United States v. Damion Sleugh

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-10424
Plaintiff-Appellee,
D.C. No.
SHAWNDALE BOYD, 4:14-cr-00168-
Intervenor, YGR-2

v.
OPINION
DAMION SLEUGH,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of California
Yvonne Gonzalez Rogers, District Judge, Presiding

Argued and Submitted March 15, 2018
San Francisco, California

Filed July 23, 2018

Before: J. Clifford Wallace and Marsha S. Berzon, Circuit
Judges, and Terrence Berg, * District Judge.

Opinion by Judge Berg

*
The Honorable Terrence Berg, United States District Judge for the
Eastern District of Michigan, sitting by designation.
2 UNITED STATES V. SLEUGH

SUMMARY **

Criminal Law

The 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. 17(c).

The 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 need.”

The 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.

COUNSEL

Ethan A. Balogh (argued) and Dejan M. Gantar, Coleman &
Balogh LLP, San Francisco, California, for Defendant-
Appellant.

Ellen V. Leonida (argued) and Todd M. Borden, Assistant
Federal Public Defenders; Steven G. Kalar, Federal Public

**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 UNITED STATES V. SLEUGH 3

Defender; Office of the Federal Public Defender, San
Francisco, California; for Intervenor.

Merry Jean Chan (argued), Assistant United States Attorney;
J. Douglas Wilson, Chief, Appellate Division; United States
Attorney’s Office, San Francisco, California; for Plaintiff-
Appellee.

OPINION

BERG, District Judge:

Criminal 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.

I. THE PARTIES, TRIAL, AND SLEUGH’S APPEAL

In 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)
4 UNITED STATES V. SLEUGH

& (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.

While 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. 1 Those affidavits were also filed ex
parte and under seal.

On May 5, 2015, Boyd pleaded guilty to all counts
except the murder charge. He agreed to cooperate with the

1
Sleugh has moved to include the Rule 17(c) subpoenas themselves,
describing the kinds of records sought, as part of the public record of this
appeal. Boyd and the Government did not object to this unsealing
request. (Sleugh did not seek to disclose the applications and supporting
affidavits setting out the reasons why these cell phone records were being
sought by Boyd’s attorney.) We granted Sleugh’s motion and refer to
the contents of the Rule 17(c) subpoenas herein. However, the
applications for the subpoenas, including Boyd’s counsel’s affidavits,
remain under seal and, thus, at the center of the instant dispute.
 UNITED STATES V. SLEUGH 5

government, and he testified against Sleugh at trial. Sleugh
also testified.

Evidence 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.

Boyd 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.

Muzac ultimately died from his wounds. Boyd testified
that he did not become aware that Muzac had died until he
6 UNITED STATES V. SLEUGH

and Sleugh were arrested on February 22, 2014 and charged
in California state court with Muzac’s murder. 2 Sleugh
testified to a different version of events. He claimed that
Q—the man who drove off with Boyd in another vehicle—
shot Muzac.

On July 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 he sought permission from the district court to
unseal Boyd’s Rule 17(c) subpoena applications.

Sleugh argued to the district court that he needed access
to Boyd’s Rule 17(c) subpoena applications for his appeal
because of the “possibility” that Boyd testified
inconsistently with Boyd’s counsel’s assertions in those
applications. Sleugh did not specify any particular portion
of Boyd’s testimony as problematic, and did not articulate
how he thought counsel’s assertions in support of obtaining
the cell phone and other records were likely to contain any
inconsistent or otherwise impeaching statements. Sleugh
reasoned that Boyd’s shift from defending the case to
pleading guilty and testifying for the Government suggested
that Boyd either misrepresented facts in the Rule 17(c)
subpoena applications, or lied during his testimony. Put
differently, Sleugh asserts that Boyd’s testimony on behalf
of the Government must have been inconsistent with any
defense theory Boyd used to support the Rule 17(c)
subpoena applications. Standing on that assumption, Sleugh

2
When the instant federal charges were brought against Sleugh and
Boyd, the state prosecutor dismissed the murder charges.
 UNITED STATES V. SLEUGH 7

concluded that he could have used the statements of Boyd’s
counsel in the Rule 17(c) subpoena applications to cross-
examine Boyd at trial. Sleugh also contended that he had a
right to access the Rule 17(c) subpoena applications as
judicial records. The magistrate judge who originally
granted Boyd’s Rule 17(c) subpoena applications denied
Sleugh’s motion to unseal them. The district court affirmed.

When Sleugh appealed the district court’s decision
denying disclosure, Boyd intervened, arguing that his Rule
17(c) subpoena applications should remain under seal.
Sleugh’s direct appeal of his conviction remains stayed,
pending the instant appeal.

II. STANDARD OF REVIEW

A district court’s denial of a motion to unseal is reviewed
for abuse of discretion. Ctr. for Auto Safety v. Chrysler Grp.,
LLC, 809 F.3d 1092, 1096 (9th Cir 2016). As part of that
review, this court must first determine under de novo review
whether the district court applied the correct legal rule.
United States v. Hinkson, 585 F.3d 1247, 1261–62 (9th Cir.
2009) (en banc). If the district court applied the wrong rule,
the district court abused its discretion. Id. The application
of the correct legal standard may nonetheless constitute an
abuse of discretion if the application “was (1) illogical,
(2) implausible, or (3) without support in inferences that may
be drawn from the facts in the record.” Id. at 1262
(quotations, citation, and footnote omitted).
8 UNITED STATES V. SLEUGH

III. ANALYSIS

a. No Presumptive Right of Public Access Attaches to
Rule 17(c) Subpoena Applications

A criminal defendant has a constitutional right to
compulsory process in building a defense. Pennsylvania v.
Ritchie, 480 U.S. 39, 56 (1987) (holding that “criminal
defendants have the right to the government’s assistance in
compelling the attendance of favorable witnesses at trial and
the right to put before a jury evidence that might influence
the determination of guilt”).

While Rule 16 of the Federal Rules of Criminal
Procedure generally governs discovery procedures in
criminal cases, Rule 17(c) allows parties to a criminal trial
to use the district court’s subpoena power to request
materials or testimony from witnesses. Fed. R. Crim. P.
17(c)(1). The Supreme Court has made it clear that a party
seeking production of materials under a Rule 17(c) subpoena
must demonstrate to the court “(1) relevancy;
(2) admissibility; [and] (3) specificity.” United States v.
Nixon, 418 U.S. 683, 700 (1974). If the grounds articulated
in support of the subpoena request were made part of the
public record, such a showing could reveal counsel’s trial
strategies or defense theories to the opposing party, here, the
government. This concern about revealing defense
strategies to the government could also apply to revelations
of such confidential theories to co-defendants, who may
have adverse interests—the issue implicated in this appeal.
Recognizing this potential conundrum, some courts, like the
district court here, have local rules that permit defendants to
file their Rule 17(c) applications under seal for “good
cause.” N.D. Cal. Crim. Local Rule 17-2(a)(1).
 UNITED STATES V. SLEUGH 9

At the same time, filings under seal can interfere with
open, public access to judicial records and documents. See
Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978)
(“It is clear that the courts of this country recognize a general
right to inspect and copy public records and documents,
including judicial records and documents.” (footnotes
omitted)). Shrouding the mechanics of a criminal case in
secrecy places the public’s interest in a transparent judicial
system at risk. See Press-Enter. Co. v. Superior Court,
464 U.S. 501, 508 (1984) (“Press-Enterprise I”) (observing
that open criminal proceedings “enhance both the basic
fairness of the criminal trial and the appearance of fairness
so essential to public confidence in the system”); see also
Phoenix Newspapers, Inc. v. U.S. Dist. Court, 156 F.3d 940,
946 (9th Cir. 1998) (observing that “[o]ne of the most
enduring and exceptional aspects of Anglo-American justice
is an open public trial”).

Sleugh argues that the district court should have granted
him access to Boyd’s sealed Rule 17(c) subpoena requests
because he has a presumptive right to access them under
either the First Amendment or common law. However,
“there is no right of access which attaches to all judicial
proceedings, even all criminal proceedings.” Phoenix
Newspapers, Inc., 156 F.3d at 946.

As to the First Amendment, the test to determine
“whether a right of access attaches to a particular kind of
hearing” is a two-part test “known as the ‘experience and
logic’ test.” Phoenix Newspapers, Inc., 156 F.3d at 946.
The test also applies to documents generated as part of a
judicial proceeding, such as those here. Times Mirror Co. v.
United States, 873 F.2d 1210, 1213 n.4 (9th Cir. 1989). “The
‘experience’ prong of the test questions ‘whether the place
and process have historically been open to the press and
10 UNITED STATES V. SLEUGH

general public[.]’” Phoenix Newspapers, Inc., 156 F.3d at
946. (quoting Press-Enter. Co. v. Superior Court, 478 U.S.
1, 8 (1986) (“Press Enterprise II”). The “logic” element
“inquires ‘whether public access plays a significant positive
role in the functioning of the particular process in question.’”
Id. “If a proceeding fulfills both parts of the test, a qualified
First Amendment right of access arises, to be overcome
‘only by an overriding interest based on findings that closure
is essential to preserve higher values and is narrowly tailored
to serve that interest.’” Id.

As to the common law, there is “a strong presumption in
favor of access to court records.” Ctr. for Auto Safety,
809 F.3d at 1096. A party seeking to seal a judicial record
can overcome this presumption only by showing a
“compelling reason.” Id.

The issue here, then, is whether there is a presumptive
right of public access to Rule 17(c) subpoena requests under
either the First Amendment or common law. We have not
addressed this issue before. The district court and the
magistrate judge found guidance in the First Circuit’s
decision, United States v. Kravetz, 706 F.3d 47 (1st Cir.
2013), the only circuit court opinion squarely addressing this
issue. Applying the reasoning of Kravetz, they held that
Sleugh has no presumptive right to access Boyd’s sealed
Rule 17(c) subpoena requests.

In Kravetz, a journalist appealed from an order denying
his request to unseal documents in a criminal case. 706 F.3d
at 50. The documents included a sentencing memorandum
as well as Rule 17(c) subpoena materials. Id. at 51, 53. The
journalist argued that “the sealed documents were ‘judicial
documents’ to which he had a right of access under the First
Amendment and common law.” Id. at 52.
 UNITED STATES V. SLEUGH 11

Applying the “experience and logic” test, the First
Circuit rejected the journalist’s First Amendment argument.
Id. at 53. Under the “experience” prong, the court noted,
“there is no tradition of access to criminal discovery.” Id. at
54. “To the contrary, ‘[d]iscovery, whether civil or criminal,
is essentially a private process because the litigants and the
courts assume that the sole purpose of discovery is to assist
trial preparation.’” Id. (quoting United States v. Anderson,
799 F.2d 1438, 1441 (11th Cir. 1986)) (other citation
omitted).

Applying the logic prong did not support a presumptive
right of access either. The court reasoned that recognizing
such a right would dangerously require criminal defense
counsel “to prematurely expose trial strategy to public
scrutiny.” Kravetz, 706 F.3d at 54. More broadly, public
access would have a “deleterious effect . . . on the parties’
search for and exchange of information in the discovery
process.” Id. (citation omitted). Accordingly, the court
found “no First Amendment right of public access to the
subpoenas or related materials.” Id. at 54.

Nor did the common law right of access apply. Id. at 54.
The court reasoned that the common law right of access
ordinarily attaches to “judicial records,” which “are those
‘materials on which a court relies in determining the
litigants’ substantive rights.’” Id. (quoting In re Providence
Journal Co., Inc., 293 F.3d 1, 9–10 (1st Cir. 2002)). Rule
17(c) materials, in contrast, “relate merely to the judge’s trial
management role,” not the adjudication process. Id. at 54–
55 (citations omitted).

The Kravetz court held, then, that “no presumptive right
of public access, based either in the common law or the First
Amendment, attaches to the Rule 17(c) subpoenas or the
related documents filed in connection with the underlying
12 UNITED STATES V. SLEUGH

criminal prosecution[.]” Id. at 56. Instead, access is
permitted “only upon a showing of special need.” Id.

We agree with Kravetz’s application of the First
Amendment test. We also agree with Kravetz’s application
of the common law test, which is consistent with our position
on the somewhat related question of what showing must be
made to seal discovery documents filed to support motions
in civil cases. For example, in Center for Auto Safety, the
district court sealed documents attached to the plaintiffs’
motion for preliminary injunction and to the defendant’s
opposition brief. 809 F.3d at 1095. A third party intervened,
seeking to unseal the documents. Id. The district court held
that the motion for preliminary injunction was a non-
dispositive motion, and, therefore, the documents could be
sealed merely upon a showing of “good cause.” Id. at 1095–
96.

Observing that “a motion for preliminary injunction
frequently requires the court to address the merits of a case”
and “often includes the presentation of substantial
evidence,” Id. at 1099 (citing Stormans v. Selecky, 586 F.3d
1109, 1127 (9th Cir. 2009)), we reversed and held that such
documents should only be sealed for “compelling reasons,”
Id. We observed how “[t]he focus in all of our cases is on
whether the motion at issue is more than tangentially related
to the underlying cause of action.” Id. at 1099. We
explained that while motions for preliminary injunctions
frequently are “more than tangentially related to the merits
of a case,” so that documents supporting such motions
should not be sealed except upon a showing of compelling
reasons, “materials attached to a discovery motion unrelated
to the merits of a case” need satisfy only the less exacting
“good cause” standard.” Id. at 1097–99. In adopting the
“more than tangentially related to the merits” approach, we
 UNITED STATES V. SLEUGH 13

cited favorably Kravetz’s test for determining if materials
affect substantive rights, thereby triggering the common law
right of access. Id. at 1100.

We agree with Kravetz that Rule 17(c) subpoenas,
subpoena applications, and supporting affidavits, like civil
discovery motions and supporting materials, are ordinarily
only “tangentially related to the underlying cause of action.”
Ctr. for Auto Safety, 809 F.3d at 1099. To be sure, the actual
evidence gathered from the issuance of Rule 17(c)
subpoenas could go to the merits of a case. The materials or
witnesses sought could impact the verdict at trial, the
ultimate issue in any criminal case. Also, to make an
assessment of the relevance of the subpoenaed materials, the
court will need to take into account the merits of any
potential defense theories articulated in Rule 17(c) subpoena
applications. See Nixon, 418 U.S. at 700.

But the applications and supporting affidavits for Rule
17(c) subpoenas merely invoke the district court’s authority
to compel the production of evidence. They are not evidence
themselves. Such affidavits might sketch out possible
defense theories that may or may not find support in actual
evidence. As Kravetz observed, “‘[m]aterials submitted to a
court for its consideration of a discovery motion are actually
one step further removed in public concern from the trial
process than the discovery materials themselves.’” Kravetz,
706 F.3d at 54 (quoting Anderson v. Cryovac, Inc., 805 F.2d
1, 13 (1st Cir. 1986)).

Because our law does not dictate when a party may
unseal the applications and affidavits filed in support of Rule
17(c) subpoena requests, and Kravetz sets forth a reasonable
approach that is consistent with our precedent, we adopt that
approach here. See Padilla-Ramirez v. Bible, 882 F.3d 826,
836 (9th Cir. 2017) (“As a general rule, we decline to create
14 UNITED STATES V. SLEUGH

a circuit split unless there is a compelling reason to do so.”).
As such, we hold 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. Accordingly, parties can only justify
accessing sealed or in camera Rule 17(c) subpoenas,
subpoena applications, and supporting documents by
demonstrating a “special need.” Kravetz, 706 F.3d at 56.

The next issue, then, is whether Sleugh showed a
“special need” for Boyd’s Rule 17(c) subpoena materials.
We hold that he did not.

b. Sleugh failed to demonstrate a “special need” for
Boyd’s Rule 17(c) subpoena materials.

Sleugh contends that his appellate counsel requires
access to Boyd’s Rule 17(c) subpoena materials to explore
possible issues for his direct appeal. While appellate counsel
certainly has an obligation to scour the record for appealable
issues, see Jones v. Barnes, 463 U.S. 745, 753 (1983), this
duty does not automatically create a right of access to sealed
materials containing a co-defendant’s defense theories. 3

3
As the magistrate judge here noted, the only case law Sleugh relies
on does not support Sleugh’s argument. In Ellis v. United States,
356 U.S. 674 (1958), the Court addressed only when leave to appeal may
be denied to indigent defendants. The Court held that if defense counsel
for an indigent defendant “is convinced, after conscientious
investigation, that the appeal is frivolous, of course, he may ask to
withdraw on that account.” Id. at 675. Then, “[i]f the court is satisfied
that counsel has diligently investigated the possible grounds of appeal,
and agrees with counsel’s evaluation of the case, then leave to withdraw
may be allowed and leave to appeal may be denied.” Id. Thus, Ellis
simply reminds us of the noncontroversial expectation that counsel
diligently and conscientiously investigate grounds for appeal. Nothing
 UNITED STATES V. SLEUGH 15

Sleugh argues that he needs Boyd’s Rule 17(c)
applications because they could prove that Boyd lied during
trial. Again, Sleugh does not identify any portion of Boyd’s
testimony which he believes is false (other than his
statements regarding the government’s promises, discussed
below), and Sleugh does not explain how the attorney’s
affidavit detailing the relevance of the cell phone and other
records sought in Boyd’s Rule 17(c) subpoenas could be
used to show that Boyd’s trial testimony was false. Sleugh
simply speculates that the assertions of counsel in Boyd’s
Rule 17(c) subpoena applications must be different from
Boyd’s trial testimony. Underlying Sleugh’s conclusion is,
again, the assumption that Boyd’s testimony during trial was
inconsistent with any defense theory that Boyd’s counsel
proffered in the pre-trial Rule 17(c) subpoena applications.

Sleugh assumes too much. Boyd’s testimony against
Sleugh—that Sleugh admitted to shooting Muzac and that
Boyd was not present at the time of the shooting—were
compelling defense theories for Boyd. Sleugh offers no
reason for believing that Boyd’s counsel would have
advanced a theory inconsistent with Boyd’s trial testimony
in the Rule 17(c) subpoena applications. Nothing about the
face of Boyd’s Rule 17(c) subpoena applications suggests
that the affidavits in support of those applications would be
likely to undercut Boyd’s testimony. 4

in Ellis requires the production of a co-defendant’s trial strategies or
defense theories. Similarly, Hardy v. United States, 375 U.S. 277, 282
(1964), only held that appellate counsel for indigent defendants are
entitled to a free copy of the entire trial transcript. This entitlement does
not include a co-defendant’s sealed filings.
4
In response to Sleugh’s counsel’s request at oral argument, we
reviewed in camera the sealed affidavits that Boyd’s counsel submitted
16 UNITED STATES V. SLEUGH

Sleugh also argues that Boyd “lied” when he testified on
redirect that the government made no promises to him in
connection with his cooperation. Sleugh’s contention takes
Boyd’s testimony out of its surrounding context. During
cross-examination, Sleugh’s trial counsel asked Boyd if the
government “promised [Boyd] that they would bring a
motion for a downward departure . . . if the government feels
that you have provided substantial assistance to the
government through your cooperation.” Boyd answered that
such a motion was “only a possibility. It’s not guaranteed.
It’s subject to the government’s discretion” and that the
judge is “the only person that will be sentencing me on this
case[.]” Therefore, when Boyd later testified on redirect that
the government did not promise him anything, Boyd clearly
was referencing the fact that any government “promises”
were not guaranteed.

Regardless, Sleugh does not explain how any potentially
inconsistent testimony by Boyd creates a “special need” for
Boyd’s Rule 17(c) subpoena applications. Even assuming
the applications contain “impeachment material,” as Sleugh
alleges, they cannot affect this appeal because they were
never in front of the jury, and we do not engage in de novo
fact-finding on appeal. Nor could Sleugh use the statements
to bring a sufficiency of the evidence challenge to his
conviction, because for such a challenge, “we [only] look at

in support of the Rule 17(c) subpoena applications. Sleugh’s position,
that they contain factual assertions contradicting Boyd’s trial testimony,
is without merit. In situations where a reasonable and plausible basis is
articulated suggesting that factual assertions attributable to a witness in
a Rule 17(c) application contradict that witness’s in-court testimony, a
district court could also conduct such an in camera review to protect the
integrity of the process.
 UNITED STATES V. SLEUGH 17

the evidence actually presented at trial.” United States v.
Sayakhom, 186 F.3d 928, 942 n.7 (9th Cir. 1999).

Further, the Rule 17(c) subpoena applications pre-dated
the plea agreement and Boyd’s cooperation, and the
subpoenas themselves mainly sought cell phone records and
some surveillance video. Even if Boyd were caught in a lie
about whether his plea agreement involved certain promises
by the government, such a misstatement would not
necessarily create an entitlement for Sleugh to examine the
sealed affidavits proffered by Boyd’s attorney to support the
Rule 17(c) subpoenas for records.

We hold that Sleugh failed to present a “special need” to
access Boyd’s sealed Rule 17(c) subpoena applications. 5

c. There is a continued need to seal Boyd’s Rule 17(c)
subpoena materials.

Alternatively, Sleugh argues that there is no reason to
continue sealing Boyd’s Rule 17(c) subpoena materials. He
reasons that Boyd pleaded guilty, testified, and was
sentenced and released. Therefore, according to Sleugh,
revealing the Rule 17(c) subpoena applications poses no risk
to Boyd.

Sleugh has a point, to an extent. There is some support
for the position that these subpoena applications should not

5
Because we hold that Sleugh has failed to demonstrate a “special
need” for Boyd’s Rule 17(c) subpoena application materials, we need
not address whether Boyd’s counsel waived any attorney-work product
protection to those materials by filing them with the court under seal, or
whether attorneys’ representations as to defense theories in affidavits
supporting subpoena applications could be attributable to the client for
impeachment or other purposes.
18 UNITED STATES V. SLEUGH

be sealed forever. Regarding transcripts of sealed trial
proceedings, we require that such transcripts “must be
released when the danger of prejudice has passed.” Phoenix
Newspapers, Inc., 156 F.3d at 948 (internal quotation marks
omitted). If there is no longer any need to seal the Rule 17(c)
subpoena materials at issue here, then perhaps they should
be unsealed.

There are two problems with applying this rule here,
though. First, unlike the trial transcripts at issue in Phoenix
Newspapers, which we held were entitled to a presumption
of public access under the First Amendment “experience and
logic” test, Rule 17(c) subpoena applications do not have a
history of being available to the public; such applications do
not constitute evidence, and they do not determine the merits
of a criminal case. Accordingly, it makes sense that it is
harder to unseal Rule 17(c) subpoena applications than trial
transcripts.

Second, in this case there is a continuing need to seal
these Rule 17(c) subpoena applications. Boyd’s plea deal
and sentence resolved only his federal charges, but Boyd was
initially charged with murder in California state court. 6 That
charge was dismissed, but the state is not precluded from
refiling that charge against Boyd. See Berardi v. Superior
Court, 160 Cal. App. 4th 210, 218 (2008) (observing that
Cal. Penal Code § 1387 “generally provides a ‘two
dismissal’ rule” precluding prosecutors from refiling certain
charges only after the same charges have been dismissed
twice already “according to the provisions of that statute”).

6
We grant Boyd’s request for judicial notice of his state court
charges. Fed. R. Evid. 201(d); Rosales-Martinez v. Palmer, 753 F.3d
890, 894 (9th Cir. 2014) (“It is well established that we may take judicial
notice of judicial proceedings in other courts.”).
 UNITED STATES V. SLEUGH 19

Because there is no statute of limitations for murder in
California, the specter of that charge continues to loom over
Boyd. See Cal. Penal Code § 799(a). Also, there is a
possibility that the federal government could pursue the
murder charge against Boyd should he breach his plea
agreement.

Unsealing Boyd’s Rule 17(c) subpoena applications
could reveal Boyd’s defense theories to the state and federal
governments for any future trial. The prospect of
undermining the confidentiality of Boyd’s defense strategies
justified sealing these materials in the first place, which
Sleugh does not contest. It is no different now. 7

IV. CONCLUSION

For these reasons, we AFFIRM the district court’s
affirmance of the magistrate judge’s order denying Sleugh’s
motion to unseal Boyd’s Rule 17(c) subpoena applications.

7
This is not to say that all Rule 17(c) subpoena applications may or
should remain under seal forever. There may be instances when there is
no longer any need to protect a defendant’s theories of defense (e.g.,
upon the defendant’s death, or when the statute of limitations has run on
all charges). Boyd’s situation is unique because, as long as he lives, he
will always face the risk of another state murder charge. Accordingly,
we need not resolve whether all Rule 17(c) subpoena applications should
remain under seal in perpetuity.