all judicial proceedings including the defendant's plea hearing where shielded from public from public view for approximately nine months and denying appellants motions to unseal the criminal case pending against mr records the district court refused to even confirm its existence the extreme secrecy to which the prosecution of mr reckon its was carried out is anathema to our open system of justice what is it that you want we would ask that the court issue an opinion that's correct your honor that is because we were not aware of judge sullivan's the existence of judge sullivan's rulings until after our opening brief in this appeal was filed i would point the court to this is not a problem for you it it from one order as opposed to two in that case it was the newspaper's mistake i would say it's not our mistake here we didn't know about these orders but the court found that it did because it could be fairly inferred that the appeal was being taken from all from both relevant rulings the court considered the propriety of both rulings i think that's similar here obviously there's no prejudice to the government the government in fact argued relies exclusively on the july twenty fifth ruling by judge evident from the record in this case that there was no consideration of alternatives to wholesale ceiling which is contrary to this court's precedent the united states against joe and certainly the government has not even attempted to argue and i don't think it could that this whole seal ceiling was you know essentially that the government wanted to keep secret the fact that wrecked minutes was cooperating and i think at the proceeding before judge sauls and that's what like the ceiling of you know where suppression motion which goes on for days or were in this this was a this was a good at most twenty minutes and once you once you will maybe i do too many of too many guilty pleas but once you went to take out the the information that the government didn't want the squad was it's basically nothing it's just that it's a description of all the  role that the public play is an oversight of plea hearings particularly given that that most criminal prosecutions end with with guilty plea hearings i think they're an important element of the criminal justice process and in fact that's exactly what this court held in united states  against however when it determined that the public has a constitutional first amendment right of access to plea hearings and related documents that being said this goes beyond just the plea hearing it's the docket itself it is the roadmap to the criminal proceeding is in fact the very existence of the criminal proceeding our client's opponents are well aware based on all not just all the media reporting and public reporting on this issue but because of the filings that were made by the government in the seabrook and grant cases of mr reckon its cooperation the fact of his cooperation was not a secret because the docket sheet itself was not public and there was no public knowledge of the case itself this is a compound in constitutional problem if i'm just trying to still understand what it is precisely that you are challenging is just sullivan had articulated all of the fact the necessary factors in connection with determining that it was appropriate under those circumstances to seal the plea and thereafter a judge abrams and thereafter judge stein had in effect either repeated what he said or incorporated countervailing the two countervailing interests that have been asserted by the government and were adopted by judge solomon without any adversarial process seemingly whatsoever without consideration of the motions done seal that were presented part one judges o the five is reality to think that those countervailing interests are present in this case the government asserted witness safety as an issue as well as the protection of ongoing investigations given the amount of public  information including concerning information of disclosures that the government had made about mr reckon its cooperation to judge sullivan and accordingly the abuse of discretion standard applies to the overall ceiling determination however this court has held that in cases implicating the first amendment right of access to the common law right of access that this court's inquiry is more searching and is more stringent than it would be under ordinary abuse of discretion discretion standard but this court has reviewed underlying the underlying record because it is conducting a more stringent a more stringent view in light of the first amendment is just so that i understand book correct me if i'm wrong at any point  your actual position is maybe two fold but at least with respect to just sullivan he the he did not have a basis in the record and the government didn't provide to him a acknowledge that judge abrams and judge signs opinions do not include factual findings at all and rely entirely on the july twenty fifth ruling by just when this first come up i mean when was your client first aware and interested in this case one in everything but name only certainly the defendants were well aware of mr reckons his identity at that point one of the defendant's attorney is spoke publicly the new york times saying you know my client's only mistake here was being friends with you  that is correct and was so wise in that why is that too short a period of time to fully litigate the issue and that's one of the problems in connection with determining whether this is capable repetition  review the united states supreme court and this court have consistently determined that closure orders and sealing orders are generally too short in duration in order to be fully litigated and that is definitely the case here  month a normal gestation period of a fetus it was too short it was a case that it was inevitably going to involve supreme court review you have very fact specific challenge  it's not as if you're deciding whether a woman should be entitled to a constitutional right to abortion which obviously was going to take more than nine months of the side and to go to the supreme court if i understand your position it's there was an under well established the there was an abuse of discretion because of the information that the government more than to keep secret was essentially a matter of public record and it seems to me that that would not have that that could have been resolved in a relatively short period of time i would point this court to actually the d c circuit decision in washington post against robinson in which the government made the argument that it makes here without citing any authority and support in other words that because appellant's here didn't seek expedited review of the district court's rulings that should count against them in  the the the expeditious route and i think that that the appellant's in this case although they did not seek expedited review in this court which again i would point to to robinson because i think it's a persuasive decision was very similar in the sense that it was a plea agreement that it sealed involving a cooperating witness the court said yes it's possible that in those cases review could be obtained but it generally cannot be obtained and in light of the importance of contemporaneous access to be that it would foreclose review of cases where review was warranted and i would say that this is one of those cases the government here has argued that this is a routine practice that it is routine to seal cases involving cooperate in witnesses in their entirety i think the they're not the same and in every case it seems to me that that in this particular case it was possible to get it to get review before before the case became and i want to say it's moot but before before the indictment before with before there was complete and sealing i think the fact that it was again possible will decide the case and say we'll issue an opinion to follow i mean there's not there is no insensitivity to the need for expedited review on monday i was sitting on a criminal case where the defendant got a relatively short sentence i'm not certain twenty five months he moved for a stay in september was right of his surrender that was denied without prejudice and the court that involves similar closure and sealing orders united states as an example i would also note that given the circumstances of this case where there was wholesale sealing that by its very nature of aids public challenge because the members of the media and the public cannot challenge the ceiling and closure of cases that they do not know exist i think given that as well and given the fact that the u s attorney's office has again represented that this is a party in practice in cases involving cooperating witnesses i think that that i think cuts against the government's argument that ceiling was appropriate in this case your honor i think that you are correct to see her complaint disclose the fact that mr reckless was cooperating in multiple investigations and that he pled guilty so it disclosed the the eminent and at the public would have no the press would have no knowledge or opportunity object to closure of his sentencing proceeding if it did not have access to the docket and did not know when that sentencing proceeding would take place that was really the primary reason that d n a and  filed its own separate motion to unseal i'd also note that because we only had access to the part one judge judge's ruling judge abrams ruling on jane in fisher's motion to unseal we had no a district court will do we didn't see what was happening behind the curtain so to speak and that is the the rationale for d n a info a filing its own separate motion at a later date but you reserve some time for  good morning your honor is kind now a day for the united states i am one of the prosecutors on the case your honour's do not need to reach the merits of this appeal i don't think there is any serious dispute that argument you're making that's that's fair your honor and i think really it's a matter of fact specific to this case and what happens in to mr reckon it's his cooperation it was unsealed after nine months and we had not generalized assessment of safety concerns we had real specific safety concerns and of course this goes to the merits argument i'm just so i want you to focus on the moon a star you have because that is of interest to me some having a hard time figuring out how to circumvent if that's what we want to i think another way to think about it is also the delay in this case coming from in part the delay from the appellant's they palance as judge korman the d c circuit has pretty emphatic legal on the other way on that point and that's correct on that that's actually correct however in this particular case on the facts specific to this case half of the ceiling period five months of the nine months which due to the delay in john fisher filing their brief i don't know if they had gone the regular course and filed more quickly whether they would have even needed expedited review to have the merits maybe on the sun to sue ms townsend said but i thought that so at some point they didn't even know what it was that they could challenge and maybe that accounted for some period of the one however both those judges who were sitting part one did have and we had presented to the judge sullivan's findings of fact so they did rely on judge sullivan's findings in making their decisions letters i believe about every thirty days so we submitted letters ongoing letters setting forth the facts specific to misdirect its cooperation the ongoing investigations the threats to safety to judge sullivan yes but not the subsequent letters your honor because there was subsequent letters after those spam and at that time they had everything i've seen prior including judge sullivan barri originally by a complaint and then where you put a lot of the material in which they claim taken into tak have what was already going to become part of the public record sort of like the cat out of the bag and i'm afraid if i read your brief correctly that material was also in the subsequent case sometimes you know it's turned his office proceeds by complaint because of the stage of the investigation because he wants to have a certain period to continue investigating  before indictment is returned and because if investigations in influx a complaint allows you to move more quickly than an indictment otherwise well and sometimes the complain provides a message not only to the defendant but others who are complicit in whatever the illegal conduct is and i take it that part of what happened here was that you by proceeding just where i think your honor is going the government never named mr breckon it or gave any identifying information about him in either the seabrooke or grant complaints the only if you look at the face of the to in order to determine the identity of who c w one mr records is and i also think there's a material difference going to the merits argument between official of knowledge of who cooperated witnesses a here there were ample facts before judge solvent to find at least two countervailing factors calling for sealing and closure first and foremost was safety of mr reckon it's and two facts are important here on the safety point again there was no generalized assessment by the government in its application to judge sullivan about its safety concerns with respect to its records he pointed out specific threats made speculation that he was cooperated and so the judge belvin to the second point on safety was holy he will be reasonable for him to find that ceiling was appropriate and so when you say you pointed that out july thirteenth two thousand and sixteen order directing the government to submit a letter explaining the need for continued sealing and that's on page three of the letter quote at the bottom specific one would have been in the initial application or were there in the initial application to judge sullivan was there or similar i don't think in the initial application for closure we set forth corruption involving high level and my p d officials and the third bucket of investigation and this is one in which there was no real media reporting at the time  investigation of the corruption at the westchester county executives office and the snow way just turning to judge abrams i'm just trying to figure out how to analyze those office concerning who had the original case so she was provided those materials it is true that she did not make specific findings and did not say split so what the factual basis was for seeking and is it the government's position that just by referring to the attached letter of the ex parte letter that that's enough in connection with  that by the way this unified court theory is that confined to the acts of a part one judge when it's in the context of an ongoing criminal case or is that a broader theory to make a determination the government's position is that we should view that as really almost a law the case of a part of the part of the  ongoing criminal proceeding in a case like this and so whatever whatever was in the mind of the presiding district court judge we assume was also in the mind of the part one judge records have been satisfied and then he goes on to say notwithstanding the presumption of the exercise on the boat for common law on the first amendment the documents make it be kept under seal of countervailing factors in the common twenty sixth two thousand and sixteen ex parte letter to judge abrams is that that was among the materials that were cited in our in our brief and submitted separately to the court and that's a july twenty sixth two thousand and sixteen letter to judge abrams and he did attach the july twentieth twenty sixteen letter the government had submitted to judge sullivan as well as judge sullivan's july twenty fifth two thousand and sixteen order so that's what judge abrams had before her similarly the there was a july twenty since you were contemplating having to disclose it in november and that's a fair point your honor however the investigations were still ongoing with respect to the lesser county executive no one had been indicted there's hardly been at that time there hardly been any of that all speculation that that investigation was even going on so your honour's right that ultimately we would have had to disclose notwithstanding  concerns about ongoing investigation because of a public trial date however i don't think that cuts against us in seeking to continue sealing when we had these ongoing investigation anderson i'll keep this brief you're on i did want to respond and emphasize that first that there was no delay here mr fisher acted pro se when he initially made his motion to unseal once that was denied a d n a info made a separate motion to unseal as soon as it were supposed to look at this is not categorical and was supposed to look at the least in the context of this particular issue the actual duration of the period of time  before you now with the case having been entirely unsealed as of november twenty second just a few weeks ago was when all the redacted material was unsealed it was the case was first made public i would say and in march and so  actually in this case and i would point again to the d c circuit decision i think it's well reasoned decision and washington post against robinson that discusses this in the context of a plea agreement which is it recognizes the court recognize in that case that it is different in a criminal proceeding or proceeding for example that where the direction of that proceeding is always going to be too short frankly for appellate review but when it comes to sealing orders i think it's important to note because the government didn't he district court controls the timing of unsealed and so at any point in time any point in time the district court could have unsealed this material the government could it could have done it on the government's motion which is what occurred here the government moved to unseal the unsealing process unnecessarily means that it can be unsealed really at any time so these these types of cases it isn't that they always have to update review that's not the way i certainly read the case law and there is no