go back on record please we're back on record in case number fifteen dash five zero two five nine united states versus  first is united states versus joe so i'd like to draw the court's attention to that i submitted that at twenty eight ga and that case was decided by this court on october twenty first twenty sixteen you're speaking now  it was a two to one panel but what the majority did in that case i think they adopt a lot of the arguments that i make maybe i could interrupt you if i could please it's not entirely clear to me exactly what relief you want because a couple of different things so there's there's the docket and maybe you could just ask exactly what really feel looking for so that that's a great question i think it really gets to the heart of the issue is what is the remedy in this type of case and i think below and to some extent the the government as well but more so the district judge views this as an all or nothing approach or a black and white approach or an are a binary on off situation where it's either closure and when we look at the case law the issue of closure or ceiling so i understand the court's question because i ideally i would like any mention of five k one point one seal but if the court finds that it's somehow bound by c b s the c b s case where they were dealing with rule thirty five or somehow because sentencing documents are part and parcel of the sentencing proceeding and because sensing proceedings are open that every single document involved in a sentencing needs to be opened then the remedy would be that i would be asking for i think it's pages fourteen and fifteen pages fourteen fifteen and a or b it's indicate the the four documents and so as far as the motion the may fifteenth motion for downward departure that should be  the docket should not reflect five k one point one so when so i would want that i would want that this court order that the district court have the clerk modify the docket which district courts do all the unfortunately specific is that right they refer to this particular five case that get one point one that's the next question actually because it's it at points it seems that you're ok with five k but not five k one departure ok and there are therefore entries on the docket you're concerned about four entries sorry for entries in the table of contents and you're concerned about the title of those documents is that fair to say correct document number thirty five document number thirty s number forty two ok great then if a human being walks into the courthouse and and looks at the piece of paper look at the actual filings as your position and those ought to be sealed because you filed i think one of them manually as you put it in your brief not electronically to get around this very problem i did ok so what do you want to do with those filings is there are you looking for the relief there they should be the last there's a specific request for them and then the  thought the district court viewed this as an on off switch isn't there some language in the order that indicates the judge thought that there was a presumption that could be overcome but had not been correct and so what i'm saying is what they just record was doing is a requiring a compelling interest and substantial particularities and i think he eard in saying that there has to be a specific threat and that's why i'm saying that's like you know letting someone shoot first and ask questions later it's if that were the standard if there had to be a specific threat then i mean that pretty that presumes that we just let everyone know that there was five k one point one and then if there's a threat that they're going to kill the person in prison or kill their family then you can seal which is totally contrary to the cat is out of the bag argument that the district court made relying on two fourth circuit cases  think it would be important for this court to give my request respectfully request that this court give guidance that this notion of cat out of the bag isn't a reason for not correcting something that is dangerous so in this in this case i asked the district court to sanitize the the table of contents docket so that it wasn't available to everyone rolled why would anyone on a smartphone or any remedy certainly would be at the very least to get rid of those references in the docket because i view those as the most dangerous thing is the court apply the experience and logic to this i think that what the court did know i would say no i think that the court did a hybrid and looked in kind of did a mishmash of the common law role and to apply it are should we assume that there is a qualified right to public access here concede that there is a qualified right of public access to sentencing proceedings but not to the documents involved here so i'm drawing a distinction when we talk about five k one point one five k one point one you know for thirty years from its very beginning from its birth talked about safeguards procedures in the comments to five k one point one it talks about how the court can do can have a side bar are doing are determined by paid one point one under under seal also the statement of reasons is under seal and the reason the statement of reasons for the sentence is under seal is specifically for this purpose to protect five k one point one information so you've conceded that there's a qualified public access to sentencing proceedings but i think what you're arguing is that you're not conceding that servers that right extends to this type of proceeding or are you arguing that that it does and here it was overcome my first argument is that it doesn't it doesn't apply to fact a one point one because those should be carved out and given special protection ok i understand that c b s is there's some tension there w across the country if we assume that the qualified right a public access does to apply to this type of proceeding this exact type of proceeding what's your best argument here the presumption was overcome your honor here the presumption was overcome first and foremost because we're talking about six hundred fifty six thousand dollars worth of methamphetamine we're talking about an international drug smuggling organization we're talking about multiple trips of drugs from mexico in mexico into the united states also an organization that is distributing methamphetamine in the imperial valley in this case john doe was driving a load of methamphetamine worth six hundred fifty six thousand dollars and unfortunately his wife and child were in the car at the time the cooperation in this case  it was very specific and we don't have to decide what's right i won't go into it but but it was the government decided that by choosing to file a motion so it doesn't seem to me that we would revisit that because the government crossed that threshold correct so i think knowing what we know about who's a rat all these different web sites and the fact that paper matter just having proof is what's required in prison in order to tax people and do all the horrible things that happen to people in prison that alone meet the eastern i think is the eastern district of texas found was sufficient to happen across the board  that everything should be under seal so i think in this case we have really strong facts showing we don't have what the disorder court required which was a specific threat that he's going to get killed if that's the standard people are going to die so i think the key case that you wrote your honor codes kristin is united states versus index newspapers and i didn't i agree that and this is an if your first impression i mean no no court is ever looked at how do we specifically treat five k one point one document where there is no media request lying to the brave new world for stood upon us by the internet age and it shows insufficient regard for possible deadly entire consequences i would like to reserve the rest of my time may please the court daniels upon we have the united states your honor as to the first question does the first amendment apply to the documents at issue here i think that question is answered by c b s ink this court held thirty years ago that rule thirty five materials including those that outline a defendant's cooperation are subject to a qualified right of first amendment and common law public access in light of that holding we're not at liberty to sort of go through again the experience and logic test and answer that question again is does the first amendment a part of the type of documents this court held as much and c b s and you  no important distinction between the facts here in fact c b s the delorean between rule thirty five documents and five k one point one versions no there's not any distinction between the documents itself it's the same thing the government's ability to use this very important tool yes your honor and certainly the landscape has changed in the thirty years since c b s my point is only that given the language in that case neither the district court exists then why if a qualified right exists then the next question is did the district court in this case abuse its discretion when balancing the compelling interests in sealing and determining whether there was a substantial likelihood of harm absent sealing on that point our position is that district court in this case was within its discretion for two reasons one that the fact of the defendant's cooperation was already public in several forms in the defendant sentencing summary charge that listed five k and then multiple times at the sentencing hearing the court made reference to five k in a specific context that made it clear that the five k it was referring to was the government's recommendation based on the cooperation of the defendant so in light of those already being in the public record the it was an abuse of discretion for the court to say that there was not a substantial likelihood of harm by the additional five k one point one reference in the government's papers as opposed to what was already in the record elsewhere and secondly the courts was also within discretion given the nature of the cooperation at issue in this case this was a case where both parties agreed that there had not been any actual threats made against this defendant and moreover it was not the type of cooperation that would necessarily lend itself to threats or to retribution what the defendant had offered was more in the way of background and general information about the organization that he was a part of and  so there was no indication that the defendant was going to testify against anyone or that this was sort of specific cooperation that would invite retribution from any party he can i was just at a furious city  whether or not we agree with the court's decision on a clean slate we can't concede that the district court's decision in this case was illogical or implausible wholly without support and inferences in the record that say that's where the defendant certain that it's certainly government's interest in sealing and in this case and in all cases not not just that the effect that it would have on the specific investigation at issue but on a structural level we we don't have an interest or we have an interest in and wanting people to cooperate so we are it's an it's an awkward position well it's a pretty tepid position i mean you took one position in the trial court that reads really differently on appea counsel real to really really differently on appeal but what about that you mean i don't judge often i don't mean you personally but your office you know makes the decision and that's within your office is discussion to file this motion so you know to the earlier conversation i think i think we don't revisit it that call and that tells me that there was the degree of cooperation was substantial this was that there had been you've mentioned i think that there was no credible threat but look there were menacing remarks made and that was part of the government's presentation earlier but now it seems like you're really ready to walk away from this if i could clarify right if the fact that we filed these publicly before the district court is a symptom of the fact that this specific district court requires all five k memos to be filed in exactly the manner that the united states did this is not a situation where we sort of independently said hey i think would be a good idea to put five k one point one in the record publicly this is a court who's made it clear in all of these cases to our office that he will not accept five k motions that are not filed in this public way so it's not that's helpful that's helpful first a snow excuse me and i appreciate that background could you ask provide a little more background for me because i didn't match up the dates and i should have did understand the history in this case the at some point the defense asked of the but he references to five k one point one be sealed is that correct was that at the sentencing hearing the way that it worked timing wise was the united states filed its motions publicly righted next day i think defense filed a sort of a short motion to seal the i think they filed a last minute motion to seal and then yes and then two weeks later on the morning of sentencing filed sort of a more supplemental motion to seal again just the five k one point one references the government oppose the motion as my recollection that they did not oppose most of the the record wasn't essentially the prosecutor said i just got this is morning i haven't looked at it and that was that was the exten have an opportunity to review it he said he had not reviewed it ok so i have just one question do you know what's going on with the public docket now have you looked at it recently because i guess when we tried to access it now none of these documents are even shown and i don't know if it was just the kind of access we had or if you guys knew what had happened what that could be like the reductive they're just not there i assumed that that was a symptom of the be a public record that something had been filed out think that's contested so so i'm saying that out loud so that if either one of you disagrees with me about that i would need to know that for at least for my my part ok just to summarize your honor the first amendment clearly applies to these proceedings our position is only this that the district court in this case was not was within its discretion and its decision not to seal these documents is not implausible illogical or wholly without support in the record we certainly have an interest as as prosecutors and ensuring the privacy of our cooperators and making sure this type of information isn't revealed and it isn't routinely revealed but on the facts of this case given the nature of the cooperation the lack of threats and the other instances of five k being mentioned on the record we can't say that the district court's decision here was illogical thank you coun so i want to follow up to kristen on i forgot one one of the things and i think you mention it as far as the threat here and why there was a you know what the particular issue was made and it was abusive discretion and i forgot to mention that not only was his wife and child in the car but at the page nine i talk about there was a threat to his family if they so he was threatened like if you do anything dirty if you do it's dirty there was a threat that i misunderstand you my filings did not put anyone on notice that john doe was cooperating they don't say fi came one point one and the fact is that they are not public in the seventy's they're california they are restricted they're not available on pacer you cannot see them only by going into the clerk's office can you see them and they do not say five k one point one and two have my best possible clear answer the court's question about what remedies being sought i would refer the court to page seventy six and seventy seventy sixty seventy eight i have in tables my first remedy i list is actually i'm a lot more specific there are six documents that i  requests to be sealed and any alternative if the court decides not to seal them on page seventy seven through seventy eight i ask for reductions as a narrower restriction on if there is a first amendment right to fight one point one documents i get to hang on just a minute because i thought that i had reviewed that and i thought it was four but it's it's six is that right if i got it right it's to make sure before i lose you that i got this docket thirty five thirty six thirty seven forty one time where paper would be a lot faster than i i see it thank you and your honor judge soto as far as the filing of the of the most of the motions as soon as i saw the docket said five k one point one i immediately filed in the in the transcript says kurt k u r t but i referred to it as a curt motion later as in short i felt a very short motion as i wanted to do it very quickly to alert the just the court and so then i had to very quickly as quickly as i could put together my twenty page motion which i filed on the day of sentence scene and said i'm happy to continue this the government did not have an opportunity to read it and said that he didn't have an