and Submitted March 15, 2018 San Francisco, California
from the United States District Court No. 4:14-cr-00168-YGR-2
for the Northern District of California Yvonne Gonzalez
Rogers, District Judge, Presiding
A. Balogh (argued) and Dejan M. Gantar, Coleman & Balogh
LLP, San Francisco, California, for Defendant-Appellant.
V. Leonida (argued) and Todd M. Borden, Assistant Federal
Public Defenders; Steven G. Kalar, Federal Public Defender;
Office of the Federal Public Defender, San Francisco,
California; for Intervenor.
Jean Chan (argued), Assistant United States Attorney; J.
Douglas Wilson, Chief, Appellate Division; United States
Attorney's Office, San Francisco, California; for
Before: J. Clifford Wallace and Marsha S. Berzon, Circuit
Judges, and Terrence Berg, [*] District Judge.
panel affirmed the district court's affirmance of a
magistrate judge's order denying Damion Sleugh's
motion to unseal codefendant Shawndale Boyd's
applications to issue subpoenas pursuant to Fed. R. Crim. P.
panel held that there is no presumption of public access
under the First Amendment or common law that attaches to Rule
17(c) subpoena applications and their supporting materials;
and that parties can only justify accessing sealed or in
camera Rule 17(c) subpoenas, subpoena applications, and
supporting documents by demonstrating a "special
panel held that Sleugh failed to demonstrate a "special
need" for Boyd's Rule 17(c) subpoena materials, and
that there is a continuing need to seal them.
defendants sometimes seek to obtain evidence by filing
applications asking the court to issue subpoenas for the
production of documents or witnesses pursuant to Federal Rule
of Criminal Procedure 17(c). These applications, supported by
an attorney's affidavit explaining the reasons the
evidence is necessary, are often filed ex parte and under
seal. The issue on appeal in this case-a question of first
impression for this Circuit-is whether one defendant in a
criminal case can get access to the Rule 17(c) subpoena
applications and supporting documents that were filed under
seal by another defendant's attorney in the same criminal
case, either because of the presumptive right of public
access to court records or upon a showing of special need. In
view of the circumstances presented here, the district court
properly denied the request for disclosure, and we affirm.
PARTIES, TRIAL, AND SLEUGH'S APPEAL
March 2014, Damion Sleugh and Shawndale Boyd were indicted
together on charges of (1) conspiring to distribute or to
possess with intent to distribute marijuana, and (2)
attempted possession with intent to distribute marijuana,
each in violation of 21 U.S.C. §§ 846, 841(a)(1)
& (b)(1)(D); (3) robbery affecting interstate commerce,
in violation of 18 U.S.C. § 1951(a); (4) using or
carrying a firearm during or in furtherance of a drug
trafficking crime, in violation of 18 U.S.C. § 924(c);
and (5) using a firearm during a drug trafficking crime and
causing a murder, in violation of 18 U.S.C. § 924(j).
Sleugh was also charged as being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1). The
charges arose from a five-pound marijuana drug deal that
Sleugh and Boyd arranged, which ended in the death of the man
who was delivering the marijuana, Vincent Muzac.
awaiting trial, Boyd filed ex parte applications with the
court seeking several Rule 17(c) subpoenas. Boyd requested
that these applications be filed under seal. The subpoenas
sought records relating to multiple cell phone numbers from
various service providers for the time period surrounding the
date of the alleged crimes, along with some surveillance
video from other sources. To support the Rule 17(c) subpoena
applications, and as required by local rule, Boyd's
defense attorney submitted affidavits describing the need for
the records. Those affidavits were also filed ex parte
and under seal.
5, 2015, Boyd pleaded guilty to all counts except the murder
charge. He agreed to cooperate with the government, and he
testified against Sleugh at trial. Sleugh also testified.
was presented at trial that Sleugh and Boyd arranged to
purchase five pounds of marijuana from Vincent
Muzac-Boyd's friend and co-worker-for $11, 000. On the
day of the deal, Boyd and Sleugh met at Sleugh's house.
They decided to drive separately, Boyd getting a ride from a
neighborhood acquaintance known by the nick-name
"Q," and Sleugh, carrying the purchase money,
driving a white Ford Escape that had been rented by
Boyd's mother. They met at a Walmart parking lot, where
there was also a Starbucks. Boyd met Muzac at the Starbucks.
Video evidence showed Boyd and Muzac leaving the Starbucks
together. Once in the parking lot, Boyd walked by himself up
to the white Ford Escape where Sleugh was waiting. Boyd spoke
to Sleugh for a few seconds. Boyd then walked away and
entered "Q's" vehicle. Boyd and Q drove off,
leaving the area. Muzac then walked to the Ford Escape where
Sleugh was waiting and got inside. Four minutes later, the
Ford Escape drove off without Muzac. Muzac's body was
later found lying in the parking lot next to only one pound
of marijuana, and without the $11, 000.
testified that, after he and Q left the Starbucks parking
lot, he tried repeatedly to contact Muzac on his cell phone,
with no success. Later that day, Boyd met Sleugh at
Sleugh's apartment, and asked Sleugh if everything was
okay. Sleugh told Boyd that he and Muzac argued about the
quality of the marijuana, that Muzac punched Sleugh in the
mouth, and that Sleugh then shot Muzac in the arm. Boyd
testified that Sleugh told him that after he shot Muzac, he
pushed him out of the car and left.
ultimately died from his wounds. Boyd testified that he did
not become aware that Muzac had died until he and Sleugh were
arrested on February 22, 2014 and charged in California state
court with Muzac's murder. Sleugh testified to a different
version of events. He claimed that Q-the man who drove off
with Boyd in another vehicle- shot Muzac.
17, 2015, the jury convicted Sleugh of all charges. Sleugh
was sentenced on November 4, 2015 to life in prison. Boyd
received a three-year prison sentence. Sleugh appealed his
conviction. See United States v. Damion Sleugh, No.
15-10547 (9th Cir.). At Sleugh's request, we stayed the
briefing schedule of Sleugh's direct appeal while ...