to reduceewhere
ept
on S
vedwho is or has been a cooperating
people learning rabout
i
a ch
defendant 259
-50 or witness. Truly, the long-standing practice of
15
No.
e, sealing documents as well as formal sentencing hearings has
n Do not served the laudatory goal of providing anything close to
Joh
A v.
n US
i
a measure of protection for cooperating defendants. /
cited
Details of a specific incident; genThe case I described earlier in this survey was one in which,
eral comments about the sources to if I recall correctly, a warrant was not sealed and retaliation
identify cooperator; general comwas either threatened or likely. I am aware of other anecdoment about the frequency of harm
tal instances in which prosecutors and defense attorneys
have felt retaliation was likely, but I am not aware of any
details. Often these instances are revealed when a prosecutor or defense attorney asks during sentencing to disclose
cooperation information at the bench.
Details of a specific incident; genThe case [referenced] was [redacted], in which [redacted], a
eral comments about the sources to member of [redacted], learned that another member of
identify cooperator
[redacted], [redacted], was quoted in [redacted] presentence report as identifying [redacted] as a made member of
the [redacted]. The page from the presentence report was
shown to [redacted], [redacted], who ordered a hit--the
murder--of [redacted]. [redacted] was convicted of the
murder at trial.

124

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 473 of 497

Categories

Open-Ended Comments

General comment about the frequency of harm; general comment
about harm in prison/prison culture; procedures for protecting defendants

The [climate] is worsening for everyone, cooperators and
non-cooperators, especially in prison. It is reported by clients in our District and nationwide that when you arrive in
prison you are given a certain length of time to prove
through your documents that you are not a snitch. Without
such proof, you are not allowed safe access to the prison
yard. If you can’t prove that you are not a snitch you end
up in segregation or bouncing from prison to prison or
worse.
The consistent theme that we have heard about regarding
General comment about harm in
defendants or offenders in our District, is incarcerated ofprison/prison culture; general
fenders being coerced or threatened while in BOP custody
comments about the sources to
identify cooperator; general comor RRC facility (pre-release) if they did not try to get a copy
ment about the frequency of harm
of their presentence investigation, or plea agreement and
provide it to the threatening party. The threatening party is
usually doing this to ascertain whether an offender has been
a cooperating witness or received a sentence reduction for
cooperation (snitching) to government officials.
Details of a specific incident; genThe Defendant in question not only made a deal with the
eral comments about the sources to Government, he actually testified at a jury trial against the
identify cooperator; general comother two defendants. There was no question 7 that his
but
01
ment about harm in prison/prison
file contained plea deal specifics, andbthat ,the co defendants
r8 2
m e
culture; procedures for protecting
knew what the deal was (itnwas pte
e brought out on cross examo S
defendants
ination before archjury). When he went to prison for his
the ived
59
2crimes, we did everything we could to protect
part 15-the
in 50
No.
oe, his location, as well as his identity, but it somehow leaked
nD
about his true identity.
. Joh
SA v
U
Details of a specific incident
The defendant referenced was residing in our District and
ed in
cit
case agents relocated the individual to another District.
Details of a specific incident
The defendant/witness referred to in this survey is the same
person.
Procedures for protecting defendThe district court has adopted split plea procedure by
ants; general comment about the
which cooperation agreements are protected. We have seen
frequency of harm
no change in the level of threats to witnesses and/or cooperating defendants based on this procedure.
Procedures for protecting witnesses; The [redacted] attempts to obtain protective orders in cases
general comments about the
involving cooperating witnesses, and does not allow that
sources to identify cooperator; gen- information in the jails. Nonetheless, targets and defenderal comment about the frequency
ants infer who the cooperators are from review of their disof harm; general comment about
covery and spread the word about their cooperation in the
harm in prison/prison culture
jail. We have prosecuted two witness retaliation cases in the
past three years, and have investigated several others. In the
past several years, threats against cooperators have increased, and pre-trial separation orders have been ineffective in avoiding confrontations.
Procedures for protecting defendThe documents where it was apparent that someone was
ants; general comments about the
cooperating were filed under seal. However, sophisticated
sources to identify cooperator
reviewers of docket entries usually presume that that means
cooperation.

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

125

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 474 of 497

Categories

Open-Ended Comments

Nothing to report

The entire current staff of probation officers were polled.
There were no other cases identified.
Details of a specific incident; genThe first case I mentioned involved very serious assaults on
eral comment about harm in pristhe defendant who provided useful cooperation relating to
on/prison culture; procedures for
a number of cases. He was threatened and then beaten in
two different prisons before finally being provided what
protecting defendants; general
appears to be secure housing. He was also in pretrial detencomment about the frequency of
tion for many years in unacceptable segregated isolation
harm
because of the recognition he was in the process or would
cooperate. (In my experience, defendants who cooperate
during pretrial supervision often end up being housed in
the most segregated and restrictive conditions.) This particular defendant’s son, who was incarcerated in a state facility, was also threatened in connection with his father’s
cooperation. Viable threats were made against the family
members also—who as a result had to move from their
home. / / The main pattern involved in other cases involves
defendants who are in pretrial detention who face threats
on the safety and welfare of the family members at home in
[redacted] or [redacted] if they cooperate. We often do not
end up knowing what happens under these circumstances.
17
These defendants usually are too scared ,to 0even alert aur8 2
mbe
thorities regarding the threats.e/p/te
on S
Takes issue with the survey; general The format of thishived was troublesome for me because
c survey
9 ar
comment about the frequency of
this is 5-50a 5
not 2 yes/no/# of cases issue. I don’t have exact num.1
No
harm; general comment about Doe, bers, but I can say that in the last 5 years, the number of
ohn
harm in prison/prison culture; gen- present and former clients who have demanded that I prov. J
USA
eral comments about the sources to vide them their discovery or sentencing documents to show
ed in
cit
identify cooperator; procedures for
to other inmates to prove that they are not cooperating has
protecting defendants; policy comskyrocketed. The demand to see PSR’s is very high also,
ments
which causes problems for inmates because a lot of
jails/prisons will not allow inmates to receive them in the
mail. Many inmates are branded as snitches who are not
actually cooperating, but there is often no way to prove that
they are not cooperators. Additionally, a lot of my clients
do not want to ask to go into PC because it is a horrible way
to serve their sentences and the fact that they requested PC
once will follow them around to other institutions and increase the likelihood that they will be placed their against
their wills, for institutional safety. I honestly don’t know
how to balance a defendant’s right to review the evidence
against him with protecting him from harm based on suspicion, sometimes baseless, that he is cooperating.
The government regularly claims that cooperators are at
General comment about the frerisk but have never cited an example. AUSAs want files
quency of harm; procedures for
sealed to conceal cooperation agreements even AFTER the
protecting defendants; general
cooperators testified in open court in front of the defendcomments about the sources to
identify cooperator
ant. Fear is rampant. I have a [redacted] participant who
testified twice against a [co-conspirator] in a case which
lasted more [than] [redacted]. She was never concerned.

126

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 475 of 497

Categories

Open-Ended Comments

Procedures for protecting defendants; policy comments

The harm or threats of harm experienced by my clients was
directly related to the practice of one Judge who refused to
seal documents in his cases and NOT to the practice or Local Rule with respect to sealing. This particular Judge’s philosophy was ‘this is a public courtroom, the public should
have access.’ As a consequence, and to avoid harm, many
clients were advised of his practice and urged to factor that
practice into the decision on whether or not to offer assistance.
Details of a specific incident
The last two cases, individuals went to the homes of defendants’ families and threatened them, if defendant cooperated.
General comment about the freThe most common threats and attempted acts of harms,
quency of harm; general comments
that I have encountered, occur when a defendant or a witabout the sources to identify coopness is a member of a well knit group of friends, gang
erator
members or connected families. Some of the acts of intimidation are not assisted by the contents of court orders,
opinions or events in open court. Community knowledge
of events is a common source of information about who is
(or might be) allied with police or prosecution. But there
are incidents where a witness or a defendant’s7role for the
01
prosecution is uncovered only because lawyers and judges
r 8, 2
mbe
do not consider the danger Septe
to cooperators. There are genon
eral incentives (incgangd
hive cases) to promote a policy of harm9 ar
ing snitches 5
502 within local culture.
. 15No
General comment about the fre- Doe, The most frequent [occurrence] of threats is with cooperatohn
quency of harm; general comments
ing non-defendant witnesses. Their cooperation is revealed
.J
SA v
about the sourcesin U
through discovery: disclosure of immunity letters and ined to identify coopcit
terview reports. I had one witness kidnapped and beaten
erator; details of a specific incident
due to cooperation during investigation. Several other witnesses have been threatened once the witness list for trial is
released.
Takes issue with the survey; general The number 50 is a plug number because you would not
comment about the frequency of
accept a three figure number. These sorts of threats happen
harm
so routinely in gang and drug cases that i have lost count.
The number of times I have become aware of such threats is
EASILY in the hundreds.
General comment about the freThe number of instances of threats were down in 2014 bequency of harm; procedures for
cause the number of cases were down dramatically. Most
protecting defendants; general
defendants request that counsel alter court documents becomments about the sources to
cause inmates demand the plea agreements, court docket
identify cooperator
entries, and a [transcript] of the proceedings. If the inmate
does not turn over the documents, they claim they are beaten. Sealing the documents would not be helpful in these
cases. The larger problem is that co-defendants learn of
cooperation against them and then disseminate the information to other co-defendants or unindicted coconspirators. Mentally challenged defendants and older
defendants seem to particularly be at risk.

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

127

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 476 of 497

Categories

Open-Ended Comments

Procedures for protecting defendants; general comment about the
frequency of harm; general comments about the sources to identify
cooperator

Additional comments provided over email: For more than
three years we have following a practice of attaching a
sealed supplement to every Statement in Advance of Plea
regardless or whether there is a cooperation agreement or
not. We do this to avoid it being apparent on the docket
whether there is a cooperation agreement. Prior to our
court adopting this practice, we received regular comments
from counsel that defendants were subjected to threats and
accusations once they arrived at the prison. I have not received similar comments since we adopted this practice. I
hope this may be of help.
Takes issue with the survey; general The numbers listed above are only place holders to enable
comment about the frequency of
us to complete the survey. What numbers we do have and
harm; comments about refusal out
the relevant explanations are attached below. / / Not including the defendants regarding whom you’ve provided
of fear; procedures for protecting
information in this survey, how many more defendants
witnesses; general comments about
from cases prosecuted by your office have you learned were
the sources to identify cooperator;
harmed or threatened in the past three years? / / 113 – This
general comment about harm in
number is based on separation memos filed with the USMS
prison/prison culture
to keep cooperators separated due to safety concerns and
covers the years 2012 thru 2014. It may overstate the num17
ber of threats from co-defendants as er 8, 20 these separamost of
mb AUSAs and may not
tion requests are based on n Septe of
concerns
o
necessarily involvehan d
c ive actual threat. / / Not including the
ar
witnesses 0259
5 regarding whom you’ve provided information in
. 15, No
Doe this survey, how many more witnesses from cases prosecutohn
ed by your office have you learned were harmed or threatv. J
USA
ened in the past three years? / / 22 – This number is based
ed in
cit
on the number of times the USAO provided assistance to
witnesses to relocate due to concerns for their safety. This
number probably under-estimates the actual number as it
does not include those witnesses assisted by investigative
agencies or witnesses who relocate on their own. / / / In the
past three years, how many defendants withdrew offers of
cooperation because of actual or threatened harm? / / While
there is anecdotal evidence of defendants who withdraw
offers of cooperation out of fear of retaliation, exact numbers are not known. But it is believed to be rare. / / In the
past three years, how many defendants refused cooperation
because of actual or threatened harm? / / We do not keep
records of defendants who refuse to cooperate because of
actual or threatened harm. However, regularly we do have
defendants who offer to plead guilty and decline to cooperate in any way against their co-defendants for fear of retaliation. / / In the past three years, how many witnesses withdrew offers of cooperation because of actual or threatened
harm? / / Again, we have no specific number; it does happen, but it is rare. / / In the past three years, how many witnesses refused cooperation because of actual or threatened
harm? / / Unknown / / / Please use the space below to pro-

128

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 477 of 497

Categories

Open-Ended Comments

vide any additional information about harm or threats of
harm experienced by defendants and/or witnesses (or their
family or friends) from cases prosecuted by your office in
the past three years. / / In every case involving gangs, illegal
narcotics, violent crime and now even some white collar
crimes, our office is very sensitive to the safety of cooperators, be they defendants or witnesses. And while we don’t
currently have a specific system for tracking threats against
cooperators, anecdotally, we know it happens regularly. / /
In the last three years, the U.S. Attorney’s Office has provided assistance in [redacted] different cases to witnesses
and/or their families to temporarily or permanently relocate due to concern for their safety as a result of their cooperation with the government. And while not specific to the
last three years, people have been murdered on suspicion of
being a government witness, even when they were not. In
the same time period, our office has sponsored [redacted]
defendants to the Federal Witness Security Program, and
we anticipate [redacted] more this year. / / There are several
ways by which cooperation becomes known. The criminal
element has its own intelligence system which can be very
17
effective. In a recent case we learned rmembers of a gang
8, 20
mbe
were accessing PACER to look te documents to confirm
ep for
on S
ved
cooperation. Therchi common method to signal cooperamost
5 a
tion seems2to9be the delay between a guilty plea and sen-50
15
No.
e, tencing. If the defendant is not sentenced in a timely mann Do ner and removed to BOP, he is suspected of cooperating
Joh
A v.
n US
i
and may be at risk. Even at BOP, inmates are demanding
cited
that newly arrived inmates provide copies of their plea
agreements or transcripts of plea proceedings to verify they
were not cooperators. / / At times, as a result of a motions
hearing or of the discovery process, witness information is
obtained. Most of the direct assistance to witness mentioned above [redacted] is a result of one of these two
events. / /
Comments about refusal out of fear; The offenders are reluctant to report the threats/harm to
details of a specific incident; general law enforcement since in some instances, the individuals
reside in the same community; some have gone back to
comments about the sources to
their prior criminal associates to seek support--could pose a
identify cooperator; general comrisk to returning to the “gang lifestyle;” all incidents have
ment about the frequency of harm
been reported to federal or local authorities, but very little
action has been taken; one offender asked for political [asylum] as threat was overseas; offenders are not aware of how
the information “leaked and the threats are coming by way
of messages sent by unknown individuals or means (e.g.,
unknown texts, callers).
Details of a specific incident; genThe one case I recall involved a witness testifying at trial,
eral comments about the sources to and the threats came from defendant’s family.
identify cooperator

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

129

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 478 of 497

Categories

Open-Ended Comments

Details of a specific incident

The only cases reported as possible threats involved codefendants (both female) who has been continuously
threatened and abused throughout the course of the offense
generally. Once they made the decision to cooperate, there
were no further threats or intimidation, but the women
remain fearful based on both actual and threatened harm to
them during the course of the offense. There is nothing to
indicate that the fact of their cooperation resulted in additional threats or actual harm in either case.
Details of a specific incident
The only incident I am aware of is the alleged murder of an
FBI informant in a bank robbery case. I do not recall the
details of how the informant’s identity may have been disclosed. The U.S. Attorney never prosecuted the murder. He
would have additional information that I do not have.
General comment about the freThe only information the office has relative to threats are a
quency of harm
number of allegations from defense attorneys that a client
or family member was threatened. None of the allegations
have been confirmed as being valid or related to the case
being prosecuted.
Details of a specific incident
The prison guard was accused of “diming” the defendant.
Never able to verify.
17
8, 20
The rate of former clients (defendants) rincarcerated at BOP
General comment about the frembe
ep their plea agreement, final
facilities requesting copies n Sthete
quency of harm; general comment
o of
ved sheet, and sentencing transcripts,
judgment order,rchi
docket
about harm in prison/prison cul59 a
rose dramatically in calendar year 2014.
ture; general comments about the
-502
o. 15
e, N
sources to identify cooperator
n Do
h
The Rule 35 and 5K process is problematic. Our judges are
General comments about v. Jo
the
USA
ncooperator; gen- resistant to routinely sealing these motions. We are increassources to identify
ed i
cit
ingly hearing from cooperators about information taken
eral comment about the frequency
from public filings being posted on sites such as “Who’s a
of harm; procedures for protecting
defendants; general comment about Rat”. Additionally, threats to witnesses and cooperating
defendants often result when the defendant learns from the
harm in prison/prison culture
discovery process that a particular co-defendant or witness
is cooperating. Lately, we have begun hearing from cooperators in the BOP that when they leave their assigned institution on an ASR they are branded a cooperator and are retaliated against when they return.
Takes issue with the survey; general The survey asked for overall numbers regarding harm or
threats of harm to defendants and witnesses over the last
comment about the frequency of
three years. Our office does not have a system that captures
harm; comments about refusal out
of fear; details of a specific incident; such data, and therefore accurate numbers were difficult to
collect. Individual Assistant United States Attorneys who
general comments about the
are currently in the office tried to provide information
sources to identify cooperator
based on their recollection of cases and incidents. Accordingly, we do not feel like we have an adequate quantitative
result. Moreover, the actual numbers reported do not provide an adequate picture of the seriousness of the problem
as, in our District, the fear of being identified as a cooperator because of fear of harm or retaliation has dramatically

130

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 479 of 497

Categories

Open-Ended Comments

reduced the number of individuals willing to provide information to the government and testify against others.
Indeed, the experience in our District is that we are unable
to get individuals to cooperate because of their fear that
something will happen to them or their family if they do.
This seems to be an increasing problem over the years. One
reason for this change is the increased focus on drug trafficking organizations with connections to [redacted]. Defendants and witnesses are worried about violence against
themselves as well as their families in [redacted]. For example, one AUSA noted that in her last three cases that involved drug trafficking organizations that had connections
to [redacted] (all large, multi-defendant cases, which used
wiretaps), none of the defendants or putative defendants
would cooperate for fear of retaliation against them or their
families, both in [redacted] and [redacted]. In addition, in
the violent crime cases, witnesses will often refuse to provide information, from the earliest stages of the investigation, to law enforcement for fear of retaliation. Even when
we have had success in obtaining their testimony through
grand jury testimony, these same witnesses will often refuse
17
to testify at trial or will provide [a] different 0
r 8, 2 version at trial.
mbe
The witnesses do not want Septe perceived as cooperating
to be
on
with the government.ed/ / Accordingly, in response to the
chiv
9 ar
questions0above regarding how many witnesses and de5 25
. 15- refused cooperation because of actual or threatNo
, fendants
Doe
ohn
ened harm, the answer that we want to provide is “many.”
v. J
USA
A precise number is not available. It is very difficult for us
ed in
cit
to capture how many witnesses and defendants have told us
that do not want to cooperate because of the risk. It seems
to happen regularly in violent crime and drug trafficking
cases. / / In addition, the stigma of being a cooperator/perceived as a cooperator seems to be so problematic
that we have heard from defense counsel that even if their
client/defendants provide safety valve proffers pursuant to
USSG 5C1.2, they receive word from co-defendants/others
in the organization that they are at risk of retaliation. The
number of safety valve proffers has reduced dramatically,
and the repercussions of refusal are less significant (since
there has been a policy decision to apply few mandatory
minimum sentences in drug cases). / / The document that
most signals that someone is cooperating is a sealed plea
agreement. If a plea agreement is sealed, it is a “red flag”
alerting others that a particular defendant is cooperating, as
there is no other reason to seal the plea agreement. / /
Moreover, in most of our threat incidents, the cooperating
witnesses/defendants were also identified through the discovery process. Many witnesses had to be moved for their
safety. /

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

131

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 480 of 497

Categories

Open-Ended Comments

Details of a specific incident

The threats arose in a RICO case involving a gang. Some of
the members of the gang cooperated with the Government,
and they and their families were subjected to threats from
the gang.
General comment about the freThe threats I see only arise in (1) gun prosecutions of street
quency of harm
gang members and (2) drug cases in which the witness or
defendant has direct ties to [redacted] dealers.
Details of a specific incident; genThe threats involved were between rival families while a coeral comment about the frequency
[defendant] who was a member of one family was cooperof harm
ating against a member of another family during a co[defendant’s] trial. These types of threats are somewhat
typical between the large extended families [redacted].
The USAO for the [redacted] prosecutes major crimes
General comments about the
committed by or against [redacted]. In such cases cooperasources to identify cooperator; detors are readily identified by defendants and their families.
tails of a specific incident; general
This circumstance routinely leads to attempts to intimidate
comment about the frequency of
witnesses. Additionally, in at least one public corruption
harm
case from a [redacted] who cooperated with the government as a witness was the target of an attempt to oust him
from office. That effort is believed to be motivated by a
desire to retaliate against the witness for his cooperation. / /
017
/
r 8, 2
mbe
pte
The worst case I had involvedethe murder of several family
Details of a specific incident; genon S
ved
members of tworchi
defendants (mother and son) to punish
eral comment about the frequency
9a
them15-5025
for losing a substantial amount of contraband and
of harm; policy comments; proceNo.
dures for protecting defendants; Doe, also to intimidate them into not cooperating. Credible
n
threats against defendants are frequent. I do not recall a
general comments about theJoh
v.
USA
precise number, but they are credible enough to keep the
sources to identifyncooperator
ed i
cit
defendant from cooperating and receiving a lower sentence.
Additional comments provided over phone: Respondent
completed the survey with information, but he really focused on the last year and not the last three years. He said
he feels like this happens 2-4 times per year in his district,
and it is most often the defendants. Defendants will qualify
for the “safety valve” but then not take it out of concern of
being harmed.
He suggested that the committees consider two levels for a
filing system. Current CM/ECF only protects information
through sealing. The sealed event still provides a record,
and drug traffickers know how to read the dockets for what
this sealed information is really saying. If there were a public version and a private version of the docket you could
better protect the information. Sealing everything just triggers an alarm.
He had a case involving a drug conspiracy where the main
defendant was the brother of a high level member of a drug
cartel. He told his lawyer he would not cooperate because
he was concerned about the safety of his family and his

132

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 481 of 497

Categories

Open-Ended Comments

wife’s family back [redacted]. The lawyer had the [redacted] contact people in [redacted] to obtain information
about the cartel [redacted]. This information was provided
to federal authorities so the defendant could receive the
benefits of cooperation. Nothing was ever signed, and the
judge was made aware of the cooperation only through
conversations with counsel, both prosecution and defense.
If there were a private version of the docket this information could be recorded, even noted in a pre-sentence
report.
There are frequently threats of harm to defendants’ families
General comment about the frequency of harm; details of a specific since my docket is close to [redacted]. In specific cases,
such as the [redacted] trial, there were threats to defendincident; general comments about
ants, witnesses, families, etc. In the gang conspiracy cases,
the sources to identify cooperator;
there are usually threats to defendants, witnesses and family
procedures for protecting defendmembers. I am not aware of any documents [identifying]
ants
any person individually, but, of course, I do not know what
happens once the BOP gets custody. All 5K motions and
orders are filed as are Rule 35 motions and orders and Presentencing memos are also sealed at sentencings, but have
to be unsealed for appeal and other post sentencing actions.
17
Nothing to report
There has been no actual physical harm , 20 defendant to
r 8to a
mbe
my knowledge. Defendants Septe
are more concerned with peron
ceived harm andrchivefew [ever] receive an actual threat of
very d
9a
harm. 5-5025
.1
No
General comment about harm in Doe, There is a disconnect in the Bureau of Prisons between
ohn
prison/prison culture; general
Washington senior management and the experience on the
.J
SA v
comment aboutdthe U
ground. I believe senior management has expressed the
e in frequency of
cit
view that harm to cooperators while incarcerated is miniharm; general comments about the
sources to identify cooperator; pro- mal. We have a federal prison in the district and have talked
to the warden. He has indicated that the problem is significedures for protecting defendants
cant and half of his [Special] Housing population consists
of cooperators in protective custody. There are also a variety of other means those intent on harming cooperators are
using to gather cooperation data. I presume there will be
space elsewhere in the survey to report those findings. Additional comments provided in email: Those who are seeking to identify and verify cooperation of various defendants
are extremely sophisticated. They are using a variety of
means to gather information. By way of example, they are
requiring incarcerated, suspected cooperators to obtain a
copy of their judgment and turn it over to the prison gangs.
There is apparently no BOP policy precluding this. They are
requiring cooperator members’ families to obtain transcripts and judgments so that they can compare sentencing
exposure with sentencing results, and such documents
clearly reflect cooperation without expressly saying so.
In this District, we are using all means at our disposal to
refrain from disclosing cooperation, including sealed doc-

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

133

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 482 of 497

Categories

Open-Ended Comments
uments, sealed proceedings and attachments to the judgment, among others. However, those protocols are not
eliminating the problem.
There is also a developing trend in our Circuit jurisprudence that seems oblivious to the cooperation issue. We do
not discuss cooperation in the context of a plea, but we
fully recognize that the prospect of a cooperation departure
is a prime motivating factor for the plea. The Circuit has
issued some opinions that question the absence of such a
conversation during the Rule 11 plea colloquy.

This entire problem is national in scope, and would benefit
from a national policy. However, if there continues to be a
disconnect between BOP’s national management and prison officials on the ground, I am not sure that any policy
will alleviate the problem.
There seems to be an organized effort in the BOP by some
General comment about harm in
inmates to determine whether other inmates have/are coprison/prison culture; general
operating. We have received an uptick in former clients
comment about the frequency of
wanting information to prove they didn’t cooperate.
harm
17
8, 0
General comments about the
There were direct threats to me and rmy 2family that the
mbe
sources to identify cooperator; pro- Marshall addressed. If there Sepclosed sentencing hearing it
are te
on
ved discuss cooperation. I don’t mencedures for protecting defendants
is presumed thatrchiis to
it
9a
tion 15-5025
the [cooperation] agreement on the record or close a
No.
e, sentencing hearing unless specifically requested by the parn Do
Joh
ties. Attorneys regularly [practicing] before me understand
A v.
n US
this and it works well. There are always reasons for a varied i
cit
ance regardless of cooperation. Newer attorneys want to
discuss the cooperation agreement in detail and we have to
close the hearing. It is no secret after that.
Nothing to report
There were none in 2013 or 2014
Takes issue with the survey; general
comment about the frequency of
harm; comments about refusal out
of fear
Takes issue with the survey; comments about refusal out of fear
General comments about the
sources to identify cooperator; general comment about harm in prison/prison culture
Takes issue with the survey

These are not all-inclusive. Exact numbers can’t be known.
The “no snitching” culture is strong in [redacted]. We have
not kept statistics on this, but many witnesses and defendants fear to cooperate without identifying their reasons.
these cases are difficult to follow. The clients stop talking to
us when they get really scared
They have access to PACER at the prisons and so prisoners
and/or guards go through the dockets and tell people what
the charges were and what the sentences were. This leads to
being able to figure out if they cooperated.
This entire survey is a waste of time.

General comment about the frequency of harm; comments about
refusal out of fear; procedures for
protecting witnesses; procedures for
protecting defendants

This is [redacted] and many defendants have links to
DTOs. As such, defendants often have to balance the possibility of threats against the possibility of reduced sentences.
Indeed, AUSAs in our district believed that the perceived or
potential of threat or harm (without any actual threat made
or harm inflicted) deters many defendants from cooperat-

134

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 483 of 497

Categories

Open-Ended Comments

ing and/or inhibits them from following through with the
cooperation addendum. In addition, we were involved with
several incidents in 2014 in which cooperators had to be
relocated or placed in WITSEC due to threats. Finally, we
also would note that, several years ago, our district court
developed a docketing system, in consultation with USAO
and FPD, to endeavor to better protect cooperators entering pleas. Called the Master Sealed Event calendar, it creates
a docket skip early in every case, and then going forward a
separate cooperation addendum gets appended, without a
docket skip, to a special sealed calendar.
Policy comments; general comment This is not a problem the judiciary can solve by sealing
about harm in prison/prison culcourt records because inmates are required to “prove” they
ture; general comments about the
have not cooperated by producing their own paperwork. If
sources to identify cooperator; gen- the inmate has cooperated, which is often the case, he simply has no choice but to check himself into the Segregated
eral comment about the frequency
Housing Unit because he knows the other inmates will acof harm
cess PACER and learn that he has cooperated. I have even
had requests from defendants and attorneys to seal a defendant’s entire court file so no member of the public could
access it. Even then, however, the sealing of 7
court docu1
ments related to sentencing raises a redr flag 0 to whether a
8, 2as
mbe
particular defendant has cooperated. This is a serious probepte
on S
lem that needs tochived
be promptly addressed by the DOJ. De9 ar
fendants5025not understand when they enter a plea and
- do
15
No.
e, cooperation agreement that they are likely agreeing to serve
n Do their sentence in solitary confinement. Many of these inJoh
A v.
n US
i
mates serve years in the SHU and if they are transferred to
cited
another institution the process simply starts over again and
they enter the SHU for their own protection at the new
institution. Although this is a DOJ/BOP problem, the judiciary has an interest in it because judges accept these pleas
and they sentence defendants pursuant to the pleas. A sentence served in the SHU is a very different sentence than
one served in general population. There is no programming. Any inmate serving a lengthy sentence in the SHU
stands little if any chance at rehabilitation. The judiciary
should insist the DOJ address this increasing problem.
Takes issue with the survey
This is useless when the relative of a defendant was murdered.
General comment about the freThis issue is raised continually by defense counsel but I have
quency of harm; Takes issue with
no evidence of actual harm resulting. However, I lose track of
the survey
cases after sentencing, so I am not the best person to ask.
Details of a specific incident
This response only represents one case.

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

135

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 484 of 497

Categories

Open-Ended Comments

General comment about the frequency of harm; general comment
about harm in prison/prison culture; general comments about the
sources to identify cooperator

General comments about the
sources to identify cooperator

Threats against actual or perceived cooperators are very
common. There is hardly a drug case where the ones caught
with the drugs (or their families) are not threatened by
leaders of the drug trafficking organizations. Others in the
jail suspect cooperators when they get pulled from the facility and brought for a debrief. The government often discloses to codefendants the cooperation of one in order to
coerce guilty pleas. I have never had a case where cooperation was learned from the filing of any document or something said in the courtroom. A person’s cooperation is usually discovered or suspected long before the govt files a
5K1.1 or Rule 35 motion.
Threats have been made after release of [discovery] (particularly Jencks).

General comment about the frequency of harm; general comment
about harm in prison/prison culture; details of a specific incident;
procedures for protecting defendants; procedures for protecting witnesses

Threats lower because our caseload has dropped since US
Atty doesn’t bring many cases here (he prefers [redacted]
with lesser penalties). At BOP, prisoners often demand to
see PSR or dkt sheet to alert them to prior cooperation. It’s
dangerous to give up documents and dangerous not to.
One of my trials was against killers of a witness. Coopera017
tors often face disapproving and threatening family and
r 8, 2
mbe
former friends when theyn get pte on the stand. It causes
Se up
do
some to be veryacautious and not especially good witnesses.
chive
9 r
Family -5025
estrangement is a strong motivator to keep silent. A
. 15
, No
Doe number of my defendants or cooperators are in WitSec
ohn
and/or protective BOP custody.
.J
SA v
General commentn U the freThreats of harm and harm to inmates are not limited to
ed i about
cit
quency of harm; general comment
cooperators. Sex offenders and clients who victimize chilabout harm in prison/prison culdren receive some of the worst threats and injuries. It is
ture; procedures for protecting devery common for inmates to request sentencing documents
fendants; general comments about
to prove they are not cooperators or sex offenders. When
the sources to identify cooperator
an inmate arrives on a housing unit in a BOP facility they
are required to prove they are not a snitch or a sex offender.
If they do not or cannot prove they have “clean paper” they
have to request protective custody. Many of these clients
end up serving their sentences in the most restrictive conditions with no access to treatment or other programs. They
live in fear even in protective custody. The prisons are so
understaffed that prison [authorities] rely on inmates to
keep order. This system of social stratification is therefore
tolerated if not condoned. While PACER and CM/ECF
have conferred great benefits they also have made life much
more difficult for many inmates. Many inmates have someone on the outside with access to PACER to verify the status of other inmates. It is not hard to spot a snitch or a sex
offender if you have access to PACER.

136

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 485 of 497

Categories

Open-Ended Comments

General comment about the frequency of harm

Threats of harm are often recited to me from defendants
during sentencing but rarely do I have any method of verifying their reliability. I do not doubt, however, that retribution for cooperation is a serious concern for many defendants faced with the Hobson’s choice of cooperating or not
receiving the most favorable plea agreement or the 5K or
Rule 35 motion essential for avoiding the minimum mandatory sentence.
Threats of harm to cooperators are routine in our principal
General comment about the frepretrial detention facility and at various BOP [institutions].
quency of harm; general comments
Cooperators are sometimes identified through discovery
about the sources to identify cooperator; general comment about
documents when the case goes to trial (or very close to triharm in prison/prison culture; pro- al). We have reports of defendants (whether they cooperatcedures for protecting defendants
ed or not) being told to provide sentencing and/or plea
transcripts to prove to others at a BOP facility that they did
not cooperate. Cooperators sometimes also are identified
(or believed to be identified) through J&C’s that contain a
sentence not seeming consistent with the charges. We limit
access to some documents sent to the BOP by requiring
that they be viewed in the Warden’s Office (or some other
restricted space).
017
General comment about the freThreats of harm usually made to cooperators while they are
r 8, 2
mbe
quency of harm; procedures for
in pretrial detention with n Septe
co-defendants. A request is then
do
protecting defendants
made to transferrto ianother detention center or to a differch ve
9a
ent area 5025 present detention center. These requests are
of the
. 15, No
Doe almost always granted.
ohn
General comment about theJ
Threats seem to occur more often when the Govt. lets cov. freUSA
quency of harm; general comments
defendants know that a cooperator will testify at trial. At
ed in
cit
about the sources to identify coopsentencing, threats against cooperators [are] used to
strengthen the Govt’s 5K1 motion on behalf of the cooperaerator
tor.
General comment about the freThreats that I am aware of were addressed either to me or
quency of harm
to the prosecutor in a given case. I am unaware of any witness that has been threatened, and I have not received any
reports from the Bureau of Prisons of harm done to a cooperating defendant/inmate.
General comment about the freThreats to co-defendants, witnesses and victims have ocquency of harm
curred in assault, rape, child sexual abuse and drug conspiracy cases. Threats of harm are a particular problem in
[redacted] cases.
General comment about the frethreats to cooperating co-defendants are reported fairly
quency of harm; policy comments
frequently but I do not know if they are real threats or just
talk. It often appears to be just talk. It is hard to solve the
problem, because the identity of the cooperating codefendant or witness usually cannot be kept from the defendant, who is usually the perceived source of the threat.
General comment about the freThreats to victims, witnesses and cooperating defendants
quency of harm
has been increasing each year.
Nothing to report
to my knowledge [there] have been no threats

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

137

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 486 of 497

Categories

Open-Ended Comments

Details of a specific incident; general comments about the sources to
identify cooperator

Two co-defendants were beaten in pre-trial detention when
discovery/Jencks statements were given to defendants in jail
and they learned of the co-defendants’ cooperation. / An
informant was killed when a gang learned he was informing
to law enforcement.
Details of a specific incident; proce- Two multi-defendant [redacted] cases in parallel prosecudures for protecting defendants
tions in which each had one or more cooperators and one
in each case had veiled or express threats of violence or
physical harm to the [cooperating] defendant or his family
members which resulted in permission for each of the
threatened families to relocate to another state pending
completion of the case. The case ultimately ended with
each/all of the defendants entering pleas of guilty and the
last of them was sentenced [redacted].
General comment about the freUncertain of number, but there are a few cases that have
quency of harm
been verbally threatened.
Procedures for protecting defendUsually the government and defense counsel have an
ants
agreed upon approach to these matters.
Very few defendants ever tell me about threats or harm
General comment about the freonce they are sentenced. I have had a [few] (maybe 3-5)
quency of harm; procedures for
letters from prisons saying they are being threatened. In
protecting defendants; general
017
those situations we tell the AUSA berprobation. Roughly
or 8, 2
comment about harm in prism
on/prison culture; comments about half of the clients who couldepte
S cooperate choose not to. A
d on
portion of theseaare ive
refusal out of fear
chconcerned about their [safety].
r
59
Takes issue with the survey
Very 15-50to predict on a case [by] case basis.
hard 2
.
, No
General comment about the fre-n Doe Virtually every defendant that we represent who ends up in
oh
v. J
quency of harm; general comment
BOP custody calls us to request proof that the defendant
USA
ed in
about harm cit prison/prison culture did not cooperate. Each inmate tells the same story -- he is
in
confronted shortly after arrival at a BOP facility by an inmate or inmates saying that he has x number of days to
prove he is not a cooperator or he will be beaten. Defendants routinely ask us to do things we cannot do -- i.e., provide a fake docket entry, fake statement of reasons for sentence, or to buy transcripts revealing the lack of cooperation.
We are not allowed to provide copies of discovery and pre
Procedures for protecting defendsentence reports to defendants detained due to potential
ants; policy comments; general
threats of harm. However, this prohibition limits the decomment about harm in prisfendant’s ability to thoroughly review the evidence against
on/prison culture
them. / Often, once the Defendant has been sentenced I
have no further contact so I may not know if cooperation
has [led] to threats of harm once in BOP custody.
Details of a specific incident
We can only recall one other case approximately 6 years ago
where a cooperator was assaulted due to his cooperation
while in pretrial detention.

138

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 487 of 497

Categories
General comment about the frequency of harm; general comment
about harm in prison/prison culture; general comments about the
sources to identify cooperator
Takes issue with the survey; nothing
to report

Open-Ended Comments
We constantly hear from clients about their desire to have
documents to use in BOP to prove they are not cooperating. That number is in the hundreds. Media coverage of
sentencings on TV leads to threats and violence against our
clients. They are [savvy] enough to know that a sentence is
too low following a guilty plea without cooperation.
We do not track this information so I cannot answer these
questions with a specific number so I had to put 0.

We do not track this information, so my numbers understate the occurrence. There has been a large increase in
numbers of defendants calling or writing from BOP asking
for their docket sheet. It is clear that most of the time it is
because they are being pressured to produce this info to
other prisoners. In one instance, another prisoner could be
heard in the background telling my client what to ask for. /
However, we don’t track our defendants once they get to
BOP, so we would not normally receive information about
threats within BOP. Defendants who come back to us on
Supervised Release Violations after release relate that this
practice of checking docket sheets inside BOP is very common.
17
8, 20
General comment about the freWe experience this difficulty allethe er
mb time, and constantly
ept
quency of harm; procedures for
spend funds moving witnesses.
on S
ved
i
arch
protecting witnesses
259
-50two cases that fit the criteria of the [survey]. The
15
Details of a specific incident; proce- We .found
, No
dures for protecting defendants n Doe first case is outlined above. Basically, the defendant was on
Joh
A v.
bond and while he was on bond, he was working as a confin US
i
dential informant. While on bond, he reported receiving
cited
death threats and was relocated for a time. He was in protective custody by A.T.F. So while he was on pretrial release
we know he received death threats. We found out that after
the defendant was on supervision by the probation office he
was shot to death at a local bar. The second case involved a
defendant reported being intimidated but not threatened.
He reported a truck would drive by his house and park
there and watch him. He noted several individuals also approached him and asked him questions about his family.
We generally seal plea agreements with cooperation proviProcedures for protecting defendsions, but it is an unsatisfactory approach. Inmates have
ants; general comments about the
sources to identify cooperator; poli- become sophisticated in reading PACER, and many undercy comments
stand that a “sealed event” around the time of the plea is a
strong indicator that the defendant is cooperating. This
issue is of great concern to us, and we welcome the attention that is being paid to it.
General comment about the frequency of harm; general comment
about harm in prison/prison culture; general comments about the
sources to identify cooperator

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

139

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 488 of 497

Categories

Open-Ended Comments

General comment about the frequency of harm; details of a specific
incident; general comment about
harm in prison/prison culture

We have a large number of gun and drug cases that arise in
the inner cities and often with gang involvement. It is very
common for witnesses in these communities to experience
threats and intimidation. In several state prosecutions witnesses have been harmed and in some cases murdered. We
have not had any witnesses murdered but it is not uncommon for a [witness] to report that fellow gang members
have made threatening remarks to them. In one of the cases
referenced earlier a witness was confronted at the door to
her house by a man with a gun threatening her and her son
because her son was a witness to a shooting and warning
not to talk to the authorities. Threats and assaults in jail on
cooperating defendants or those thought to be cooperating
is not uncommon.
General comment about the freWe have a lot of anecdotal evidence from defense counsel
quency of harm; general comment
that defendants are being confronted in BOP facilities based
about harm in prison/prison culon cooperation (documents from PACER like 5K or Rule
35 motions, or even cooperation paragraphs in plea agreeture; general comments about the
sources to identify cooperator; pro- ments), however, counsel have been reluctant to give us
specifics about those threats. Many of our cases start out
cedures for protecting defendants;
procedures for protecting witnesses; with the state, and defendants use documents from the state
017
case, like complaints or search warrants,8to2find out who is
details of a specific incident
r ,
mbe Additional comcooperating and retaliate nagainst them.
epte
o S
ved
ments provided rchi phone: Respondent noted that his
over
a
district -sees 59lot of harm to defendants and witnesses, but
502 a
15
No.
e, court documents, at least PACER documents, are rarely the
n Do source. Defenders know this to be an issue as well, and they
Joh
A v.
n US
i
were responding to the survey in the same way. Respondent
cited
then provided a brief description of how criminal cases
work in his district. Even in purely federal cases, which he
noted are quite rare for them, the prosecution is required
early on to provide statements and plea agreements as part
of discovery (within two weeks of the arraignment, by local
rule). So these documents (5K, Rule 35, etc.) are given to
the defense as part of discovery. The documents are sometimes the source of the information, but are RARELY obtained through PACER. Even if the name of the cooperator
or witness is not included, the defendant often can figure
out the name of the person based on the information (e.g.,
the sale of drugs on a specific day or at a specific place tells
them who the buyer was). Respondent then relayed more
information about the case he mentioned in his email contact. A multi-conviction drug dealer was under state investigation again. A search warrant was left as part of the investigation, so even before discovery, and from that information he was able to obtain the name of the cooperator,
who he later lured onto the railroad tracks and shot. This is
now a federal case. The only solution to preventing defendants from getting this kind of information is to seek a protective order, which the prosecutors almost never do be-

140

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 489 of 497

Categories

Open-Ended Comments

cause they are difficult to obtain. The district does try to
protect cooperation information by entering 5K and Rule
35 information orally during a sentencing hearing (after
notifying the court via email that such information will be
entered), so there is no PACER docket entry for this. However, if someone went to the trouble of paying to obtain the
transcript, they could learn it from there.
Procedures for protecting defendWe have a procedure in place in the [redacted] to protect
ants
cooperating defendants. We have created a master sealed
event in all criminal cases except immigration cases. This is
where the attorneys can have docketed any matters relating
to cooperation. It seems to work well.
General comments about the
We have been informed of assumptions by outside individsources to identify cooperator
uals that anything sealed or any missing ECF docket numbers covers a sealed document that relates to cooperation.
General comment about the freWe have experienced a distinct uptick in threatened and
quency of harm; general comments
actual violence to witnesses and cooperator/targets in the
about the sources to identify cooplast ten years. Drug traffickers are using their networks as
well as [following] docket entries for sealed filings, transfer
erator; policy comments
motions and waivers of pretrial motions. We believe a more
secure system for filing sensitive pleading should be devel017
oped. There is also a “paralegal” who er 8, 2 some of the
monitors
mb
more significant drug cases.Septe[paralegal] is seen speakThis
d on
ing with the defendants as well as the defense lawyers. Dechive
9 ar
fense1counsel do not welcome the input of the paralegal.
5025
. 5No
Details of a specific incident; gen- Doe, We have had a “certified complex” drug conspiracy case
ohn to where a codefendant was afraid for his life for cooperating
.J
eral comments about the sources
SA v
identify cooperator; U
with agents. This case has not been sentenced yet. There
ed in general comcit
was no plea agreement or 5K filed (yet), but there was a
ment about harm in prison/prison
debrief with this codefendant who implicated other codeculture
fendants. This codefendant was assaulted for no reason
while in custody pending sentence for the instant case and
believes the leader/organizer of this conspiracy ordered the
assault. / / In the past three years, we have reviewed about 3
PSRs where the material witnesses in alien smuggling cases
were threatened harm if they talked to agents concerning
the defendant. Names of material witnesses are disclosed in
PSR’s with their statement regarding the defendant and the
instant offense. It is unknown if the defendant actually carried out the threat of harm as most or all of these material
witnesses in these types of cases are deported before the
defendant is sentenced. No additional information about
these cases is known. /
We have had multiple reports that defendants in BOP cusGeneral comment about the fretody are routinely asked to “show papers,” meaning J&C,
quency of harm; general comment
PSR, transcripts of plea and sentencing hearings, etc., and
about harm in prison/prison culthat if they could not or did not they were targeted for vioture; general comments about the
lence. In the case of at least one facility, this was confirmed
sources to identify cooperator
by a Correctional Officer.

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

141

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 490 of 497

Categories

Open-Ended Comments

General comment about the frequency of harm

Nothing to report

We have other cases where the defendant/offender has indicated they were threatened by others do to the cooperation
but no evidence of the validity of the threat or how others
became aware of his cooperation.
We know of no harm or threats of harm in 2013 or 2014.

General comment about the frequency of harm; comments about
refusal out of fear

We know that sometimes witnesses and cooperators refuse
to cooperate due to threats or perceived threats, but that
information is not always communicated to us. Also, the
threats of harm or harm may not be the sole reason to refuse the cooperation.
General comment about the freWe prosecute a large number of cases in this district that
quency of harm; procedures for
depend on the cooperation of defendants and witnesses
protecting defendants
who have reason to fear retaliation or have been actually
threatened. We do not track this information; therefore the
numbers above are not reliable. There are merely a guess,
but it is a substantial number each year. We are [redacted]
and prosecute a large number of cartel and gang cases. This
is a factor in every case. And, in almost every case, the fear
of retaliation or the actual threats are made against cooperators or family members in [redacted], complicating matters substantially more than where the cooperators and/or
7
, 201
their family members are entirelyember 8
[redacted].
pt
We receive frequent d on Se for sentencing transcripts
requests
General comment about the freve
r hi
from incarceratedcdefendants who have no appeal or habequency of harm; general comments
59 a
-502 These requests appear to be from defendants
as o. 15
pending.
about the sources to identify coopN
erator; general comment abouthn Doe, who are being pressured/threatened to demonstrate to othJo
er inmates that they did not cooperate with the governharm in prison/prison culture
A v.
n US
i
ment. Although I have no information of actual threats, I
cited
have a strong impression that this is a major problem for
incarcerated inmates, whether or not they actually cooperated.
General comment about the freWe take extra precaution to try to prevent harm but it is
quency of harm; procedures for
sometimes inevitable.
protecting defendants
Takes issue with the survey; general You are asking the wrong person when you ask my office.
We represent the LEAD defendant who is usually the percomment about harm in prison/prison culture; general comment son being snitched on, not the person doing the snitching.
That said, we do regularly receive requests from defendants
about the frequency of harm; general comments about the sources to in the BOP for PSRs to prove they did not cooperate. We
also occasionally receive requests to doctor documents to
identify cooperator
show cooperators did not cooperate.

142

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 491 of 497

Categories

Open-Ended Comments

Procedures for protecting defendants; general comment about harm
in prison/prison culture; general
comments about the sources to
identify cooperator; policy comments; general comment about the
frequency of harm

We used to have mandatory plea agreement supplements
that were sealed and filed in every case in an attempt to
make it more difficult to tell which defendants were cooperating. Defense counsel reported that this was putting all
defendants in jeopardy (including the people who did not
cooperate) because the sealed docket entry suggested to
fellow inmates that the defendant had cooperated. Accordingly, we stopped the practice of mandatory plea agreement
supplements. Presently, motions for downward departure
and cooperation agreements are automatically sealed documents. The docket entries are not visible to the public, but
the docket will reflect a skipped number, which we are told
is a signal to those who might wish to harm a cooperating
defendant. Sealed cooperation-related documents are
sealed for the duration of a defendant’s term of incarceration. Counsel may move to seal things like sentencing
memos which contain references to cooperation. On an
adequate showing, those motions to seal are routinely
granted. Our court has spent significant amount of time
discussing this issue, and we have decided to await national
guidance on the best way to balance the important interests
2017
at stake.
er 8,
mbof their sentences unGeneral comment about the freWhen defendants request n Septe
reductions
o
quency of harm
der Rule 35, theycanded
hiv their lawyers generally contend that
9 ar
the defendants have been threatened, but I have no docu5025
. 15, No
Doe mented cases of such threats.
ohn
General comment about theJ
While defendants at times ask for entire plea agreements to
v. freUSA
quency of harm; procedures for
be sealed or not even docketed because of a perceived
ed in
cit
protecting defendants
threat, I have never had any defendant or defense counsel
or government attorney provide any details to support the
perception.
General comment about the freWhile I don’t have additional information about actual
quency of harm; details of a specific harm or actual threats of harm, I am frequently reminded
incident; general comments about
of the dangers for offenders of being associated with the
the sources to identify cooperator;
Government. In one recent large, multi-defendant heroin
general comment about harm in
distribution case in which some defendants had gang affilprison/prison culture
iations, virtually every defendant [redacted] requested a
copy of the transcript of his sentencing. This was not done
for appeal purposes - because in each case the appeal period
had run when the request was made. My court reporter told
me that, in several cases, she was advised by the person requesting (and paying for) the transcript that the transcript
was needed so that the defendant could show to other inmates that he was not a “snitch.”

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

143

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 492 of 497

Categories

Open-Ended Comments

General comment about the frequency of harm; Takes issue with
the survey

While not many AUSAs in the district advised that they
experienced defendants or witnesses experiencing harm or
threats in the last three years, the AUSA who serves as the
district’s Professional Responsibility Officer (PRO) and
Appellate Chief advised that he has heard of plenty of instances surrounding these issues in his capacity as PRO and
Appellate Chief. Therefore, we submit that even though
AUSAs may not be quantifying these situations in their
daily casework, the issues do arise and the PRO and/or appellate division may be another good source for information. / / Note, that we entered 0 to the questions above
because the approximate numbers, if any, are unknown.
General comment about the freWhile we have had a few [defendants] over the past three
quency of harm
years express fears for their safety after cooperating with the
government, these fears were based on the nature of the
cooperation and no direct or indirect threats were made.
General comment about the freWithin the District, there is a general perception that coopquency of harm; general comments
erators will be harmed, even if there is no specific credible
about the sources to identify coopthreat of harm known. Even use of the safety valve provierator; comments about refusal out
sion is generally rejected by defendants in narcotics cases
of fear
given their understanding that said provision could lead to
017
the label of cooperator and the perceived, risks that entails.
r8 2
mbe
Many defendants do not evenepte
consider cooperation or even
on S
the safety valve archresult.
as a ived
9
Policy comments; general comAdditional 25
50 comments provided over email: If the survey is
. 15No
ments about the sources to identify oe, like other FJC surveys, I expect there will be opportunity for
D
ohn
cooperator; proceduresA v.protect- open-ended comments. That will be important to me. I
for J
S
have very strong feelings about what the Judiciary should
ing defendantsed in U
cit
and should not be willing to do in this arena. We are obviously all concerned about threats, intimidation and actual
harm inflicted on a defendant who chooses to cooperate.
We should get real, hard data on how extensive the problem is. Right now, I hear lots of anecdotes, but have very
little real, hard information. This will be a good first step.
But even if the survey develops hard data of a genuine and
significant problem, I think the Judiciary must be very cautious about compromising the transparency and accuracy
of Court records to address the problem. I don’t have any
problem with Courts doing what we have always done:
namely, make case specific decision on whether and what to
file under seal. But the recent proposals I’ve heard go way
beyond that and would, if adopted, involve scrubbing the
docket entirely of all references to the filing of Rule 35 or
5K motions (not just sealing content in appropriate cases),
and in some instances even filing a public version of a plea
agreement that appears to be complete but really isn’t because there is a private, undisclosed rider that covers cooperation and substantial assistance.

144

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 493 of 497

Categories

Open-Ended Comments

In my view, adoption of proposals like these last two go way
beyond sealing records in appropriate cases, and actually
strike at the core of the transparency and accountability
that is so essential to the integrity and operation of the
Court. Court records should, in my view, fairly reflect what
actually happened in a case. If there was a Rule 35 or 5K
departure motion filed, the record needs to reflect that,
even if the content of the motions is sealed for good cause.
Otherwise, the Court is publishing a docket that distorts the
reality of what occurred in a case. Similarly, if there is a Plea
Agreement with a cooperation provision, and that is actually part of the plea deal, the record should not falsely suggest
that there is Plea Agreement without such a cooperation
provision. The proposal I’ve heard to file a public version of
a Plea Agreement that does not include the cooperation
provision, when everyone involved realizes the real deal
actually does include cooperation, would in my view put
the Judiciary in the position of creating a false and misleading record of what is actually occurring. And obviously I
don’t think the Judiciary should countenance that sort of
thing.
17
Making individualized decisions to seal 8, 20 or all of the
r some
mbe proper and wellpte
content of a document is eperfectly
on S
ved
established judicial ipractice in my view. It does result in
rch
59 a
some compromise of the normal, presumptive right of pub-502
15
No.
e, lic access to Court records. But the compromise is appron Do priate when a judicial officer determines there is good cause
Joh
A v.
n US
i
for the sealed filing. But the proposals that go beyond this,
cited
and that would distort the judicial record of what is actually
happening in a case are totally different in my view. At least
in my District, I’m hearing the US Attorney’s Office--often
with support from the Defender Service--push for the more
extreme record scrubbing that would, in my view distort
the reality of what is happening in a case. I understand and
applaud the desire to protect people who choose to cooperate. But I don’t think that protection can or should come at
the expense of the integrity of the Court record.
Additional comments provided over email: I have the folDetails of a specific incident; general comments about the sources to lowing information to report regarding threats or harm to
offenders due to their cooperation:
identify cooperator; procedures for
1) [redacted] - was prosecuted for threatening a material
protecting defendants; Procedures
for protecting witnesses; Takes issue witness [redacted]- see below.
2) [redacted] - was threatened by [redacted] regarding her
with the survey
testimony against [redacted]. [redacted] threatened with
physical harm to herself and her family. No actual
harm was done. [redacted] was on pretrial release at the
time of the threat. No information to indicate she requested
protective custody or that she received same. No information to indicate that court documents were used to identify the defendant as a cooperator.

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

145

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 494 of 497

Categories

Open-Ended Comments

3) [redacted] is being prosecuted for witness tampering. He
made a series of phone calls to people to attempt to dissuade them from testifying in the sentencing of [redacted].
No information to indicate there were actual threats made.
Defendant was in custody for TSR revocation at the time.
Witnesses were in the community and no information is
available about the witnesses requesting protection. No
threat of physical or financial harm was reported and none
actually occurred. Discovery material (statements) was disseminated amongst several people in this case.
4) [redacted] has received various threats of physical harm
to him and his family due to his cooperation against other
defendants. Some co-defendants distributed discovery material which included statements provided by [redacted].
[redacted] was on bond at the time of the treats and it has
continued to his time on probation. No harm has actually
occurred to date.
5) [redacted] is a [redacted] who cooperated with the Government against other [redacted]. He has been detained
and awaiting sentencing since [redacted]. He is trying to
enter the BOP Witness Security Program. We have no spe17
cific threat information, but there is er sincere concern for
a 8, 20
mb
his safety.
epte
on S
e you have any questions or require
vif d
Please let me knowi
rch
59 a
additional information.
-502
o. 15
took the request to mean that we had to compile one ree, IN
n Do sponse for the entire district so I did not complete the form
Joh
A v.
n US
i
itself.
cited
Takes issue with the survey; general Additional comments provided over email: I have been
comment about the frequency of
attempting to complete the survey “Cooperators – Federal
harm; details of a specific incident;
defenders and CJA Panel representatives” I am [redacted].
general comment about harm in
[redacted]. I truly appreciate your efforts in gathering inprison/prison culture; procedures
formation useful to the courts for this very real problem. I
for protecting defendants; general
have attempted to complete the survey as constructed
comments about the sources to
which has a number difficulties in getting useful inforidentify cooperator
mation for the courts. I understand researchers like check
box surveys because they can be more easily “scored” than
interviews or open ended questions. However the issues are
much more complex than what will be revealed by the
structure of the questions asked. Despite that I dutifully
went through the series of questions but got an error message “you cannot continue until you enter a valid number.”
This came with the following series of questions:
1. “In the past three years, how many defendants, because
of actual or threatened harm, requested case information
(CM/ECF docket, pre-sentence report, etc.) to prove they
were not a cooperator?”
2. “In the past three years, how many defendants, because
of actual or threatened harm, requested all or part of their
CM/ECF docket be sealed?”

146

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 495 of 497

Categories

Open-Ended Comments

3. “In the past three years, how many defendants withdrew
offers of cooperation because of actual or threatened
harm?”
The answer to #1 — There was a large space to answer (as
there was in the other two) so I thought I could type in an
explanation. My answer was: “This happens so routinely I
cannot give a number. Most defendants are shaken down
for case information upon arrival at BOP institution. This
is 100% of defendants who are assigned to a USP and some
that go to a medium.” This has been the case for nearly my
entire career. I do not have a number and would have to
pull case files to get a number. The form wants a number. I
put it at 75%. It would not take 75% This error warning (as
the other two error warnings) did not come until I had
completed all three of the questions.
The answer to #2 was “None that I can recall. I have suggested this and been told it will not help and will actually
raise a red flag and cause everyone to believe defendant was
cooperator if items are sealed.” The form wants a number
so I put “0” (i.e. zero.) Form wouldn’t take it.
The answer to #3 was “This averages about 30%.” This per17
centage is the defendants who are, no er 8, 20what, going to
matter
mb
a USP versus a medium or epte Form would not take
lower.
on S
answer or 30%. rchived
a
The last 50259
- questions about the number of defendants/or wit. 15harmed or threatened due to perceived or actual
No
, nesses
Doe
ohn
cooperation with the government higher or lower in 2014
v. J
USA
vs 2013. I would answer lower because I have been told by
ed in
cit
defendants that they have learned that it does not get them
anywhere and actually can make it worse if they complain.
As for additional information (an open ended question) I
can state the following:
In addition to criminal defense work I do civil rights cases
and FTCA cases. I frequently receive requests from inmates
to represent them in cases where they have been seriously
assaulted (usually with homemade knives) by fellow inmates. Due to the technical legal difficulties with §1983
cases and FTCA cases, and the expense and time necessary
to take on such a case, I and other lawyers routinely turn
down these requests for representation. I am currently in
[redacted] on one such case that I did take regarding an
individual who was assaulted so badly (because he was believed to be a snitch) that he had to have a kidney surgically
removed, had heart repair surgery and is missing part of a
lung. [redacted] because even without discovery the courts
have so far held that “discretionary function” exception
bars the suit. Some institutions are better run than others
and can protect prisoners better than others. The perpetrators of this vicious assault received very minor sentences
attached to their current sentences. There is no deterrence

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

147

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 496 of 497

Categories

Open-Ended Comments

of perpetrators of assaults nor any real threat of any ramifications for prison officials who fail to adequately protect
prisoners at risk.
As for district judges and protecting cooperators and others
the situation is this: Every plea agreement in [redacted] for
years has the following three required paragraphs that must
be agreed to by the defendant:
[redacted]
These paragraphs are not in every district. Ironically the
“debrief” required is often not bothered with or is cursory
and does not provide any new information. However the
paragraphs create obvious problems for the defendant
when incarcerated.
I hope this helps with your research. I hope that interviews
of CJA district representatives, and FPDs and AFPDs are
being contemplated in the future. In addition to criminal
defense counsel who have represented defendants and witnesses who have been assaulted, civil rights attorneys who
have represented similar victims are being contemplated.
General comment about the freAdditional comments provided over email: Some weeks ago
quency of harm; general comment
I returned your committee’s survey on threats7or harm to
1
about harm in prison/prison culwitnesses. At the time, I was personally 8, 20
er familiar with only
mbissue came up in conone or two cases. By coincidence e
ture; procedures for protecting deSept the
d on
veto unseal plea agreements that would
i
nection with a request
fendants; policy comments; general
arch
indicate 50259
comments about the sources to
- who had cooperated. The United States Attorney
15
No.
identify cooperators; details of a Doe, [redacted] presented three witnesses, with national and
n
Joh
local experience, who effectively described the range of
specific incident
A v.
n US
problems that occur when a cooperating witness is identied i
cit
fied. The witnesses gave numerous examples of retaliation
against cooperating witnesses, those merely suspected of
cooperating, and even those who spoke to prison officials to
give exculpatory information about a suspect. [Redacted]
Details of a specific incident; gen[Case transcript provided over email]
eral comment about harm in prison/prison culture

148

Survey of Harm to Cooperators: Final Report • Federal Judicial Center • 2016

Case: 15-50259, 09/12/2017, ID: 10577185, DktEntry: 64-2, Page 497 of 497

The Federal Judicial Center
Board
The Chief Justice of the United States, Chair
Judge Catherine C. Blake, U.S. District Court for the District of Maryland
Judge Curtis L. Collier, U.S. District Court for the Eastern District of Tennessee
Magistrate Judge Jonathan W. Feldman, U.S. District Court for the Western District of New York
Judge Kent A. Jordan, U.S. Court of Appeals for the Third Circuit
Judge Michael J. Melloy, U.S. Court of Appeals for the Eighth Circuit
Judge Kimberly J. Mueller, U.S. District Court for the Eastern District of California
Chief Judge C. Ray Mullins, U.S. Bankruptcy Court for the Northern District of Georgia
James C. Duff, Director of the Administrative Office of the U.S. Courts
Director
Judge Jeremy D. Fogel
Deputy Director
John S. Cooke
About the Federal Judicial Center

017
r 8, 2

be
ptem

S
The Federal Judicial Center is the research and education agency ofethe federal judicial system. It
d on
chive
was established by Congress in 1967 (28 U.S.C. §§ 620–629), on the recommendation of the
ar
0259
Judicial Conference of the United States. No. 15-5
,
By statute, the Chief JusticeJof n Doe
hthe United States chairs the Center’s Board, which also includes
v. o
A
the director of the Administrative Office of the U.S. Courts and seven judges elected by the
in US
cited
Judicial Conference.
The organization of the Center reflects its primary statutory mandates. The Education Division plans and produces education and training for judges and court staff, including in-person
programs, video programs, publications, curriculum packages for in-district training, and Webbased programs and resources. The Research Division examines and evaluates current and
alternative federal court practices and policies. This research assists Judicial Conference committees, who request most Center research, in developing policy recommendations. The Center’s
research also contributes substantially to its educational programs. The Federal Judicial History
Office helps courts and others study and preserve federal judicial history. The International
Judicial Relations Office provides information to judicial and legal officials from foreign countries
and informs federal judicial personnel of developments in international law and other court
systems that may affect their work. Two units of the Director’s Office—the Information Technology Office and the Editorial & Information Services Office—support Center missions through
technology, editorial and design assistance, and organization and dissemination of Center
resources.