David Boschee v. United States of America

Filing 62

ORDER denying 61 Motion to Seal Case. Signed by U.S. District Judge Lawrence L. Piersol on 3/21/14. (DJP)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

FILED

MAR 2 12014

~~

*************************************************************************
*
DAVID BOSCHEE,
CIV 09-4135
*
CR 07-40014
*
Movant,
*
*
-vs­
*
ORDER
*
UNITED STATES OF AMERICA,
*
*
Respondent.
*
*
******************************************************************************
David Boschee ("Boschee"), pleaded guilty to using the internet to entice a child to engage in
unlawful sexual activityinviolationof18 U.S.C. § 2422(b) and SDCL 22-22-1(5) and 22-22-7. He is
serving a sentence of 144 months imprisonment. On September 4, 2009, Boschee filed a Motion to
Vacate, Correct or Set Aside Sentence pursuant to 28 U. S. C. § 2255, claiming prosecutorial misconduct,
ineffective assistance 0 f counsel at various stages 0 fhis case, and judicial error. Boschee's claims were
set forth in his eighty-seven page habeas petition, which included attachments. The Court denied the
motion to vacate in a Memorandum Opinion and Order issued on March 27,2013.

Boschee did not move to seal any documents filed in his § 2255 proceedings until March 3, 2014.
(Doc. 61.) It appears he thought the case was sealed until recently when he found this Court's
Memorandum Opinion denying his motion while he was doing research in the prison law hbrary.l (Id.)
Boschee now requests that his § 2255 motion and other documents in the file be sealed because there is
"inherent danger" to him 'in having that information out there for any other prisoner to see...." (Jd.)

Petitioner mistakenly believes that his criminal case, and his recent Eighth Circuit appeal involving
his motion for return ofhis computer in his criminal case, are sealed. The criminal case and the Eighth
Circuit appeal are not sealed. Rather, certain documents filed in the criminal case are sealed or redacted
in order to protect the child victim and confidential information, and the Eighth Circuit entered an order to
assure protection of such information on appeal.
1

The Supreme Court has recognized a First Amendment and common law right 0 f public access to
court proceedings and records. See, e.g., Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986);
Nixon v. Warner Commc'ns, Inc., 435 U.S. 589 (1978). Public access to judicial proceedings and

records is essential to the proper functioning 0 fthe criminal justice system, Press-Enterprise, 478 U. S.
at 12, and serves other important purposes such as promoting respect for the justice systemand acting as
a watchdog over judicial proceedings. Id.; Nixon, 435 U.S. at 598.

The right ofpublic access, however, is not absolute, and the Supreme Court has recognized the
supervisory power ofevery court over its own records and files. Nixon, 435 U.S. at 598. The decision
to seal or unseal a court document is left to the sound discretion ofthe Court, "a discretion to be exercised
in light ofthe relevant facts and circumstances ofthe particular case." Id. at 599. "[O]nly the most
compelling reasons can justifYnon-disdo sure ofjudicial records." In re Neal, 461 F.3d 1048, 1053 (8th
Cir. 2006)(quotingin re Gitto Global Corp., 422 F.3d 1,6 (1st Cir. 2005». In this case, Boschee has
requested that his § 2255 case be sealed so that he can avoid harm, but he has provided so little
informationthat he cannot overcome the presumption in favor 0 fpublic access to court documents. Thus,
the motion to seal will be denied. Accordingly,

IT IS ORDERED that the motion to seal, doc. 61, is denied.
Dated this 21st day of March, 2014.
BY THE COURT:

a..\I""Lu.l~so.L.

wrence L. Piersol
United States District Judge

ATTEST:

JOSEPOOS~
BY:

t
DEPUTY