Case: 23-20097 Document: 00516847178 Page: 1 Date Filed: 08/04/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
August 4, 2023
No. 23-20097 Lyle W. Cayce
____________ Clerk
United States of America,
Plaintiff—Appellee,
versus
Saman Ahsani; Cyrus Allen Ahsani,
Defendants—Appellees,
versus
The Financial Times Limited;
Global Investigations Review; The Guardian,
Intervenors—Appellants.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC Nos. 4:19-CR-147-1,
4:19-CR-147-2
______________________________
Before Higginbotham, Smith, and Engelhardt, Circuit Judges.
Jerry E. Smith, Circuit Judge:
For over a decade, brothers and energy consultant executives Saman
and Cyrus Ahsani led an international bribery scheme implicating companies
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No. 23-20097
and individuals across the globe. In 2019, they pleaded guilty of crimes re-
lated to their participation in the enterprise and their attempts to cover it up.
Predictably, media interest in the case was substantial. The press’s
attempts to report on it, however, were hampered by the fact that almost
every document filed with the district court was under seal. Eventually, sev-
eral press agencies intervened and successfully moved to unseal—with
redactions—almost all the documents in the case up to that point.
The practice of sealing many documents persisted, however, all the
way through Saman Ahsani’s sentencing in January 2023. Not only were
many of the documents filed under seal, but the district court also closed part
of the sentencing hearing to the press and public. At the same time, media
interest in the case remained high, and the intervening press organizations
moved to unseal numerous documents related to the sentencing. The district
court denied their motion.
On appeal, the intervening organizations maintain that they have both
a First Amendment and a common-law right to access at least some of the
sealed information. They also challenge the court’s procedures in closing
part of the sentencing hearing. Although we acknowledge numerous proce-
dural irregularities in the district court, we ultimately affirm its denial of the
intervenors’ motion to unseal.
I.
Saman and Cyrus Ahsani1 were executives of the Monegasque energy
consulting firm Unaoil. They led an international corruption scheme for over
a decade, bribing governmental officials in the Middle East, Africa, and Cen-
tral Asia to obtain improper business advantages and win contracts from
_____________________
1
We refer to each brother by his first name for clarity.
2
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foreign governments for Unaoil and numerous multinational oil and gas
companies. The scheme had substantial negative impact on the rule of law
and political stability in several countries.
In March 2019, Saman pleaded guilty of numerous crimes: (i) conspir-
acy to violate the Foreign Corrupt Practices Act; (ii) money laundering in
order to promote and conceal the scheme; and (iii) obstruction of justice
through falsification and destruction of records.2 His sentencing would not
occur for several years.
In June 2020, 3 The Financial Times, Global Investigations Review, and
The Guardian (collectively, “intervenors”) moved to intervene and unseal
documents. Until that point, almost all docketed records, including the com-
plaint and the plea agreement, had been sealed or redacted. Intervenors
contended that the judicial documents should be unsealed under both the
First Amendment and common-law rights of access. They also asked the
court to provide notice of and access to any future proceedings, including the
sentencing hearing.
The district court granted intervenors’ motion and ordered that
almost all the documents be unsealed in redacted form. The court also
stated, “Intervenors and the public shall receive notice of and access to
future proceedings in this case, including the defendants[’] sentencing.”
Some time later, the district court publicly scheduled Saman’s sen-
tencing for January 30, 2023. In the period leading up to the sentencing, the
United States and Saman filed numerous documents under seal. The nature
of some of the sealed documents was listed on the docket, but others
_____________________
2
See 15 U.S.C. §§ 78dd-1, 78dd-2, 78dd-3; 18 U.S.C. §§ 371, 1519, 1956.
3
The presiding judge at the time of the 2020 motion and decision was Judge Gil-
more, who retired, whereupon the case was reassigned to Judge Hanen in December 2021.
3
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appeared only as “Sealed Events,” leaving the public in the dark as to both
their contents and their provenance.
About a week before the sentencing, intervenors moved a second time
to unseal documents; this time, they sought Saman’s sentencing memoranda.
They later expanded their request to other documents related to Saman’s
sentencing.4 As in their 2020 motion, intervenors alleged the right to access
them under both the First Amendment and common law.
Before ruling on that motion, and without providing express advance
notice to the public, the district court conducted a closed proceeding in
chambers on January 30—the morning of Saman’s sentencing. Neverthe-
less, the public sentencing occurred as expected that same day. Intervenors
inferred both the existence of the closed proceeding and the fact that it
related to the merits of Saman’s sentence from statements made during the
public part of the sentencing hearing, such as, “Our argument would be based
upon what was presented earlier to Your Honor . . . .” 5 The closed proceed-
ing was never docketed, and no transcript was filed until March 23, 2023.
Even then, the entire transcript was sealed.
During the public portion of the sentencing hearing, both the United
States and Saman made numerous statements relevant to this appeal and that
_____________________
4
Intervenors supplemented their motion with a letter. They expanded their re-
quest to more documents and docket entries under the same legal theories as in their
motion. Specifically, they sought access to “any judicial documents—including any tran-
scripts of any proceedings—concerning [Saman’s] sentence” that were under seal. Inter-
venors also asked that the court docket any records or proceedings that were not already
“reflected on the public docket.” Intervenors were functionally unable to request the
additional documents because the documents were either filed after the motion or were
filed before the motion as “Sealed Events” and therefore of unknown character.
5
In their briefs on this appeal, the parties have dispelled any lingering doubts about
the nature of the closed proceeding on January 30, 2023, by expressly (and correctly)
describing it as part of Saman’s sentencing hearing.
4
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indicated Saman had cooperated with the United States in some way.6 And
Saman himself touted the value of cooperation and stated that he had coop-
erated with U.S. authorities.
At the conclusion of the hearing, the court imposed a prison term of a
year and a day plus one year of supervised release. There was also a monetary
judgment of $1.5 million.
Although Saman’s sentencing had occurred, the court had yet to rule
on intervenors’ motion to unseal. About a week later, the United States and
the Ahsanis (collectively, “the parties”) jointly opposed the motion. But
because the opposition brief was docketed as a “Sealed Event,” neither
intervenors nor the general public was aware that anyone opposed inter-
venors’ motion, let alone the grounds on which it was opposed.
Several weeks later, on February 23, 2023, the court acknowledged
the parties’ opposition and denied intervenors’ motion without prejudice.
The order was, admittedly, minimalist. It quoted the findings that the court
had articulated in 2020 when it granted intervenors’ first motion to unseal,
namely, that “public disclosure” of details regarding Saman’s “ongoing
cooperation” with the United States would “jeopardize the defendants’
safety, the safety of their families, and the integrity of [the United States’]
ongoing investigation”—interests that it identified as “compelling.”7
_____________________
6
For example, counsel for the United States said that “[f]rom Day 1 [Saman] was
all in, an open book; and without going into specifics, as described in our memorandum,
he’s been doing everything he possibly can for the last four years.” Saman’s counsel
alleged that Saman “kept a copy, unknown to anybody else . . . of the key documents and
the key recordings [that the Ahsanis had destroyed].”
7
In their appellate briefs, the parties suggest a third interest: the “privacy interest”
of the defendants and of “third parties.” The district court made no finding about such an
interest, so if the parties believe that interest is compelling, they should ensure that it is
adequately briefed and addressed in the district court moving forward. We are, of course,
5
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The court found “no good reason to set aside” the earlier order,
“especially with respect to the sentencing memoranda.” In relevant part,
the court concluded that the First Amendment rights of the press “cannot
trump the rights of [Saman] to be safe from harm and the Government to
have its investigations free from impairment.” The court also considered the
partial remedy of redaction but concluded that redacting the documents
“would essentially destroy any value” they had. Finally, the court noted that
intervenors could re-urge the motion “if and when circumstances change.”
Intervenors timely appealed from the denial.8
II.
We review constitutional and other legal questions (including the
scope of the First Amendment) de novo.9 We review factual findings for clear
error.10
In the context of common law, we review decisions to seal or unseal
documents for abuse of discretion.11 A court abuses its discretion when it
(i) fails to identify and apply the correct legal standards; or (ii) fails to provide
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able to consider all interests raised by the parties when determining whether it is
appropriate to seal documents filed with this court.
8
The parties’ practice of filing sealed documents continued in our court when they
filed both sealed and public-but-redacted versions of their briefs. Intervenors moved to
unseal the parties’ briefs (or publish them with narrow redactions). We carried the motion
with the case but address it in a separate order.
9
See In re Hearst Newspapers, L.L.C., 641 F.3d 168, 174 (5th Cir. 2011) (citing
United States v. Brown, 250 F.3d 907, 913 (5th Cir. 2001)), as revised (June 9, 2011).
10
Id. at 174–75 (citing Brown, 250 F.3d at 913).
11
Vantage Health Plan, Inc. v. Willis-Knighton Med. Ctr., 913 F.3d 443, 450 (5th Cir.
2019).
6
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sufficient reasons for its decision to enable appellate review. 12
III.
Intervenors raise two primary claims under the First Amendment and
common law relating to the decision to close part of Saman’s sentencing
hearing and seal related documents.
First, the court violated the First Amendment by failing to provide
notice and an opportunity to be heard before closing part of the hearing.
Second, when the court denied the motion to unseal, it applied the
wrong legal standards under the First Amendment right of access to criminal
proceedings and the common-law right of access to judicial records. Inter-
venors posit that the order did not reflect the required analytical process.
They also contend that the court should have unsealed everything because
the fact of Saman’s cooperation was public. Relevant to that second claim is
intervenors’ ancillary argument that the court deprived them of a meaningful
opportunity to be heard regarding their motion to unseal when it allowed the
parties to file an entirely sealed opposition brief without any notice before it
denied the motion.
A.
Intervenors take issue with how the district court handled the closed
portion of Saman’s sentencing and the subsequent sealing of the transcript.
We share intervenors’ concerns about the failure to provide meaningful pro-
cedural safeguards before (or even after) closing the proceeding, but the pro-
cedural irregularities did not rise to reversible error.
_____________________
12
Id. at 450–51 (citations omitted).
7
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1.
The press and public enjoy a First Amendment right of access to many
criminal proceedings. Press-Enter. Co. v. Superior Ct. (Press-Enter. II),
478 U.S. 1, 8 (1986). To determine whether there is a First Amendment right
to access a given proceeding, courts consider two factors: experience and
logic. Id. at 8–9. The experience factor requires courts to determine “wheth-
er the place and process have historically been open to the press and general
public.” Id. at 8. The logic factor involves assessing “whether public access
plays a significant positive role in the functioning of the particular process in
question.” Id. (citing Globe Newspaper Co. v. Superior Ct., 457 U.S. 596, 606
(1982)).
We have applied the experience-and-logic test to sentencing hearings
and concluded that the First Amendment right of access attaches to them.
Hearst, 641 F.3d at 175. The experience factor weighs in favor of access
because sentencing proceedings were traditionally open to the public. Id. at
177. And the logic factor likewise justifies access because of the positive role
that public access to such proceedings plays: It restrains judicial power by
ensuring that the defendant is being justly sentenced; it promotes accurate
fact-finding; it facilitates the free discussion of governmental affairs; and it
provides catharsis to the public (especially to those whom the defendant’s
conduct has harmed). See id. at 179–81.
Given those rationales for public access, the right of access to sentenc-
ing proceedings is “especially salient” where—as here—there was no trial
but only a guilty plea. Id. at 177.
If a district court is considering closing a proceeding, it must generally
provide all interested parties—including the public and the press—notice
8
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and an opportunity to be heard. Id. at 181–82.13 The district court has the
discretion to determine what form that takes, e.g., docketing the motion to
close the proceeding or merely noting on the docket that there is a motion to
close a proceeding. Id. at 183. Similarly, written briefs may be a sufficient
opportunity to be heard, depending on the circumstances.
Moreover, a court usually must make “specific, substantive findings
. . . that closure is necessary to protect higher values and is narrowly tailored
to serve such goals.” Id. at 181. Such an explanation is a procedural
safeguard of the First Amendment rights of the press and the public. Id. at
182–83. If the district court cannot adequately explain its reasoning without
disclosing sealed information or information it seeks to protect by closing the
proceeding, it may file its reasoning under seal. See United States v. Sealed
Search Warrants, 868 F.3d 385, 397 (5th Cir. 2017). When the court does
close a proceeding, it should protect the First Amendment right of access by
making a transcript of the proceeding available within a reasonable time while
safeguarding the interests that justified closing the proceeding in the first
place. Hearst, 641 F.3d at 181.
Unlike our typical prior cases, this one involves only the partial closing
of a procedure: Although part of Saman’s sentencing was closed, part of it,
including the actual imposition of the sentence, was public. On that basis,
the United States analogizes the closed, in camera portion of Saman’s sen-
tencing to a bench conference or sidebar “from which the public and press
may be denied contemporaneous access to protect substantial countervailing
interests.”
_____________________
13
We have not foreclosed the possibility that some circumstances may justify nei-
ther advance notice nor an opportunity to be heard. In that hypothetic situation, the court
would still need to justify its decision “under the balancing test of Mathews v. Eldridge,
424 U.S. 319, 335 (1976).” Hearst, 641 F.3d at 183 n.15.
9
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Although courts have substantial discretion in managing their cases
and may hold in camera conferences, sidebars, and the like,14 the United
States pushes too far. Even assuming that a proceeding (such as the sentencing
hearing) can be sliced into substantive components (such as discussions about
cooperation), some of which are presumptively public and some of which are
not, the district court failed to follow any advance or contemporaneous pro-
cess at all. The docket reflects no motion to close, either public or sealed.
The court gave no notice of the closing, whether in advance or contempor-
aneously. It provided no opportunity to be heard. It filed no explanation or
justification, even under seal.
But even if the district court did not need to provide any advance or
contemporaneous safeguard,15 it should have implemented at least some
meaningful subsequent one. The docket does not—even now—contain an
entry for any in camera conference or closed proceeding on January 30, 2023.
Had the parties not adverted to the in camera meeting during the public sen-
tencing hearing, the public may not have become aware of its existence until
almost two months later, when the (sealed) transcript was filed.16
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14
See Globe Newspaper, 457 U.S. at 609 n.25 (“Such discretion is consistent with
the traditional authority of trial judges to conduct in camera conferences.”); Richmond
Newspapers, Inc. v. Virginia, 448 U.S. 555, 598 n.23 (1980) (Brennan, J., concurring in the
judgment) (“Thus, when engaging in interchanges at the bench, the trial judge is not re-
quired to allow public or press intrusion upon the huddle. Nor does this opinion intimate
that judges are restricted in their ability to conduct conferences in chambers, inasmuch as
such conferences are distinct from trial proceedings.”); United States v. Edwards, 823 F.2d
111, 116 (5th Cir. 1987) (“Our own court has explicitly acknowledged that bench confer-
ences are outside public hearing and the protection of their privacy is generally within the
court’s discretion.” (citing United States v. Gurney, 558 F.2d 1202, 1210 (5th Cir. 1977))).
15
See United States v. Valenti, 987 F.2d 708, 713 (11th Cir. 1993) (“[W]e do not . . .
require a trial court to articulate findings that a closed bench conference is necessary and
narrowly tailored to preserve higher values before a closed bench conference occurs.”).
16
For similar reasons, we need not reach the United States’ argument that this case
10
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The opportunity to be heard after the closed proceedings was likewise
lacking: Although intervenors requested a transcript of the closed proceed-
ings in a response letter filed in February, little did they know that the parties
had already opposed their January motion to unseal. After all, the opposition
brief was filed under seal and docketed as a “Sealed Event.”
Even where courts have recognized the broad discretion of district
courts to hold closed proceedings, they have required some process at some
point.17 Here, there was none at all. First Amendment protections may not
be so completely flouted.
2.
With the procedural irregularity identified, we turn to remedies. They
are limited somewhat by the fact that Saman’s sentencing has already oc-
curred. In similar cases, we typically reverse the denials of motions to open
proceedings, orders to close proceedings, and the like. See, e.g., Hearst,
641 F.3d at 186–87.
The problem is that we have nothing on the docket to reverse. There
is no motion to close proceedings, no order granting any such motion, and no
order—even under seal—to conduct any closed proceedings. The most we
can do regarding the decision to close part of Saman’s sentencing is to note
the procedural deficiencies and stress to this district court and all our trial
_____________________
is the as-yet hypothetical one contemplated by Hearst that required no advance notice or
opportunity to be heard at all. 641 F.3d at 183–84. Even assuming that this case fell within
that exception, the district court still had some obligation to provide some form of process
before or after the closed hearing, whether by filing a sealed explanation and justification
(even as a “Sealed Event”), docketing its decision to close a proceeding occurring at some
indefinite point in the future, or something else tailored to the circumstances.
17
See, e.g., Valenti, 987 F.2d at 713–15 (allowing a district court to conduct in camera
conferences without filing its justification for closing the proceedings but prohibiting it
from maintaining two dockets—one public, one sealed—in parallel).
11
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courts the importance of providing applicable procedural safeguards.
Intervenors’ request that we unseal the transcript (or instruct the dis-
trict court to do so) presents us with no direct avenue for relief, either. To
the extent that intervenors invoke their common-law right to access the tran-
script as a judicial record, the argument folds into their general request that
we reverse the denial of their motion to unseal, which covered all documents
(including the transcript) related to Saman’s sentencing. We address that
claim below.
Insofar as intervenors base their request to unseal the transcript on
their First Amendment right of access, it is true that the release of a transcript
“within a reasonable time” can vindicate the constitutional values at risk
where a proceeding is closed. Press-Enter. Co. v. Superior Ct. (Press-Enter. I),
464 U.S. 501, 512 (1984). In assessing the demands of the First Amendment,
we determine what counts as a “reasonable time” case-by-case. See United
States v. Edwards, 823 F.2d 111, 118–19 (5th Cir. 1987). And where a district
court chooses not to release the transcript for the same reasons that it chose
to close the underlying proceeding in the first place, the two analyses func-
tionally collapse: The “reasonable time” becomes the time when keeping the
transcript sealed is no longer a narrowly tailored way to protect specific com-
pelling interests.
After our independent review of the sealed transcript, we conclude
that its total sealing is still justified under that framework.18 Although
intervenors ardently emphasize that Saman’s cooperation is public, it does
not follow that the required documents must be unsealed, even with redac-
tions. Compelling interests may still justify keeping the information under
_____________________
18
We do note, however, that even the entirely sealed transcript was not docketed
until March 23, 2023—almost two months after the hearing.
12
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wraps for the time being. Here, for example, there is a need to protect the
safety of defendants and their families19 and to maintain the integrity of gov-
ernmental investigations.20 Those interests do not necessarily subside as
soon as the public is aware that a defendant is cooperating in some way with
the United States.21 And they are still salient in this case. Of course, circum-
stances can—and likely will, at some point—change.
We note finally that proper adherence to the correct procedures would
not have changed the outcome. Although courts must assiduously abide by
the safeguards meant to protect the rights of the public and press, on the facts
here, there is no reasonable doubt about the propriety of the decision to close
the proceeding and maintain the transcript under seal. Inasmuch as the
denial of intervenors’ motion reached their First Amendment claim to the
transcript stemming from their right of access to the hearing itself, we affirm.
B.
Intervenors also contend that the district court applied the wrong legal
standards in denying their motion to unseal documents connected to
Saman’s sentencing, including the transcript of the closed portion of the
sentencing hearing. They allege that the denial violated their First
Amendment and common-law access rights.
Intervenors rest their contention on three grounds. First, the district
court improperly applied a “presumption of secrecy” to the records instead
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19
See Hearst, 641 F.3d at 184–85; accord United States v. Doe, 870 F.3d 991, 998–99
(9th Cir. 2017); United States v. Doe, 962 F.3d 139, 147–48 (4th Cir. 2020) (collecting
cases).
20
See Sealed Search Warrants, 868 F.3d at 395 (discussing the interest in protecting
the integrity of investigations in the context of pre-indictment warrant materials); Hearst,
641 F.3d at 185; accord Doe, 870 F.3d at 1000–01; Valenti, 987 F.2d 708 at 714.
21
An analogous case may involve different but still compelling interests.
13
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of presuming public access. Second, it did not consider the current circum-
stances of Saman’s trial and premised its decision on the state of affairs at the
time of the court’s denial of intervenors’ 2020 motion to unseal. Third, it did
not properly consider less-restrictive alternatives to sealing the documents.
Intervenors also aver that the district court committed a procedural error,
depriving them of a meaningful opportunity to be heard on their motion by
permitting the parties to file their opposition under seal and as a “Sealed
Event” of unknown character.
Before we examine intervenors’ claims in detail, we must describe the
relevant standards and how—given the litigants’ arguments in district
court—they apply here. The press and the public have a presumptive general
common-law right to “inspect and copy judicial records.” 22 Those records
include transcripts of court proceedings filed in the docket. 23
On the other hand, although the First Amendment provides access to
many criminal proceedings, this court has not generally extended that right
to judicial records related to those proceedings. See Hearst, 641 F.3d at 176
(noting that numerous other circuits have so extended the right). But given
that the litigants did not dispute in district court that the records intervenors
seek fall within the First Amendment’s ambit, for the purposes of this appeal
we assume arguendo that the First Amendment applies to all the documents
sought in connection with Saman’s sentencing.24
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22
SEC v. Van Waeyenberghe, 990 F.2d 845, 848 (5th Cir. 1993) (citing Nixon v.
Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978)).
23
Vantage Health Plan, 913 F.3d at 451 (“Once a document is filed on the public
record it becomes a ‘judicial record.’” (citing Van Waeyenberghe, 990 F.2d at 849)); Bradley
ex rel. AJW v. Ackal, 954 F.3d 216, 227 & n.8 (5th Cir. 2020) (noting in the context of a
settlement that “sealed minutes are also a judicial record”).
24
Similarly, the litigants did not brief or otherwise make specific arguments about
whether the common-law right of access attaches to each type of document sought. We
14
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In addition to differing in scope, the First Amendment and common-
law rights of access involve different strengths of presumption. The First
Amendment presumption may 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.” Press-Enter. II, 478 U.S. at 9
(quoting Press-Enter. I, 464 U.S. at 510). The analysis is “case-by-case.”
Hearst, 641 F.3d at 181 (quoting Globe Newspaper, 457 U.S. at 609).
In contrast, we have not specified the weight of the common-law pre-
sumption, nor have we parsed it as creating a particular burden of proof. See
Bradley, 954 F.3d at 225. But we have noted that the inquiry is “case-by-
case”—like the First Amendment inquiry—and that courts must balance the
public’s right of access against other competing interests. See Sealed Search
Warrants, 868 F.3d at 395. We have also instructed courts to exercise their
discretion to seal “charily.” Fed. Sav. & Loan Ins. Corp. v. Blain, 808 F.2d
395, 399 (5th Cir. 1987).
Our review of the district court’s decision to seal also likely differs
under the two standards. The common-law standard of review of sealing
decisions is for abuse of discretion. Vantage Health Plan, 913 F.3d at 450–51.
Though some circuits appear to apply the abuse-of-discretion standard to the
ultimate decision to seal or unseal in the First Amendment context as well,25
others employ an independent and more searching review, even as to factual
findings.26 We assume arguendo that the latter, less deferential standard
_____________________
therefore assume arguendo that the common-law right of access attaches to each of the
records intervenors seek.
25
See Flynt v. Lombardi, 885 F.3d 508, 511 (8th Cir. 2018); United States v. Car-
penter, 923 F.3d 1172, 1178 (9th Cir. 2019).
26
See United States v. Erie Cnty., 763 F.3d 235, 238 (2d Cir. 2014); N. Jersey Media
Grp. Inc v. United States, 836 F.3d 421, 428 n.10 (3d Cir. 2016).
15
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applies (within our broader assumption, also arguendo, that the First Amend-
ment attaches to all the relevant documents).
In sum, and comparing the common-law right with the one guaranteed
by the First Amendment, the latter is stronger with respect to a given record
than is the right at common law. See Doe, 962 F.3d at 145 (“The public’s
right to access documents under the First Amendment is narrower in scope
but stronger in force.”). Our review of the district court’s decisions in a First
Amendment context is also less deferential than in a common-law context.
The upshot is that if we uphold the denial of intervenors’ motion to unseal
under the more stringent First Amendment standard, we uphold it a fortiori
under the common-law standard.
At common law,27 courts must make detailed, clear, and specific find-
ings when sealing a record to which there is a presumptive right of access.
See Sealed Search Warrants, 868 F.3d at 397. “While the district court need
not conduct an exhaustive assessment, it must generally articulate its reasons
to support sealing the [documents] with a level of detail that will allow for
this Court’s review.” Id.; see also United States v. Holy Land Found. for Relief
& Dev., 624 F.3d 685, 690 (5th Cir. 2010). The degree of specificity required
is case-specific. Sealed Search Warrants, 868 F.3d at 397.28
_____________________
27
And, we assume, under the First Amendment as well. Given that our circuit has
not extended the First Amendment right of access to documents connected to criminal
proceedings generally, it has understandably not set down a particular process courts must
follow when deciding whether to seal information. Other circuits have noted that although
the First Amendment and common-law rights of access are not coterminous (e.g., with
respect to their standard of review), overlap in their application is “understandable” given
that the First Amendment access jurisprudence “has been derived in large measure” from
the common-law access jurisprudence. In re Providence J. Co., 293 F.3d 1, 10 (1st Cir.
2002). We accordingly find the exacting nature of the common-law line-by-line approach
suited to First Amendment analysis.
28
In rare situations, the reasons for sealing may be so obvious that a court need not
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No. 23-20097
The court’s analysis must be “document-by-document” and “line-
by-line.” June Med. Servs., L.L.C. v. Phillips, 22 F.4th 512, 521 (5th Cir.
2022) (quoting Binh Hoa Le v. Exeter Fin. Corp., 990 F.3d 410, 419 (5th Cir.
2021)). Moreover, the court must carefully balance the right of access against
countervailing interests.29 Bradley, 954 F.3d at 227–28. If identifying those
interests would divulge the very information that should remain sealed,
district courts may file their statements of reasons under seal. Sealed Search
Warrants, 868 F.3d at 397 n.5 (citing Balt. Sun Co. v. Goetz, 886 F.2d 60, 65
(4th Cir. 1989)).
Turning to intervenors’ first two points, although the district court’s
denial of intervenors’ motion is brief, it does not erroneously presume
secrecy or fail to consider the circumstances at the time. Intervenors empha-
size the court’s statement that it found “no good reason to set aside Judge
Gilmore’s order.” They contort that statement into an admission by the
court that (i) it did not presume public access, and (ii) it considered the status
of the case at the time of Judge Gilmore’s order rather than at the time the
motion was denied.
We find that reading strained and that the much more plausible read-
ing is also the more charitable one. The order identified the interests it found
compelling—the safety of the defendants and their families30 and the integ-
_____________________
provide specific findings. But such instances have involved the sealing of jury information
in highly publicized cases, especially where there have been threats against the jurors by
the press or the defendants. See United States v. Brown, 250 F.3d 907, 919–20 (5th Cir.
2001); United States v. Harrelson, 713 F.2d 1114, 1117 (5th Cir. 1983). This case contains no
such indicia of obviousness.
29
As noted supra, the presumption against sealing is at least as strong (and likely
stronger) in the First Amendment context as in the common-law context.
30
Admittedly, at different points, the order and the quoted section of Judge Gil-
more’s order variously refer to Saman’s safety, the safety of his family, and the safety of
the other defendants and their families. Because the district court specifically found that
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No. 23-20097
rity of ongoing investigations—and also found that they outweighed the
press’s and public’s First Amendment right of access.
As to the continued salience of those compelling interests, we read the
order to adopt Judge Gilmore’s reasoning precisely because it was still appli-
cable. Judge Gilmore had found a “compelling governmental interest” in
keeping some information sealed based on the circumstances in 2020. We
do not interpret the order as failing to consider whether the status quo has
changed. Instead, Judge Hanen found that the reasoning in Judge Gilmore’s
order was still relevant and apposite given the circumstances in 2023.
Moreover, the order recognized some change in the status quo given that it
acknowledged Saman’s cooperation with the United States and quoted parts
of Judge Gilmore’s order, which had been under seal previously.
Intervenors’ third point is that the district court failed properly to con-
sider alternatives to complete sealing. The court rejected “the partial rem-
edy of redaction,” finding “that appropriate redactions in this instance
would essentially destroy any value the documents have and therefore would
undermine the very purpose behind [intervenors’] request.” Intervenors
assert that that explanation was cursory and inadequate, revealing that the
court had failed to conduct a line-by-line analysis. The logically necessary
assumption underpinning that argument is that the compelling interests
“could be accommodated by the less-restrictive alternative of applying tar-
geted redactions,” largely because of the now-public fact of Saman’s
cooperation—a claim sounding more in the application of law to fact than in
pure law.
At any rate, we do not read the order as applying an erroneous legal
_____________________
all the requested records implicated the safety of both the defendants and their families, we
view that interest as the most precisely formulated one.
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standard. The court expressly considered simple redaction, rejected that
option, and explained why, noting that it had reviewed “each document” at
issue. Those are the requisite steps under our caselaw. Nor do we find that
the court applied that standard incorrectly. Although redaction is often prac-
ticable and appropriate as the least restrictive means of safeguarding sensitive
information, it is not always so.31 Our review of the sealed information
corroborates the district court’s reasoning, and the decision to seal the doc-
uments completely rather than redact them partially does not fall outside the
bounds of the permissible application of the law to the facts, even under a less
deferential standard. We come to this conclusion while fully recognizing, as
intervenors have frequently stated, that the fact of Saman’s cooperation is
now public knowledge. But, as we have explained, compelling interests per-
sist in this case despite that public knowledge.
In sum, the order denying intervenors’ motion to unseal included
sparse detail when read in isolation, but it did contain specific, substantive
findings sufficient to permit our review, given the facts. See Hearst, 641 F.3d
at 181. Although its articulation of the governing legal principles could have
been more detailed, the court applied the proper legal standards. And after
an independent review of the record, we conclude that it did not reversibly
err in applying those standards to the facts. The interests it identified are
compelling and implicated by the sealed information. Those interests may
abate in the future, but for now, they remain salient enough to justify the seal-
_____________________
31
See, e.g., United States v. Index Newspapers LLC, 766 F.3d 1072, 1095 (9th Cir.
2014) (“[I]f the record is sufficiently voluminous, the consequences of disclosure suffi-
ciently grave or the risks of accidental disclosure sufficiently great, the balance may well tip
in favor of keeping records sealed. These considerations are not exhaustive . . . .”); In re
Application of Newsday, Inc., 895 F.2d 74, 80 (2d Cir. 1990) (citations omitted) (noting that
courts have the “authority” to either redact a record “to the point of rendering it
meaningless” or else “not to release it at all”).
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ing of the documents at issue, including the transcript of the sealed sentenc-
ing proceeding. Finally, the court properly considered the alternative of
redaction and permissibly found that it was inappropriate.
Intervenors also advance a procedural argument that they were denied
a meaningful opportunity to be heard before the court denied their motion
because the court allowed the parties to file their opposition to the motion
under seal and as a “Sealed Event.” As to the impropriety of keeping the
mere existence of the opposition from the public, intervenors are correct. We
cannot discern—and the district court did not provide—any reason why
intervenors had to be shielded from the bare fact that the parties opposed
their motion. Even the United States avers that “[d]ocketing the joint oppo-
sition as a ‘sealed event’ may well have been inadvisable.” Our precedent,
which does allow for partial or total sealing of briefs, including briefs that are
themselves related to sealing, still contemplates that the briefs’ existence at
least is noted on the public docket.32 The district court therefore erred in
allowing the parties to file their opposition as a “Sealed Event,” especially
without any explanation or justification.
But, despite that error, intervenors were not so deprived of a meaning-
ful opportunity to be heard as to justify reversal. First, they had notice of the
general reasons that the parties would likely proffer to keep the information
under seal. The documents unsealed after the court granted intervenors’
2020 motion contained passages identifying the interests that the parties
viewed as compelling enough to justify sealing. A redacted proposed order,
_____________________
32
Hearst, 641 F.3d at 185 (“[T]he district court could have simply given notice that
the government had filed a sealed motion to close the upcoming sentencing proceeding . . . .
Anyone who wanted to see the government’s sealed motion before filing an opposing
motion could also have filed a motion to do so, which the district court could have granted
or denied in the exercise of its sound discretion.”).
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for example, discusses the “substantial likelihood of imminent danger to
[Saman] and his family” and an “ongoing criminal investigation.” The inter-
venors’ primary justification for unsealing the documents was that Saman’s
cooperation was the United States is now public. That cooperation engen-
dered the parties’ concerns in 2020 and, ultimately, the compelling interests
that the district court specified in its denial of intervenors’ motion in 2023.
Contrast, for example, In re Capital Cities/ABC, Inc.’s Application for
Access to Sealed Transcripts, 913 F.2d 89 (3d Cir. 1990), which intervenors rely
on. There, the entity seeking access to sealed documents had “absolutely no
information concerning their subject matter,” and it likewise “had no infor-
mation concerning the government interests” involved. Id. at 95 (emphases
added). Here, intervenors were both aware of the general subject matter of
the sealed documents (and regardless limited their request to documents
related to Saman’s sentencing proceedings) and had some sense, even if
general, of the governmental interests in the case.
Second, after our own review of the record, and considering the com-
pelling interests identified by the district court, we conclude that the proce-
dural error regarding the opposition brief made no difference to the ultimate
disposition of intervenors’ motion. Even assuming that the court had pub-
lished the brief with redactions, much of the opposition brief unquestionably
would have remained under seal, including virtually all of the material legal
and factual substance. See Hearst, 641 F.3d at 185 (stating that courts have
discretion to deny motions to unseal briefs).
In their reply brief, intervenors note potentially relevant arguments
gleaned from the parties’ response briefs. For example, intervenors allege
that if they “had known . . . that the [United States’] case for secrecy rested
on a distinction between official acknowledgments and other public reports,
[intervenors] could have highlighted that other circuits have rejected that
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No. 23-20097
theory.” That is perhaps true, but there is no doubt that that argument (and
others derived from the parties’ unredacted briefing on appeal) would not
have prevailed. Again, even if the court had unsealed the opposition brief as
much as possible while still safeguarding the interests it identified in its ulti-
mate order, the outcome would not have changed. The arguments that un-
questionably would have remained substantially or completely under seal
would still have been dispositive.
We therefore affirm the denial of intervenors’ motion to unseal
despite the procedural error in not publicly docketing the opposition brief.
* * * * *
The denial of intervenors’ motion to unseal documents related to
Saman Ahsani’s sentencing is AFFIRMED. This panel retains jurisdiction
over appeals from decisions on any re-urged or subsequent motions related
to the same.
22