Bryan Smith

Files on cooperating federal defendants often sealed, Sacramento case shows

Published: Sunday, May. 26, 2013 - 12:00 am | Page 1B
Last Modified: Wednesday, May. 29, 2013 - 8:34 am

The sentencing Friday of a former operator of a Sacramento marijuana dispensary brought into sharp relief the increased secrecy surrounding plea bargains and punishment of federal defendants willing to help the government in exchange for a shorter prison term.

A prosecutor's attempt to seal a sentencing memorandum in the case of Bryan Smith encountered stiff resistance from U.S. District Judge Garland E. Burrell Jr., who is known to be more scrupulous than most of his colleagues on the Sacramento federal bench when it comes to the evaluation of sealing requests and procedures.

Smith, 28, of Elk Grove owned and operated the R&R Wellness Collective in south Sacramento. He was sentenced by Burrell to six years in prison on his earlier plea of guilty to conspiring to distribute marijuana and manufacturing it.

But it is the fallout from Assistant U.S. Attorney Richard Bender's request that the government's sentencing memorandum be sealed that distinguishes the matter from garden-variety pot cases.

The push to hide identities of cooperating defendants began picking up steam approximately three years ago, with judges granting more and more requests by prosecutors for sealing documents.

In a prepared statement on the matter, U.S. Attorney Benjamin Wagner said his office looks at "whether disclosure of the information would compromise an ongoing investigation or potentially lead to the destruction of evidence."

"We are also concerned, however, about the safety of defendants in custody if the nature of their cooperation becomes known," Wagner said.

"Because court records are online, inmates in federal prisons often have access to them via prison library computers or by calling friends outside who look it up and relay the information back to them."

"Also," he added, "if those who cooperate are identified publicly, others will be reluctant to supply information that would be valuable to law enforcement."

Sealings more frequent

However, the Smith case is an unusual instance of a sealing request sparking both a judge's ire and public exposure of the practice.

The day after Bender submitted his request, Burrell fired off an order denying it because "it did not include the majority of the required information."

He pointed out that, under court rules, the request has to "describe generally the documents sought to be sealed; the basis for sealing; the manner in which (the papers)… were submitted to the court," and whether the papers were served on all other parties in the case.

The judge disclosed that Bender's memo sought a reduced term for Smith under two sections of federal sentencing guidelines – one addressing "circumstances not taken into account by the Sentencing Commission" and the other addressing cooperation with the government.

Burrell acknowledged sealing was justified with respect to the defendant's cooperation with authorities but, he said, Bender had no legitimate reason for sealing the rest of the document.

The material the judge said Bender should not have tried to seal is primarily the prosecutor's argument that Smith deserved a sentence reduction because he paid $37,000 in fees to secure a city business license for the dispensary, he had complied with zoning ordinances and other regulations, and he reported marijuana sales and paid taxes on them to the state Board of Equalization.

The sentencing guidelines were crafted long before California legalized medical marijuana, Bender pointed out, so they do not take into account such a development.

This argument by the veteran federal prosecutor – a supervisor in the U.S. attorney's office – is unprecedented in Sacramento, where the office has taken a very hard-nosed stand on pot sales, contending there is no place in the defense of a federal prosecution for medical marijuana in view of federal authorities' zero-tolerance policy on marijuana.

But Bender hastened to add in the memorandum that the things Smith did right do not excuse his criminal activity. Under California law, sales of marijuana for medicinal purposes must be carried on by a nonprofit and, Bender said, Smith was in it strictly for the money and he had realized huge profits.

In his order denying Bender's request to seal the memo in its entirety, Burrell said the prosecutor could either come up with a good reason by the next morning for sealing the document all together, or he could file it with the part about cooperation redacted.

An unusual stance

Burrell is the only federal district judge in Sacramento who has reacted this way. The section of the court's rules he cited is consistently ignored by some of his fellow judges.

An exception is U.S. District Judge Kimberly J. Mueller, who has made adherence to the rules governing sealing a priority.

As a former media lawyer, U.S. District Judge William B. Shubb is mindful of the public's "right to know," and he has historically been careful about what he seals. But he appears to have wearied of the constant pressure from prosecutors to seal plea agreements of their choice and began sealing all of them.

Sealing only those agreements citing a defendant's cooperation fools nobody with regard to concealing an informant's identity, he explained.

A request to unseal a particular agreement would be dealt with on its merits, the judge promised.

A day-to-day review of seal requests by The Bee, over a period of years, shows that some members of the court do nothing but rubber-stamp requests for closure, no matter how cryptic and unenlightening they are.

A number of criminal defense lawyers interviewed by The Bee said cooperation with the government has become a favorite way to ease the pain of harsh federal sentences.

"Almost everybody cooperates these days," said Bruce Locke, a respected defense attorney. "It's about the only way you can be assured of receiving reasonable treatment."

Assistant Federal Defender Timothy Zindel agreed.

"It's a necessary evil," he said of the constant stream of sealing orders, "because there is so much gratuitous punishment built into the system."

Once Burrell shut down Bender's effort to seal the Smith memorandum, the prosecutor filed an abridged version of the document and gave the judge a letter vouching that Smith is cooperating.

Burrell reviewed the letter and gave it back to Bender at Friday's hearing, a routine commonly employed by prosecutors to inform the judge without putting something in the file.

Bender filed a separate pleading in which he noted the obvious conundrum: "Unfortunately, there is no good way, consistent with the local rule, to address both the reasons that sealing is needed and making the information public.

"It is a compromise addressing competing needs.

"Government counsel knows the court appreciates this and asks for the court's patience in sorting out the best way to approach the problem."

In that same pleading, Bender asked Burrell to seal that part of the judge's order referencing Smith's cooperation.

This did not sit well with Burrell.

He issued another order Thursday denying the request and cited a series of federal appellate opinions that stand for the proposition that, under the First Amendment, "the press and the public have a presumed right of access to court proceedings and documents," including those related to sentencing.

Quoting from a 1990 opinion that is binding in California federal courts, Burrell noted that any exception in a criminal case must satisfy three requirements:

• Closure serves a compelling public interest.

• There is a substantial probability that, in the absence of closure, this interest would be harmed.

• There are no alternatives to closure, such as redaction, that would adequately protect the interest.

In ordering closure, the judge wrote, "the court must not base its decision on conclusory assertions alone, but must make specific factual findings," after the party seeking closure presents facts supporting it and demonstrates that alternatives will not satisfy the overriding reason for taking such an extraordinary action.

Call The Bee's Denny Walsh, (916) 321-1189.

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