may please the court good morning your honors my name is ethan ballin this morning i speak for appellant damien slew i'm going to try to reserve two minutes of my time i  understand what haas aside from everything else about this case your special need for this is the appeal as i understand it is the fact that you need to see this in order to prosecuting appeal  what you want to see the material in order to prosecute an appeal yes how could it possibly help you want to appeal when it was not before the jury or and you keep saying you needed to cross examine at the trial so far and subpoena applications and found that they identified specific evidence that would support shawn dale boyd's defense to felony murder at trial he made representations to counsel about how that evidence would help them he got the evidence he later flipped and testified that he participated in the felony murder so i don't know what representations were made but we know judge gonzales rogers reviewed it she was aware of it then judge gonzales roger sat there and watch bell boyd confess to participating in felony murder so let's take something i haven't seen and suggest that those accounts are inconsistent that they're irreconcilable why what makes you believe that there would have been representation in the applications for the seventeenth subpoenas that were inconsistent with the testimony well my position would be that if you're selling something to protect the trial defense to felony murder and your subsequent testimony later is i committed felony murder or participate in a felony murder those two things appear to be at least on the face potentially if not necessarily irreconcilable to or simply requests for information and the applications need to explain the need for the information so what reason do you have to believe that there would be factual statements or other things in those applications that would contradict the testimony that the person was giving after they cooperated because an application that would says you need to seal this because it reveals my trial defense and you actually don't ultimately have one because you're confessing to felony murder and maybe that's because what you got from the subpoenas demonstrated that you don't have one right otherwise the lawyer is saying i want to sing from ation because this is what i'm being told by my client for example and i want to see and i want to get the evidence and then he gets it and he says all this my defense is going to be that i have an alibi why don't you go see if i have an alibi defense i mean what happens in criminal defense and you know as lawyers usually try very hard not to find out whether the person was guilty or wasn't guilty they just tried look at the facts objectively and say oh well maybe somebody knows where you were that night should i go ask i don't i just don't see it as well i think i think the difference between maybe i should go ask and applying for a seventeen c subpoena goes back to the supreme court's work in nixon it requires a very specific showing it's not investigation which is how the magistrate judge couched it they were doing an investigation and that's what the subject of your honor's question is seventeen subpoenas are by definition not invest atory there are specific requests for identifiable material information the nics the standard is hard to meet district judge all the time we jacked up locations for subpoenas for trials and judge burton knows this most closely judge wallace to long ago because there isn't that specificity because a district judge says this is a fishing expedition but it's a material to be used at the trial material to the defense and right that doesn't necessarily mean that the person is making admissions of guilt in these applications or anything but weren't these four cell phone records mostly though and so if you're trying to get cell phone records and you put in the application a statement such as they are suggesting that i had a relationship with a person and that i had often had contacts with them and i want the cell phone records to see what they show on that so that i can use them at trial and so they get those why is that inconsistent with later saying ok you caught me i did it i don't know if it's inconsistent that's why i would like to read them in the way i see this and i go to the second six circuits case in motion where judges have recognized if this is a this is brooklier interests are and one is a protect the interest things may be sealed for them we take no truck with that i defend plenty of cases in the district court but after the passage of time if that protective will interest evaporates then there's no need for stealing and so you're asking me challenging questions about what's in those applications and apparently i can't answer them extraordinarily well because i haven't seen them perhaps my colleagues mislead in the they can lighten us but our position is now that after sean bell boyd has served his sentence of three years after confessing to felony murder where a key issue in this trial was whether or not boyd was with hugh at the time of the transaction or mr sulu was with q at the time of transaction mr sulu says hughes the shooter mr boyce says mr sl confessed to being the shooter it's a critical issue in this trial that now all these years later the only protectable interest that justified sealing was protecting shawn dale boyd's trial strategy and he had no  he when you give up your trial rights you give up that protection and that the passage of time like mowen at this point in time there is nothing to protect boyd for and perhaps at the end this may be into law to looking at a possible state murder  charge i think that is not a reasonable apprehension of fear on the hof in which the supreme court case perhaps that's easy for you to say it absolutely is he's me to say but if we look at the objective facts he received his three year bid almost four years ago served it got released and the state of california said boo they dismissed their case i also would note that his counsel didn't raise this issue of fear in a magistrate court didn't raise that notion of fear in the district court didn't raise that notion of fear an emergent the motion to learns i send you what you said you want to use to course examine him and you said you didn't so i've just spent several minutes trying to figure out why a said that and it says right here that counsel statement made on boys fair for admissions and they have been used to impeach boy talk about it when you come back i was impressed with the first circuit case of cravats we haven't really done much with this particular issue one alternative would we that we would drop the position of the first circuit and if we did do so how would that change your argument and how would you how would you argue if we adopt the cravats so you might come back a little later and tell us about that  so are you spending time or not we are spending time i would think about it please the court my name is mary jane chan they represent the united states in this appeal i will try to make three quick points in about two minutes and see the rest of my time to the real party and interest  the counsel for sean bell boyd first the government took a position in this case only because because the defendant actually opposed the motion to intervene by shontelle boy it but we've also come to the conclusion that the district court's order and is correct correct and partly it's because we are convinced by the analysis in the first circuit case the united states versus cravats the second point i want to make goes to the point that you were discussing during the previous argument which is that is there any special need and there is no special need that's been demonstrated i want to clarify that boyd did not plead guilty to felony murder if you look at excerpts of record page twenty one which is his plea agreement and cross reference  page thirty five he didn't and what he what he testified at trial was that that and what was in contested at trial was that he was not even in the car when music was shot he was not in the car slew recognize that testified at trial that he was in the car he just claimed that he wasn't the one who shot him so that i think is something that needs to be clarified but in any case whether he has a need or not or  relevant when we're talking about what's at issue in the applications which is quite subtly work product work product that shows the mental impressions of the defense attorney exploring and investigating possible defenses for a boy when he was thinking about potentially going to trial that doesn't expire with or and it's a strange kind of work product though because it is provided to the district court it is but i want any law holding that that's worth product it is in the sense that the will seventeen specifically makes an exception to keep that privileged in private with the ex parte motion but also this court's law on implied waivers i think is very instructive the only way that these these materials or these mental impressions were waived with respect to the privilege was for the purposes of taining a subpoena so to the extent that there waived it's an implied waiver and that waiver is limited just as when a defendant makes for example in an effort ineffective assistance of counsel claim  that imply a plea waives the attorney client privilege but not for all purposes not for all time not for a codefendant to use in some other litigation or to attack their conviction that's only for the purposes of a fairly that particular claim so here the implied waiver is only as to whether the district court the magistrate judge would grant the subpoena so that doesn't expire there is no passage of time sort of expiration on this and you agree counsel though you mention the cravats case do you agree that if a special need is shown that disclosure might be appropriate it might be a special need do you believe would need to be shown i think i'm not really sure how to articulate what sort of special need and in fact i think it is a pretty ironclad privilege maybe some sort of bad faith or actual liar something on the part of the the applicant but in  this case as the magistrate pointed out the applicant is boyd's attorney not boyd boyd is the one who testified it would be very farfetched to have him be impeached in a material way at trial based upon the explorations of an investigating attorney who has to do that in part so that the diff so boyd can make a fully informed decision as to whether even to plead guilty and cooperate with the government isn't it almost impossible to make a showing of special need when you don't know what's and how can you articulate that what that need is if you don't know what the applications say i think that's right your honor but for example he wouldn't be able to it would be impossible for him to make a special need application to get access to the counsel's defense files even though maybe there are some really great material for him there that's off limits for him because it is work product it is something that which should be contained attorney client from please the court my name is ellen leonid and i represent the intervenor chandel boyd real party and interest the issue in this case is not about appellant seeking access to mr boyd statements the magistrate and the district court specifically found that there were no statements by mr boyd in the sealed materials nor are they seeking the subpoenas themselves which they have appellant is also not seeking the subpoena returns which he's never asked for the only thing that appellant to seeking are my theories as trial counsel about the relevance admissibility and specificity of those items which is textbook work product and there is nothing in the first amendment the common law or the due process clause that entitle him to that the cravats decision the only circuit court case to address this issue of the first circuit decided that correctly the affidavit submitted in support of rule seventeen subpoenas are not materials that are historically going to the moment and you're i mean it strikes me that the claim here for first amendment interest is exceedingly weak sense he's saying specifically that he's not going to show it to anybody and he only wants it for this particular use but suppose you had  you know a newspaper come in ten years after a company conviction and want to see these documents but you have same position yes your honor i believe that kravitz correctly found that these are not documents the discovery process is not something that's historically been accessible to the public and letting the public have access to criminal discovery is not something that would improve the functioning of the judicial system there just is no public right of access there's no benefit to the criminal justice justice system from the public being able to access these types of materials this isn't like a trial or a hearing or a sentencing would your position change at all if these were being sought in connection with the habeas case for ineffective assistance of coun no your honor in that case i think that there might be it might be easier to imagine how appellant could establish a special need i believe not in this case but in a b s case at least conceivably there would be some use for these documents as more of the work product our attorney client privilege gives way sometimes and sometimes it does i think that is a harder hurdle because attorney client and work product privileges outlast the case they must by definition have every time a case ended the other party would subpoena my file who who holds the right here to disclose this information if they suppose that the petitioner in the  wanted to unseal these applications and the attorney said no that's work product would the petitioner be able to unseal them then no your honor i think the cravats the reasoning of cravats would still control these documents are still not subject to public disclosure under the first amendment or under the common law mr boyd has a right to maintain his ex parte under seal applications under seal to rule otherwise would mean that every time a criminal defendant applied for a rule seventeen subpoena they would have to make a choice about giving up a potential theory of defense versus obtaining documents that might support it as anybody who practices law know defen theories shift they change they evolve there could be multiple legitimate defenses to the same crime and if somebody if a criminal defense attorney is put in the position of having to decide before applying for any rule seven hundred c subpoena which exact defense they're in this case the magistrate did not abuse that magistrate in the district court did not abuse their discretion in finding that there there was no special need there cannot be a special need primarily because on appeal mr boyd cannot be cross examined the statements that were contained in the subpoena applications were my statements they were not his and they were my statements about work product and about relevance about specificity about the admissibility of these records just as a hypothetical if you had what if one of these seven hundred c e subpoenas were applied for for let's say video surveillance records at seven eleven and the reason they were applied for is because the client had told the attorney that the client wasn't there and that was put into the application the attorney essential he said because you're saying it may not be the attorney's statement or the client statement but in this case it was the client statement my client told me that he was not there i want to prove this therefore i want the video surveillance and then it turns out that the video surveillance shows that he was there and  later we have a situation like this where the another defendant who was convicted after that defendant testified about his role wants to cross examine him by saying he told his lawyer that he wasn't there may respond of course place work product would still apply to protect that commute that statement in that case and the reason is that the fact that mr boyd ultimately thank you i'll try to make four points i'll begin with judge wallace's question thank you ron let's assume you adopt a first amendment now sister i want to get to the fifth amendment because i well judge burrs on may have remarked that it's the for the first minutes week in a circumstance i think the fifth amendment under most would get us home well respected crab's the special need that we would articulate is the one that judge berg's questions we're just getting at if the applications suggest that the client told the lawyer they had a defense that's inconsistent with their ultimate testimony that's information that should have been disclosed at trial where that becomes a claim on direct appeal is yet to be determined what we hope to do is see them what in the example the special need rogers was aware of facts representations made by boyd's behalf to secure court process and those representation and then inconsistent with his trial testimony where he secured my client received a life sentence that that's especially to investigate  that interest would be balanced against boyd's interests which will let me pivot to my second point one i disagree that the work product privilege survives to this dead as the courts look at the chevron casement third circuit that boyd has cited as well it cites to and that and the moat and sort of idea that see only time can change sealing in ten years is different than during trial at this time one put it aside we believe work product was waived by the voluntary submission at this time the work product privilege of only in the will is less important a lesser interest than mr slews ability to understand all of boyd's representation is relevant to the actual allegation this crime and i would go back to justice jackson on  murder but he confessed to felony murder on the stand and he got three years for helping the united states and are there reasons that we should have known that mr schmoozed not a trial that would make us be concerned that was that a truthful account if he had said prior things and his lawyer representing he had said prior things like i wasn't there with an alibi that would be the type of fact a district judge should be alert to and say whoa mr boyd just testified that he was at the scene but six months ago he gave me from my clients phone for slim's phone for boys own phone for phones i was unable to identify from the applications i would say the majority were cell phone records both really into content of communications and w appeared to be sea l s i cell site location data but again i'm not really clear on that but it was of that nature the majority of the interest which led me to believe it was possibly an alibi defense because that would be the type of information you would seek what the district judge didn't say is we looked at these applications we looked at boyd's testimony it's one hundred percent consistent official mr ballo they didn't say that which i found a little bit odd because that's the quickest way to end this you're honest have access to fantastic i'm probably out of this but if we can say that those shouldn't mr sleuth who's doing life plus ten have a chance to try to marshal from those applications what you have here are mentioning is an argument on appeal that the district judge having issued these subpoenas is bound to the knowledge of what the lawyer represented to modern term what to do what the  suggested a cooperation testimony to which they've been directed to have heightened scrutiny can constitute a distortion a fact finding process the district court has a responsibility to take action to assure that no such distortion takes place all right thank you