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Eugene Volokh

District Court Unseals Sentencing Memorandum in Case Involving Detroit's "Topless Prophet"

From Judge Linda Parker's opinion Thursday in U.S. v. Markovitz (E.D. Mich.); the defendant is the author of Topless Prophet: The True Story of America's Most Successful Gentleman's Club Entrepreneur, though the criminal case appears unrelated to the book:

Charles Blackwell initiated this miscellaneous action to unseal the sentencing memoranda in the criminal proceedings against Defendant Alan Markovitz in Case No. 23-cr-20058. In the criminal matter, Markovitz pled guilty pursuant to a Rule 11 plea agreement to one count of making a false statement in violation of 18 U.S.C. § 1001(a)(2). Prior to sentencing, only the United States filed a sentencing memorandum. The memorandum was sealed pursuant to an order granting the government's motion to seal—both of which were also sealed. Markovitz delivered a letter to the Court prior to sentencing, which was never filed on the docket….

Blackwell seeks to unseal the sentencing "memoranda," arguing that the public has a common law and First Amendment right to access. Blackwell further argues that the sealing of the records was done procedurally and substantively in violation of Sixth Circuit case law, specifically In re Knoxville News-Sentinel Co. (6th Cir. 1983). Blackwell points out that no motion to seal the records was ever filed on the public docket in the criminal matter, and he argues that the complete sealing of the documents suggests that efforts were not made to narrowly tailor the non-disclosure.

In response, the United States suggests that Blackwell has no right to "intervene" to seek the unsealing of the documents at issue. The United States then argues that its sentencing memorandum was properly sealed because it contained "sensitive information that could implicate the safety of an individual." The United States acknowledges that there is only one paragraph in its memorandum containing sensitive information; however, it maintains the entire memorandum was sealed "because it gave context to the sensitive information." Nevertheless, the United States offers to file a redacted sentencing memorandum which balances the need to protect the sensitive information and the public's right to access.

Markovitz has not responded to Blackwell's request….

It is well established that the public and press have a [presumptive] right to access court proceedings and records, which is protected by the common law and the First Amendment…. Courts have found a presumption of public access to sentencing memoranda…. "[S]entencing memoranda, which bear directly on criminal sentencing in that they seek to influence the judge's determination of the appropriate sentence, fall squarely into the category of materials that a court relies on in determining central issues in criminal litigation." Further, "[s]entencing memoranda, which contain the substance of the parties' arguments for or against an outcome, are clearly relevant to a studied determination of what constitutes a reasonable punishment."  Thus, "[p]ublic access to sentencing memoranda is consonant with the values animating the common law right." "Access … allows the citizenry to monitor the functioning of our courts, thereby insuring quality, honesty[,] and respect for our legal system." {In comparison, presentencing reports (PSRs) and objections to PSRs "occupy a unique position that falls outside the scope of both the First Amendment and the common law rights of access."}

The Sixth Circuit has held that the public must be given a reasonable opportunity to be heard before a court excludes access to proceedings or documents to which a right to access attaches. The court then indicated that "[i]n order to protect this right to be heard, the most reasonable approach would be to require that motions to seal be docketed … 'sufficiently in advance of any hearing on or disposition of the motion to seal to afford interested members of the public an opportunity to intervene and present their views to the court.'" {This language disposes of the government's assertion that a member of the public, like Blackwell, lacks standing to intervene to object to or seek the unsealing of court proceedings or records.} The Sixth Circuit advised district courts to "allow interested members of the public a reasonable opportunity to present their claims, without causing unnecessary or material delay in the underlying proceeding." …

The party seeking to limit public access to court proceedings or records bears the burden of overcoming the presumption of openness. "The burden is a heavy one: 'Only the most compelling reasons can justify non-disclosure of judicial records.'" …

The process followed when sealing the United States' sentencing memorandum and accepting Markovitz' pre-sentencing letter did not adhere to the openness required under Sixth Circuit precedent. In light of the parties' agreement to seal the government's memorandum, the Court neglected to consider the public's interest in transparency and open access to court records. The United States was not held to its burden of showing a compelling reason to seal this filing. No explanation was provided for why restricted access was being requested and granted for the memorandum—particularly the entire document.

The Court, therefore, believes these sentencing materials should be unsealed—and first filed, in the case of Markovitz' letter. Before doing so, however, the Court will provide the United States and Markovitz the opportunity to show that compelling reasons justify sealing materials in their respective submissions. To do so, they shall submit renewed motions to seal which comply with Sixth Circuit precedent and the Local Rules for the Eastern District of Michigan. The failure to file such motions within fourteen (14) days of this Opinion and Order will result in the memorandum and letter being placed on the public docket….

Blackwell, by the way, is the successful defendant in a restraining order case that I wrote about last year.

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