FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

In re: COPLEY PRESS, INC., 

Intervenor-appellee.

No. 07-72143

UNITED STATES OF AMERICA, D.C. No.  Plaintiff-Appellant, CR-97-02520-LAB

v. OPINION

ISMAEL HIGUERA-GUERRERO,

Defendant. 

Appeal from the United States District Court

for the Southern District of California

Larry A. Burns, District Judge, Presiding

Argued and Submitted

August 6, 2007—Pasadena, California

Filed March 4, 2008

Before: Alex Kozinski, Chief Judge, Dorothy W. Nelson and

Johnnie B. Rawlinson, Circuit Judges.

Opinion by Chief Judge Kozinski

2001
COUNSEL

Vijay Shanker, Attorney, U.S. Department of Justice, Washington, DC; Karen P. Hewitt, U.S. Attorney and Laura E.

Duffy, Assistant U.S. Attorney, Los Angeles, California, for

the plaintiff-appellant. 

Guylyn R. Cummins, Harold W. Fuson, Jr., Judith L. Fanshaw and Scott A. Wahrenbrock, Sheppard, Mullin, Richter &

Hampton LLP, San Diego, California, for the intervenorappellee. 

OPINION

KOZINSKI, Chief Judge: 

We consider the district court’s order unsealing the transcript of a plea colloquy, a plea agreement’s “cooperation

2004 IN RE COPLEY PRESS, INC.
addendum” and the documents supporting a motion to seal the

plea proceedings. 

Facts

Ismael Higuera-Guerrero ran a drug cartel in Mexico along

with Javier Arrellano-Felix and Arturo Villareal-Heredia.

After U.S. authorities captured the three men, HigueraGuerrero agreed to plead guilty and to cooperate with the government, but the others, initially, declined.1

 The government

and Higuera-Guerrero signed a plea agreement containing a

“cooperation addendum” in which Higuera-Guerrero pledged

to help the government build its case against the cartel. The

government filed the plea agreement with the district court,

along with a motion to seal the plea “proceedings.” The government argued that publicizing Higuera-Guerrero’s plea

would endanger him and others. Higuera-Guerrero joined the

government’s motion to seal. 

The district court granted the government’s motion to seal

while the government took steps to reduce the danger to

Higuera-Guerrero and others. After those steps were taken,

the district court unsealed a redacted transcript of the plea colloquy and all of the plea agreement except the cooperation

addendum. This got the attention of Copley Press, Inc., which

intervened and asked that the court unseal all the other documents the government had filed in support of its motion to

seal, and the transcripts of the hearings on that motion. The

district court ordered everything unsealed except the names,

birthdates and addresses of the endangered people, but stayed

its order while the government sought review. HigueraGuerrero’s former partners join Copley Press in opposing the

government’s petition, but do not claim that sealing the documents has impeded their defense. 

1After we heard oral argument, Higuera-Guerrero’s former partners pled

guilty. 

IN RE COPLEY PRESS, INC. 2005
Jurisdiction

Under the collateral order doctrine, we have jurisdiction

over a “narrow class of decisions that do not terminate the litigation, but must, in the interest of achieving a healthy legal

system, nonetheless be treated as final.” Digital Equip. Corp.

v. Desktop Direct, Inc., 511 U.S. 863, 867 (1994) (internal

quotation marks and citation omitted). In order to satisfy this

exacting standard, an order must “[1] conclusively determine

the disputed question, [2] resolve an important issue completely separate from the merits of the action, and [3] be

effectively unreviewable on appeal from a final judgment.”

Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978)

(bracketed numbers added). All three Coopers &

Lybrand factors are present here. 

Secrecy is a one-way street: Once information is published,

it cannot be made secret again. An order to unseal thus “conclusively determine[s]” that the information will be public. Id.

For the same reason, such an order is “effectively unreviewable on appeal from a final judgment.” Id. This case is distinguishable from United States v. Hickey, 185 F.3d 1064 (9th

Cir. 1999), where we concluded that we lacked jurisdiction to

hear the government’s appeal of an order sealing defendants’

financial affidavits. That order did not conclusively determine

the affidavits’ secrecy because the government could file a

renewed motion to unseal after the trial was over. Id. at 1067.

Whether the documents are unsealed is an issue “completely separate” from the government’s criminal case against

Higuera-Guerrero. Coopers & Lybrand, 437 U.S. at 468. The

order to unseal won’t affect Higuera-Guerrero’s defense

because he’s already pled guilty and, in any event, joined the

motion to seal. United States v. Hitchcock, 992 F.2d 236 (9th

Cir. 1993) (per curiam), involved an order that was entwined

with the merits: If defendants submitted the affidavits

unsealed, the government could use them at trial. Id. at 238.

Therefore, the district court’s order wasn’t completely sepa2006 IN RE COPLEY PRESS, INC.
rate from the merits and would have been reviewable on

appeal from a final judgment of conviction. Id. 

While the government brought this case as a petition for a

writ of mandamus, we conclude that we have jurisdiction

under the collateral order doctrine, and so will treat this case

as an appeal under 28 U.S.C. § 1291. The clerk is directed to

alter the docket accordingly. 

Merits

We must first consider whether the First Amendment gives

the public a right to access these documents. If we answer in

the affirmative as to any of the documents in question, we

must then determine whether any such right is overcome by

a compelling governmental interest. Finally, we consider

whether the common law gives the public a right of access

separate from the First Amendment.

[1] 1.a. Our case law gives the public a qualified First

Amendment right to access three types of documents at issue

here: (1) the cooperation addendum to Higuera-Guerrero’s

plea agreement, Appendix to Petition for a Writ of Mandamus

(“App.”) tab E; (2) the government’s motion, and the memoranda filed in support of it, to seal the plea agreement, App.

tab A, p.1; tab B; tab H pp.1-3; tab L, and (3) the district

court’s orders granting the government’s motion, App. tab C;

tab I. Oregonian Publ’ng Co. v. U.S. Dist. Court, 920 F.2d

1462, 1464 (9th Cir. 1990). As to these documents, the only

question is whether the right to access is overcome by a compelling governmental interest, a question we consider below.

See pp.2011-2012 infra. 

[2] b. We have not yet decided whether the public has a

First Amendment right to access a plea colloquy transcript. To

answer that question, we consider both “historical experience”

and “logic,” Times Mirror Co. v. United States, 873 F.2d

1210, 1213 (9th Cir. 1989), though logic alone, even without

IN RE COPLEY PRESS, INC. 2007
experience, may be enough to establish the right. See Seattle

Times Co. v. U.S. Dist. Court, 845 F.2d 1513, 1516, 1517 (9th

Cir. 1988) (even without an “unbroken history of public

access,” the First Amendment right exists if “public scrutiny”

would “benefit” the proceedings); see also Phoenix Newspapers, Inc. v. U.S. Dist. Court, 156 F.3d 940, 948 (9th Cir.

1998) (“Even if the historic right of . . . access were not dispositive, the ‘logic’ prong of the [test] would be.”).2

[3] Every circuit to consider the issue has concluded that

logic favors public access to plea colloquy transcripts. See

United States v. Danovaro, 877 F.2d 583, 589 (7th Cir. 1989);

In re Washington Post Co., 807 F.2d 383, 390 (4th Cir. 1986);

see also Washington Post v. Robinson, 935 F.2d 282, 288

(D.C. Cir. 1991) (right of access to “plea agreements and

related documents”); United States v. Haller, 837 F.2d 84,

86-87 (2d Cir. 1988) (right of access to “plea hearings”).

“Public access to [plea colloquy transcripts] reveals the basis

on which society imposes punishment,” Danovaro, 877 F.2d

at 589, and also “serves the important function of discouraging either the prosecutor or the court from engaging in arbitrary or wrongful conduct,” In re Washington Post, 807 F.2d

at 389; see also Haller, 837 F.2d at 87. Moreover, the

Supreme Court has held that the public is entitled to attend

criminal trials, Globe Newspaper Co. v. Superior Court, 457

U.S. 596, 605-06 (1982), so it stands to reason that plea colloquies, which “serve[ ] as a substitute for a trial,” should also

be open to the public. In re Washington Post, 807 F.2d at 389;

see Oregonian, 920 F.2d at 1465 (this reasoning supports the

public’s right to access plea agreements). We agree with the

other circuits to consider the matter that the public has a qual2Though our cases refer to this as the “experience and logic” test, it’s

clear that these are not separate prongs to be weighed against each other.

Where access has traditionally been granted to the public without serious

adverse consequences, logic necessarily follows. It is only where access

has traditionally not been granted that we look to logic. If logic favors disclosure in such circumstances, it is necessarily dispositive. 

2008 IN RE COPLEY PRESS, INC.
ified First Amendment right to access Higuera-Guerrero’s

plea colloquy transcript. App. tab F from p.11, line 19 to end.

We consider below whether this right is overcome by a compelling governmental interest. See pp.2011-12 infra. 

[4] c. Also at issue here are the transcripts of three hearings on the government’s motion to seal. App. tab F from p.1

to p.11, line 18; tab K; tab N. We have not yet decided

whether the public has a First Amendment right to access

such transcripts, so we again apply the experience and logic

test. See pp.2007-2009 supra. 

[5] There’s no historical experience of public access to

these hearings or to their transcripts because the hearings

didn’t exist until quite recently. They were invented twentyfive years ago in United States v. Brooklier, 685 F.2d 1162,

1167-68 (9th Cir. 1982), as part of our circuit’s procedure for

sealing criminal proceedings. See Oregonian, 920 F.2d at

1466 (to seal a plea agreement, the district court must follow

the procedure set forth in Brooklier).3 Because the hearings

are “entirely novel,” we have no historical experience of public access to them. United States v. El-Sayegh, 131 F.3d 158,

161 (D.C. Cir. 1997). 

[6] Even without historical experience, logic requires that

at least part of these hearings be open to the public, because

one of their purposes is to give the public an opportunity to

be heard. See Phoenix Newspapers, 156 F.3d at 949 (the hearings give the “public and press” an “opportunity to object or

offer alternatives” to closure); see also United States v. Biagon, No. 06-10479, slip op. at 16437, 16444 (9th Cir. Dec. 17,

2007) (procedure to close defendant’s allocution). If the public has a right to attend the hearings, it necessarily follows that

it is entitled to read the transcript of those parts of the proceeding that were public. See Press-Enterprise Co. v. Supe3We do not address whether the district court here complied with these

procedural requirements because the parties haven’t briefed the issue. 

IN RE COPLEY PRESS, INC. 2009
rior Court (Press-Enterprise II), 478 U.S. 1, 12-13 (1986).

We conclude, therefore, that the public has a qualified right

to read the transcripts of those portions of the hearings on the

motion to seal that were open to the public. App. tab F from

p.1 to p.7, line 14; tab N from p.1 to p.6, line 17; tab N from

p.15, line 4 to end. We consider below whether this right is

overcome by a compelling governmental interest. See

pp.2011-2012 infra. 

[7] But the public doesn’t have the right to attend such

hearings in their entirety. Here, for instance, the district court

quite sensibly closed portions of the hearings so it could hear

in private the government’s explanation of how unsealing the

plea would endanger Higuera-Guerrero and others. It would

be highly illogical to give the public a right to read the transcripts of these portions of the hearings. The transcripts will

inevitably contain not only the facts the parties hope to keep

secret, but also their reasons for doing so, which are likely to

be just as private as the facts at issue. It’s rarely possible to

justify one secret without telling other secrets. So by publishing these transcripts, we would force litigants to take a great

risk: If they move to seal and lose, they make public all the

additional secrets they have revealed to us in making a case

for sealing the proceedings. 

[8] Opening these transcripts to the public would handicap

prosecutors in particular. To convince us to close a criminal

proceeding, prosecutors often must tell us about ongoing

investigations. That information is extremely sensitive, as we

have recognized in holding that the public is not entitled to

read, prior to indictment, affidavits supporting search warrants. Times Mirror, 873 F.2d at 1213. Openness here would

likewise “frustrate criminal investigations and thereby jeopardize the integrity of the search for truth that is so critical to

the fair administration of justice.” Id. What’s more, disclosure

of this type of information would limit the ability of prosecutors to offer plea bargains to cooperating witnesses who reasonably fear retaliation from those they inform against. If the

2010 IN RE COPLEY PRESS, INC.
reasons for sealing pleas were presumptively public, prosecutors couldn’t promise confidentiality in exchange for cooperation. 

[9] We conclude that the public has no First Amendment

right to access the transcripts of the closed portions of the

hearings on the motions to seal. App. tab F from p.7, line 15

to p.11, line 18; tab K; tab N from p.6, line 18 to p.15, line

4. 

[10] d. The last group of documents at issue here are the

declarations and documentation appended to the government’s motion to seal and to the memoranda supporting that

motion.4 Our analysis of these documents is the same as our

analysis of the closed portions of the hearings. See

pp.2010-2011 supra. There is no historical experience of

access to such documents, and logic militates against granting

such access. Id. The public therefore has no First Amendment

right to read them. 

2. To sum up: The public has a qualified right to access

the plea agreement’s cooperation addendum, see p.2007

supra, the government’s motion to seal and the memoranda

supporting it, see id., the district court’s orders granting the

government’s request, see id., the transcript of HigueraGuerrero’s plea colloquy, see pp.2007-2009 supra, and the

transcripts of those portions of the hearings on the motion to

seal that were open to the public, see pp.2009-2010 supra.

This qualified right can be overcome if “(1) closure serves a

compelling interest; (2) there is a substantial probability that,

in the absence of closure, this compelling interest would be

4These are the declarations and documentation appended to the government’s March 16 motion to seal, App. tab A from p.2 to end; the declarations appended to the government’s April 13 motion to extend the sealing

order, App. tab H from p.4 to end; and the entirety of the government’s

letter of April 23 requesting redactions to the unsealed version of the plea

colloquy transcript, App. tab J. 

IN RE COPLEY PRESS, INC. 2011
harmed; and (3) there are no alternatives to closure that would

adequately protect the compelling interest.” Oregonian, 920

F.2d at 1466. Here, the district court at first found that the

government’s interest in the safety of Higuera-Guerrero and

others was compelling; at the time, closure was the only way

to protect them. Later, after the government took steps to

reduce the danger, the district court found that “compelling

reasons no longer exist[ed]” for sealing these documents and

ordered them unsealed. We review that order for abuse of discretion. Pintos v. Pac. Creditors Ass’n, 504 F.3d 792, 802

(9th Cir. 2007). 

[11] The district court did not abuse its discretion in unsealing those parts of the documents that describe HigueraGuerrero’s cooperation. Though the government’s interest in

keeping Higuera-Guerrero and others safe is “compelling,”

Oregonian also requires the government to show a “substantial probability that, in the absence of closure, this compelling

interest would be harmed.” Oregonian, 920 F.2d at 1466. The

district court found that after the government took steps to

ensure these persons’ safety, there was no longer a substantial

probability that revealing Higuera-Guerrero’s cooperation

would endanger them. The court didn’t clearly err in so finding and, in light of that finding, its decision to unseal these

portions of the documents was not an abuse of discretion. 

[12] The district court did abuse its discretion, however, in

unsealing those parts of the documents that concern the other

people in danger. As we explain in a sealed addendum to this

opinion,5 there remains a substantial probability that unsealing

the information contained therein will endanger these people.

The district court clearly erred in finding otherwise, and we

remand for it to allow the government to redact these documents in accordance with the sealed addendum. 

5The sealed addendum will be made available to the government, to the

district court, to our colleagues on this court and to the Supreme Court,

should it choose to review our opinion. 

2012 IN RE COPLEY PRESS, INC.
3. In addition to the public’s First Amendment right, the

public also has a “common-law” right “to inspect and copy

public records and documents,” including the documents at

issue here. Nixon v. Warner Commc’ns, Inc., 435 U.S. 589,

597 (1978). However, this right “is not absolute,” id. at 598,

and doesn’t apply to “documents which have traditionally

been kept secret for important policy reasons.” Times Mirror,

873 F.2d at 1219. 

As discussed above, there are good reasons to keep secret

the documents filed in connection with motions to seal.6See

pp.2010-2011 supra. We agree with the D.C. Circuit that “affording public scrutiny” to such documents “is logically

incompatible with the nature of the proceedings,” and we join

that circuit in holding that the public has no common-law

right to read the documents filed in connection with a motion

to seal. El-Sayegh, 131 F.3d at 162. 

We need not consider whether the common law gives the

public a right to access the remaining documents because,

even if it does, the government’s interest in the safety of

Higuera-Guerrero and others is “sufficiently important” to

overcome the common-law “presumption in favor of access.”

San Jose Mercury News, Inc. v. U.S. Dist. Court, 187 F.3d

1096, 1102 (9th Cir. 1999). 

* * *

The public has no right to access the declarations and documentation appended to the government’s March 16 motion to

seal, App. tab A from p.2 to end; the declarations appended

to the government’s April 13 motion to extend the sealing

order, App. tab H from p.4 to end; the government’s letter of

6We refer here to the transcripts of the closed portions of the hearings

on the motions to seal, see p.2010 supra, and to the declarations and documentation appended to the government’s motion to seal and to the memoranda supporting that motion, see p.2011 supra. 

IN RE COPLEY PRESS, INC. 2013
April 23, requesting redactions to the plea colloquy transcript,

App. tab J; and the transcripts of the closed portions of the

hearings on the motion to seal, App. tab F from p.7, line 15

to p.11, line 18; tab K; tab N from p.6, line 18 to p.15, line

4. We vacate the district court’s order unsealing these documents, and we instruct the district court to maintain them

under seal. 

The public does have a First Amendment right to access the

cooperation addendum to Higuera-Guerrero’s plea agreement,

the unredacted transcript of Higuera-Guerrero’s plea colloquy, the transcripts of the public portions of the hearings on

the motions to seal and the government’s sealed May 21

memorandum. Though this right can be overcome by a compelling interest in some circumstances, the district court did

not abuse its discretion in unsealing the portions of these documents that describe Higuera-Guerrero’s cooperation. However, the district court did abuse its discretion in unsealing

those portions that describe the other people in danger.

AFFIRMED in part, VACATED in part and

REMANDED. DOCKET AMENDED.

2014 IN RE COPLEY PRESS, INC.