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United States v. Kilmartin

United States District Court, D. Maine

April 6, 2018

UNITED STATES OF AMERICA
v.
SIDNEY P. KILMARTIN

          ORDER ON MOTIONS TO SEAL

          JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE

         A public sentencing is not a private matter.

         I. BACKGROUND

         A. Procedural History

         On October 11, 2016, a jury found Sidney P. Kilmartin guilty of five violations of federal criminal law and acquitted him of one charge. Jury Verdict (ECF No. 153). The Court set the sentencing hearing for April 27, 2018. Notice of Rescheduled Hr'g (ECF No. 231). During the presentence process, the Defendant filed a number of sentencing memoranda and moved for a downward departure and variant sentence. Def.'s Sentencing Mem. Addressing Objections to Revised Presentence Report (ECF No. 227) (Def.'s Sentencing Mem.); Mot. for a Downward Departure (ECF No. 235); Mot. for a Variant Sentence (ECF No. 236) (Def.'s Variant Mem.); Am. Mot. for a Downward Departure (ECF No. 242) (Def.'s Departure Mem.); Def.'s Reply to Gov't's Resp. in Opp'n to Mot. for Downward Departure and Mot. for Variant Sentence (Filed Under Seal) (ECF No. 249). The Government responded. Gov't's Resp. to Def.'s Sentencing Mem. (ECF No. 228); Gov't's Resp. Under Seal to Def.'s Mots. for Downward Departure and Variant Sentence (ECF No. 246).

         B. The Motions to Seal

         The issue before the Court is whether to seal memoranda and attachments filed on the docket by the parties in anticipation of Mr. Kilmartin's sentencing hearing and whether to seal the motions to seal. By their nature, the memoranda and attachments are intended to influence Mr. Kilmartin's sentence, and the motions to seal would effectively block the public right of access to the information in these documents.

         On March 7, 2018, Mr. Kilmartin filed a motion to seal his motion for downward departure, representing that the Government did not oppose the motion. Unopposed Mot. to File Under Seal Def.'s Mots. for Downward Departure and for Variant Sentence (ECF No. 234). On the same day, the Court issued an order, granting in part and denying in part the motion to seal, citing United States v. Kravetz, 706 F.3d 47 (1st Cir. 2013), and requiring the parties to file memoranda within two weeks, explaining why the documents should be sealed. Order (ECF No. 239). On March 7, 2018, Mr. Kilmartin filed an amended motion to seal. Unopposed Am. Mot. to File Under Seal Def.'s Mots. for Downward Departure, Mot. for Variant Sentence, and Mot, to Exceed Page Limit (ECF No. 237).

         On March 8, 2018, the Court issued an amended order, clarifying the order. Am. Order (ECF No. 241). On March 20, 2018, the Government filed its memorandum, Gov't's Mem. on Sealing Sentencing Materials (ECF No. 243) (Gov't's Sealing Mem.), and on March 21, 2018, Mr. Kilmartin filed his memorandum. Def.'s Resp. to Court's Am. Order of March 8, 2018 (ECF 241) (Def.'s Sealing Mem.). On March 20, the Government moved to seal its response to Mr. Kilmartin's motions for departure and for variant sentence. Mot. to Seal Gov't's Resp. to Def.'s Mots. to Depart and Vary (ECF No. 245). On March 26, 2018, Mr. Kilmartin moved to seal the Government's sentencing exhibits. Mot. to Seal Gov't's Sentencing Exs. (ECF No. 247); On March 28, 2018, Mr. Kilmartin filed a motion to seal his reply to the Government's response to his motions for downward departure and variant sentence. Mot. to File Under Seal Def.'s Reply to Gov't's Resp. in Opp'n to Mots. for Downward Departure and Mot. for Variant Sentence (ECF No. 248).

         II. DISCUSSION

         In Kravetz, the First Circuit addressed the question of public access to court proceedings and, among other things, held that information in judicial records that bears directly on sentencing is subject to a presumption of public access. 706 F.3d at 56-57; United States v. DiMasi, 215 F.Supp.3d 179, 183 n.3 (D. Mass. 2016). The Kravetz Court explained that sentencing memoranda are judicial records:

Although we previously have not decided the precise question of whether advocacy memoranda, commonly submitted by the parties to the court in advance of sentencing, are “judicial records” entitled to a common law presumption of access, we have little doubt that they are. For starters, sentencing 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.

Id. at 56. Under Kravetz, once the sentencing memoranda are deemed judicial records, as they must be in this case, the presumption of public access applies to them, id. at 57, and “‘only the most compelling reasons can justify non-disclosure of judicial records' that come within the scope of the common-law right of access.” Id. at 59 (quoting In re Providence Journal, 293 F.3d 1, 10 (1st Cir. 2002)).

         The Kravetz Court addressed claims by a defendant that private medical information should be redacted, even though the defendant was urging the sentencing court to consider the medical information in assessing a proper sentence. Id. at 63-64. The First Circuit wrote that “[t]he privacy interest in medical information is ‘neither fundamental nor absolute, '” and that it “can be waived or otherwise overcome by a variety of means.” Id. at 63. The Kravetz Court distinguished between medical or psychological information that is “peripheral” and would only serve to ...


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