FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

SHAWNDALE BOYD,

Intervenor,

v.

DAMION SLEUGH,

Defendant-Appellant.

No. 17-10424

D.C. No.

4:14-cr-00168-

YGR-2

OPINION

Appeal from the United States District Court

for the Northern District of California

Yvonne Gonzalez Rogers, District Judge, Presiding

Argued and Submitted March 15, 2018

San Francisco, California

Filed July 23, 2018

Before: J. Clifford Wallace and Marsha S. Berzon, Circuit 

Judges, and Terrence Berg,

* District Judge.

Opinion by Judge Berg

 * The Honorable Terrence Berg, United States District Judge for the 

Eastern District of Michigan, sitting by designation.
2 UNITED STATES V. SLEUGH

SUMMARY**

Criminal Law

The panel affirmed the district court’s affirmance of a 

magistrate judge’s order denying Damion Sleugh’s motion 

to unseal codefendant Shawndale Boyd’s applications to 

issue subpoenas pursuant to Fed. R. Crim. P. 17(c).

The panel held that there is no presumption of public 

access under the First Amendment or common law that 

attaches to Rule 17(c) subpoena applications and their 

supporting materials; and that parties can only justify 

accessing sealed or in camera Rule 17(c) subpoenas, 

subpoena applications, and supporting documents by 

demonstrating a “special need.”

The panel held that Sleugh failed to demonstrate a 

“special need” for Boyd’s Rule 17(c) subpoena materials, 

and that there is a continuing need to seal them.

COUNSEL

Ethan A. Balogh (argued) and Dejan M. Gantar, Coleman & 

Balogh LLP, San Francisco, California, for DefendantAppellant.

Ellen V. Leonida (argued) and Todd M. Borden, Assistant 

Federal Public Defenders; Steven G. Kalar, Federal Public 

 ** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
UNITED STATES V. SLEUGH 3

Defender; Office of the Federal Public Defender, San 

Francisco, California; for Intervenor.

Merry Jean Chan (argued), Assistant United States Attorney; 

J. Douglas Wilson, Chief, Appellate Division; United States 

Attorney’s Office, San Francisco, California; for PlaintiffAppellee.

OPINION

BERG, District Judge:

Criminal defendants sometimes seek to obtain evidence 

by filing applications asking the court to issue subpoenas for 

the production of documents or witnesses pursuant to 

Federal Rule of Criminal Procedure 17(c). These 

applications, supported by an attorney’s affidavit explaining 

the reasons the evidence is necessary, are often filed ex parte 

and under seal. The issue on appeal in this case—a question 

of first impression for this Circuit—is whether one defendant 

in a criminal case can get access to the Rule 17(c) subpoena 

applications and supporting documents that were filed under 

seal by another defendant’s attorney in the same criminal 

case, either because of the presumptive right of public access 

to court records or upon a showing of special need. In view 

of the circumstances presented here, the district court 

properly denied the request for disclosure, and we affirm.

I. THE PARTIES, TRIAL, AND SLEUGH’S APPEAL

In March 2014, Damion Sleugh and Shawndale Boyd 

were indicted together on charges of (1) conspiring to 

distribute or to possess with intent to distribute marijuana, 

and (2) attempted possession with intent to distribute 

marijuana, each in violation of 21 U.S.C. §§ 846, 841(a)(1) 
4 UNITED STATES V. SLEUGH

& (b)(1)(D); (3) robbery affecting interstate commerce, in 

violation of 18 U.S.C. § 1951(a); (4) using or carrying a 

firearm during or in furtherance of a drug trafficking crime, 

in violation of 18 U.S.C. § 924(c); and (5) using a firearm 

during a drug trafficking crime and causing a murder, in 

violation of 18 U.S.C. § 924(j). Sleugh was also charged as 

being a felon in possession of a firearm, in violation of 18 

U.S.C. § 922(g)(1). The charges arose from a five-pound 

marijuana drug deal that Sleugh and Boyd arranged, which 

ended in the death of the man who was delivering the 

marijuana, Vincent Muzac.

While awaiting trial, Boyd filed ex parte applications 

with the court seeking several Rule 17(c) subpoenas. Boyd 

requested that these applications be filed under seal. The 

subpoenas sought records relating to multiple cell phone 

numbers from various service providers for the time period 

surrounding the date of the alleged crimes, along with some 

surveillance video from other sources. To support the Rule 

17(c) subpoena applications, and as required by local rule, 

Boyd’s defense attorney submitted affidavits describing the 

need for the records.1 Those affidavits were also filed ex 

parte and under seal.

On May 5, 2015, Boyd pleaded guilty to all counts 

except the murder charge. He agreed to cooperate with the 

 1 Sleugh has moved to include the Rule 17(c) subpoenas themselves, 

describing the kinds of records sought, as part of the public record of this 

appeal. Boyd and the Government did not object to this unsealing 

request. (Sleugh did not seek to disclose the applications and supporting 

affidavits setting out the reasons why these cell phone records were being 

sought by Boyd’s attorney.) We granted Sleugh’s motion and refer to 

the contents of the Rule 17(c) subpoenas herein. However, the 

applications for the subpoenas, including Boyd’s counsel’s affidavits,

remain under seal and, thus, at the center of the instant dispute.
UNITED STATES V. SLEUGH 5

government, and he testified against Sleugh at trial. Sleugh 

also testified.

Evidence was presented at trial that Sleugh and Boyd 

arranged to purchase five pounds of marijuana from Vincent 

Muzac—Boyd’s friend and co-worker—for $11,000. On the 

day of the deal, Boyd and Sleugh met at Sleugh’s house. 

They decided to drive separately, Boyd getting a ride from a 

neighborhood acquaintance known by the nick-name “Q,” 

and Sleugh, carrying the purchase money, driving a white 

Ford Escape that had been rented by Boyd’s mother. They 

met at a Walmart parking lot, where there was also a 

Starbucks. Boyd met Muzac at the Starbucks. Video 

evidence showed Boyd and Muzac leaving the Starbucks 

together. Once in the parking lot, Boyd walked by himself 

up to the white Ford Escape where Sleugh was waiting. 

Boyd spoke to Sleugh for a few seconds. Boyd then walked 

away and entered “Q’s” vehicle. Boyd and Q drove off, 

leaving the area. Muzac then walked to the Ford Escape 

where Sleugh was waiting and got inside. Four minutes 

later, the Ford Escape drove off without Muzac. Muzac’s 

body was later found lying in the parking lot next to only one 

pound of marijuana, and without the $11,000.

Boyd testified that, after he and Q left the Starbucks 

parking lot, he tried repeatedly to contact Muzac on his cell 

phone, with no success. Later that day, Boyd met Sleugh at 

Sleugh’s apartment, and asked Sleugh if everything was 

okay. Sleugh told Boyd that he and Muzac argued about the 

quality of the marijuana, that Muzac punched Sleugh in the 

mouth, and that Sleugh then shot Muzac in the arm. Boyd 

testified that Sleugh told him that after he shot Muzac, he 

pushed him out of the car and left.

Muzac ultimately died from his wounds. Boyd testified

that he did not become aware that Muzac had died until he 
6 UNITED STATES V. SLEUGH

and Sleugh were arrested on February 22, 2014 and charged 

in California state court with Muzac’s murder.2 Sleugh 

testified to a different version of events. He claimed that 

Q—the man who drove off with Boyd in another vehicle—

shot Muzac.

On July 17, 2015, the jury convicted Sleugh of all 

charges. Sleugh was sentenced on November 4, 2015 to life 

in prison. Boyd received a three-year prison sentence. 

Sleugh appealed his conviction. See United States v. 

Damion Sleugh, No. 15-10547 (9th Cir.). At Sleugh’s 

request, we stayed the briefing schedule of Sleugh’s direct 

appeal while he sought permission from the district court to 

unseal Boyd’s Rule 17(c) subpoena applications.

Sleugh argued to the district court that he needed access 

to Boyd’s Rule 17(c) subpoena applications for his appeal 

because of the “possibility” that Boyd testified 

inconsistently with Boyd’s counsel’s assertions in those 

applications. Sleugh did not specify any particular portion 

of Boyd’s testimony as problematic, and did not articulate 

how he thought counsel’s assertions in support of obtaining 

the cell phone and other records were likely to contain any 

inconsistent or otherwise impeaching statements. Sleugh 

reasoned that Boyd’s shift from defending the case to 

pleading guilty and testifying for the Government suggested 

that Boyd either misrepresented facts in the Rule 17(c) 

subpoena applications, or lied during his testimony. Put 

differently, Sleugh asserts that Boyd’s testimony on behalf 

of the Government must have been inconsistent with any 

defense theory Boyd used to support the Rule 17(c) 

subpoena applications. Standing on that assumption, Sleugh 

 2 When the instant federal charges were brought against Sleugh and 

Boyd, the state prosecutor dismissed the murder charges.
UNITED STATES V. SLEUGH 7

concluded that he could have used the statements of Boyd’s 

counsel in the Rule 17(c) subpoena applications to crossexamine Boyd at trial. Sleugh also contended that he had a 

right to access the Rule 17(c) subpoena applications as 

judicial records. The magistrate judge who originally 

granted Boyd’s Rule 17(c) subpoena applications denied 

Sleugh’s motion to unseal them. The district court affirmed.

When Sleugh appealed the district court’s decision 

denying disclosure, Boyd intervened, arguing that his Rule 

17(c) subpoena applications should remain under seal. 

Sleugh’s direct appeal of his conviction remains stayed, 

pending the instant appeal.

II. STANDARD OF REVIEW

A district court’s denial of a motion to unseal is reviewed 

for abuse of discretion. Ctr. for Auto Safety v. Chrysler Grp., 

LLC, 809 F.3d 1092, 1096 (9th Cir 2016). As part of that 

review, this court must first determine under de novo review 

whether the district court applied the correct legal rule. 

United States v. Hinkson, 585 F.3d 1247, 1261–62 (9th Cir. 

2009) (en banc). If the district court applied the wrong rule, 

the district court abused its discretion. Id. The application 

of the correct legal standard may nonetheless constitute an 

abuse of discretion if the application “was (1) illogical, 

(2) implausible, or (3) without support in inferences that may 

be drawn from the facts in the record.” Id. at 1262 

(quotations, citation, and footnote omitted).
8 UNITED STATES V. SLEUGH

III. ANALYSIS

a. No Presumptive Right of Public Access Attaches to 

Rule 17(c) Subpoena Applications

A criminal defendant has a constitutional right to 

compulsory process in building a defense. Pennsylvania v. 

Ritchie, 480 U.S. 39, 56 (1987) (holding that “criminal 

defendants have the right to the government’s assistance in 

compelling the attendance of favorable witnesses at trial and 

the right to put before a jury evidence that might influence 

the determination of guilt”).

While Rule 16 of the Federal Rules of Criminal 

Procedure generally governs discovery procedures in 

criminal cases, Rule 17(c) allows parties to a criminal trial 

to use the district court’s subpoena power to request 

materials or testimony from witnesses. Fed. R. Crim. P. 

17(c)(1). The Supreme Court has made it clear that a party 

seeking production of materials under a Rule 17(c) subpoena 

must demonstrate to the court “(1) relevancy; 

(2) admissibility; [and] (3) specificity.” United States v. 

Nixon, 418 U.S. 683, 700 (1974). If the grounds articulated 

in support of the subpoena request were made part of the 

public record, such a showing could reveal counsel’s trial 

strategies or defense theories to the opposing party, here, the 

government. This concern about revealing defense 

strategies to the government could also apply to revelations 

of such confidential theories to co-defendants, who may 

have adverse interests—the issue implicated in this appeal.

Recognizing this potential conundrum, some courts, like the 

district court here, have local rules that permit defendants to 

file their Rule 17(c) applications under seal for “good 

cause.” N.D. Cal. Crim. Local Rule 17-2(a)(1).
UNITED STATES V. SLEUGH 9

At the same time, filings under seal can interfere with 

open, public access to judicial records and documents. See 

Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978) 

(“It is clear that the courts of this country recognize a general 

right to inspect and copy public records and documents,

including judicial records and documents.” (footnotes 

omitted)). Shrouding the mechanics of a criminal case in 

secrecy places the public’s interest in a transparent judicial 

system at risk. See Press-Enter. Co. v. Superior Court, 

464 U.S. 501, 508 (1984) (“Press-Enterprise I”) (observing 

that open criminal proceedings “enhance both the basic 

fairness of the criminal trial and the appearance of fairness 

so essential to public confidence in the system”); see also 

Phoenix Newspapers, Inc. v. U.S. Dist. Court, 156 F.3d 940, 

946 (9th Cir. 1998) (observing that “[o]ne of the most 

enduring and exceptional aspects of Anglo-American justice 

is an open public trial”).

Sleugh argues that the district court should have granted 

him access to Boyd’s sealed Rule 17(c) subpoena requests 

because he has a presumptive right to access them under 

either the First Amendment or common law. However, 

“there is no right of access which attaches to all judicial 

proceedings, even all criminal proceedings.” Phoenix 

Newspapers, Inc., 156 F.3d at 946.

As to the First Amendment, the test to determine 

“whether a right of access attaches to a particular kind of 

hearing” is a two-part test “known as the ‘experience and 

logic’ test.” Phoenix Newspapers, Inc., 156 F.3d at 946. 

The test also applies to documents generated as part of a 

judicial proceeding, such as those here. Times Mirror Co. v. 

United States, 873 F.2d 1210, 1213 n.4 (9th Cir. 1989). “The 

‘experience’ prong of the test questions ‘whether the place 

and process have historically been open to the press and 
10 UNITED STATES V. SLEUGH

general public[.]’” Phoenix Newspapers, Inc., 156 F.3d at 

946. (quoting Press-Enter. Co. v. Superior Court, 478 U.S. 

1, 8 (1986) (“Press Enterprise II”). The “logic” element 

“inquires ‘whether public access plays a significant positive 

role in the functioning of the particular process in question.’”

Id. “If a proceeding fulfills both parts of the test, a qualified 

First Amendment right of access arises, to be overcome 

‘only by an overriding interest based on findings that closure 

is essential to preserve higher values and is narrowly tailored 

to serve that interest.’” Id.

As to the common law, there is “a strong presumption in 

favor of access to court records.” Ctr. for Auto Safety, 

809 F.3d at 1096. A party seeking to seal a judicial record 

can overcome this presumption only by showing a 

“compelling reason.” Id.

The issue here, then, is whether there is a presumptive 

right of public access to Rule 17(c) subpoena requests under 

either the First Amendment or common law. We have not 

addressed this issue before. The district court and the 

magistrate judge found guidance in the First Circuit’s 

decision, United States v. Kravetz, 706 F.3d 47 (1st Cir. 

2013), the only circuit court opinion squarely addressing this 

issue. Applying the reasoning of Kravetz, they held that 

Sleugh has no presumptive right to access Boyd’s sealed

Rule 17(c) subpoena requests.

In Kravetz, a journalist appealed from an order denying 

his request to unseal documents in a criminal case. 706 F.3d 

at 50. The documents included a sentencing memorandum 

as well as Rule 17(c) subpoena materials. Id. at 51, 53. The 

journalist argued that “the sealed documents were ‘judicial 

documents’ to which he had a right of access under the First 

Amendment and common law.” Id. at 52.
UNITED STATES V. SLEUGH 11

Applying the “experience and logic” test, the First 

Circuit rejected the journalist’s First Amendment argument. 

Id. at 53. Under the “experience” prong, the court noted, 

“there is no tradition of access to criminal discovery.” Id. at 

54. “To the contrary, ‘[d]iscovery, whether civil or criminal, 

is essentially a private process because the litigants and the 

courts assume that the sole purpose of discovery is to assist 

trial preparation.’” Id. (quoting United States v. Anderson,

799 F.2d 1438, 1441 (11th Cir. 1986)) (other citation 

omitted).

Applying the logic prong did not support a presumptive 

right of access either. The court reasoned that recognizing 

such a right would dangerously require criminal defense 

counsel “to prematurely expose trial strategy to public 

scrutiny.” Kravetz, 706 F.3d at 54. More broadly, public 

access would have a “deleterious effect . . . on the parties’ 

search for and exchange of information in the discovery 

process.” Id. (citation omitted). Accordingly, the court 

found “no First Amendment right of public access to the 

subpoenas or related materials.” Id. at 54.

Nor did the common law right of access apply. Id. at 54. 

The court reasoned that the common law right of access 

ordinarily attaches to “judicial records,” which “are those 

‘materials on which a court relies in determining the 

litigants’ substantive rights.’” Id. (quoting In re Providence 

Journal Co., Inc., 293 F.3d 1, 9–10 (1st Cir. 2002)). Rule 

17(c) materials, in contrast, “relate merely to the judge’s trial 

management role,” not the adjudication process. Id. at 54–

55 (citations omitted).

The Kravetz court held, then, that “no presumptive right 

of public access, based either in the common law or the First 

Amendment, attaches to the Rule 17(c) subpoenas or the 

related documents filed in connection with the underlying 
12 UNITED STATES V. SLEUGH

criminal prosecution[.]” Id. at 56. Instead, access is 

permitted “only upon a showing of special need.” Id.

We agree with Kravetz’s application of the First 

Amendment test. We also agree with Kravetz’s application 

of the common law test, which is consistent with our position 

on the somewhat related question of what showing must be 

made to seal discovery documents filed to support motions 

in civil cases. For example, in Center for Auto Safety, the 

district court sealed documents attached to the plaintiffs’ 

motion for preliminary injunction and to the defendant’s 

opposition brief. 809 F.3d at 1095. A third party intervened, 

seeking to unseal the documents. Id. The district court held 

that the motion for preliminary injunction was a nondispositive motion, and, therefore, the documents could be 

sealed merely upon a showing of “good cause.” Id. at 1095–

96.

Observing that “a motion for preliminary injunction 

frequently requires the court to address the merits of a case” 

and “often includes the presentation of substantial 

evidence,” Id. at 1099 (citing Stormans v. Selecky, 586 F.3d 

1109, 1127 (9th Cir. 2009)), we reversed and held that such 

documents should only be sealed for “compelling reasons,” 

Id. We observed how “[t]he focus in all of our cases is on 

whether the motion at issue is more than tangentially related 

to the underlying cause of action.” Id. at 1099. We 

explained that while motions for preliminary injunctions 

frequently are “more than tangentially related to the merits 

of a case,” so that documents supporting such motions 

should not be sealed except upon a showing of compelling 

reasons, “materials attached to a discovery motion unrelated 

to the merits of a case” need satisfy only the less exacting 

“good cause” standard.” Id. at 1097–99. In adopting the 

“more than tangentially related to the merits” approach, we 
UNITED STATES V. SLEUGH 13

cited favorably Kravetz’s test for determining if materials 

affect substantive rights, thereby triggering the common law 

right of access. Id. at 1100.

We agree with Kravetz that Rule 17(c) subpoenas, 

subpoena applications, and supporting affidavits, like civil 

discovery motions and supporting materials, are ordinarily 

only “tangentially related to the underlying cause of action.” 

Ctr. for Auto Safety, 809 F.3d at 1099. To be sure, the actual 

evidence gathered from the issuance of Rule 17(c) 

subpoenas could go to the merits of a case. The materials or 

witnesses sought could impact the verdict at trial, the 

ultimate issue in any criminal case. Also, to make an 

assessment of the relevance of the subpoenaed materials, the 

court will need to take into account the merits of any 

potential defense theories articulated in Rule 17(c) subpoena 

applications. See Nixon, 418 U.S. at 700.

But the applications and supporting affidavits for Rule 

17(c) subpoenas merely invoke the district court’s authority 

to compel the production of evidence. They are not evidence 

themselves. Such affidavits might sketch out possible 

defense theories that may or may not find support in actual 

evidence. As Kravetz observed, “‘[m]aterials submitted to a 

court for its consideration of a discovery motion are actually 

one step further removed in public concern from the trial 

process than the discovery materials themselves.’” Kravetz, 

706 F.3d at 54 (quoting Anderson v. Cryovac, Inc., 805 F.2d 

1, 13 (1st Cir. 1986)).

Because our law does not dictate when a party may 

unseal the applications and affidavits filed in support of Rule 

17(c) subpoena requests, and Kravetz sets forth a reasonable 

approach that is consistent with our precedent, we adopt that 

approach here. See Padilla-Ramirez v. Bible, 882 F.3d 826, 

836 (9th Cir. 2017) (“As a general rule, we decline to create 
14 UNITED STATES V. SLEUGH

a circuit split unless there is a compelling reason to do so.”). 

As such, we hold that there is no presumption of public 

access under the First Amendment or common law that 

attaches to Rule 17(c) subpoena applications and their 

supporting materials. Accordingly, parties can only justify 

accessing sealed or in camera Rule 17(c) subpoenas, 

subpoena applications, and supporting documents by 

demonstrating a “special need.” Kravetz, 706 F.3d at 56.

The next issue, then, is whether Sleugh showed a 

“special need” for Boyd’s Rule 17(c) subpoena materials. 

We hold that he did not. 

b. Sleugh failed to demonstrate a “special need” for 

Boyd’s Rule 17(c) subpoena materials.

Sleugh contends that his appellate counsel requires 

access to Boyd’s Rule 17(c) subpoena materials to explore 

possible issues for his direct appeal. While appellate counsel 

certainly has an obligation to scour the record for appealable 

issues, see Jones v. Barnes, 463 U.S. 745, 753 (1983), this 

duty does not automatically create a right of access to sealed 

materials containing a co-defendant’s defense theories.3

 3 As the magistrate judge here noted, the only case law Sleugh relies 

on does not support Sleugh’s argument. In Ellis v. United States, 

356 U.S. 674 (1958), the Court addressed only when leave to appeal may 

be denied to indigent defendants. The Court held that if defense counsel 

for an indigent defendant “is convinced, after conscientious 

investigation, that the appeal is frivolous, of course, he may ask to 

withdraw on that account.” Id. at 675. Then, “[i]f the court is satisfied 

that counsel has diligently investigated the possible grounds of appeal, 

and agrees with counsel’s evaluation of the case, then leave to withdraw 

may be allowed and leave to appeal may be denied.” Id. Thus, Ellis 

simply reminds us of the noncontroversial expectation that counsel 

diligently and conscientiously investigate grounds for appeal. Nothing 
UNITED STATES V. SLEUGH 15

Sleugh argues that he needs Boyd’s Rule 17(c) 

applications because they could prove that Boyd lied during 

trial. Again, Sleugh does not identify any portion of Boyd’s 

testimony which he believes is false (other than his 

statements regarding the government’s promises, discussed 

below), and Sleugh does not explain how the attorney’s 

affidavit detailing the relevance of the cell phone and other 

records sought in Boyd’s Rule 17(c) subpoenas could be 

used to show that Boyd’s trial testimony was false. Sleugh 

simply speculates that the assertions of counsel in Boyd’s 

Rule 17(c) subpoena applications must be different from 

Boyd’s trial testimony. Underlying Sleugh’s conclusion is, 

again, the assumption that Boyd’s testimony during trial was 

inconsistent with any defense theory that Boyd’s counsel 

proffered in the pre-trial Rule 17(c) subpoena applications.

Sleugh assumes too much. Boyd’s testimony against 

Sleugh—that Sleugh admitted to shooting Muzac and that 

Boyd was not present at the time of the shooting—were 

compelling defense theories for Boyd. Sleugh offers no 

reason for believing that Boyd’s counsel would have 

advanced a theory inconsistent with Boyd’s trial testimony 

in the Rule 17(c) subpoena applications. Nothing about the 

face of Boyd’s Rule 17(c) subpoena applications suggests 

that the affidavits in support of those applications would be 

likely to undercut Boyd’s testimony.4

 in Ellis requires the production of a co-defendant’s trial strategies or 

defense theories. Similarly, Hardy v. United States, 375 U.S. 277, 282

(1964), only held that appellate counsel for indigent defendants are 

entitled to a free copy of the entire trial transcript. This entitlement does 

not include a co-defendant’s sealed filings.

4 In response to Sleugh’s counsel’s request at oral argument, we 

reviewed in camera the sealed affidavits that Boyd’s counsel submitted 
16 UNITED STATES V. SLEUGH

Sleugh also argues that Boyd “lied” when he testified on 

redirect that the government made no promises to him in 

connection with his cooperation. Sleugh’s contention takes 

Boyd’s testimony out of its surrounding context. During 

cross-examination, Sleugh’s trial counsel asked Boyd if the 

government “promised [Boyd] that they would bring a 

motion for a downward departure . . . if the government feels 

that you have provided substantial assistance to the 

government through your cooperation.” Boyd answered that 

such a motion was “only a possibility. It’s not guaranteed. 

It’s subject to the government’s discretion” and that the 

judge is “the only person that will be sentencing me on this 

case[.]” Therefore, when Boyd later testified on redirect that 

the government did not promise him anything, Boyd clearly 

was referencing the fact that any government “promises” 

were not guaranteed.

Regardless, Sleugh does not explain how any potentially 

inconsistent testimony by Boyd creates a “special need” for 

Boyd’s Rule 17(c) subpoena applications. Even assuming 

the applications contain “impeachment material,” as Sleugh

alleges, they cannot affect this appeal because they were 

never in front of the jury, and we do not engage in de novo

fact-finding on appeal. Nor could Sleugh use the statements 

to bring a sufficiency of the evidence challenge to his 

conviction, because for such a challenge, “we [only] look at 

 

in support of the Rule 17(c) subpoena applications. Sleugh’s position, 

that they contain factual assertions contradicting Boyd’s trial testimony, 

is without merit. In situations where a reasonable and plausible basis is 

articulated suggesting that factual assertions attributable to a witness in 

a Rule 17(c) application contradict that witness’s in-court testimony, a 

district court could also conduct such an in camera review to protect the 

integrity of the process.
UNITED STATES V. SLEUGH 17

the evidence actually presented at trial.” United States v. 

Sayakhom, 186 F.3d 928, 942 n.7 (9th Cir. 1999).

Further, the Rule 17(c) subpoena applications pre-dated 

the plea agreement and Boyd’s cooperation, and the 

subpoenas themselves mainly sought cell phone records and 

some surveillance video. Even if Boyd were caught in a lie 

about whether his plea agreement involved certain promises 

by the government, such a misstatement would not 

necessarily create an entitlement for Sleugh to examine the 

sealed affidavits proffered by Boyd’s attorney to support the 

Rule 17(c) subpoenas for records.

We hold that Sleugh failed to present a “special need” to 

access Boyd’s sealed Rule 17(c) subpoena applications.5

c. There is a continued need to seal Boyd’s Rule 17(c) 

subpoena materials.

Alternatively, Sleugh argues that there is no reason to 

continue sealing Boyd’s Rule 17(c) subpoena materials. He 

reasons that Boyd pleaded guilty, testified, and was 

sentenced and released. Therefore, according to Sleugh, 

revealing the Rule 17(c) subpoena applications poses no risk 

to Boyd.

Sleugh has a point, to an extent. There is some support 

for the position that these subpoena applications should not 

 5 Because we hold that Sleugh has failed to demonstrate a “special 

need” for Boyd’s Rule 17(c) subpoena application materials, we need 

not address whether Boyd’s counsel waived any attorney-work product 

protection to those materials by filing them with the court under seal, or 

whether attorneys’ representations as to defense theories in affidavits 

supporting subpoena applications could be attributable to the client for 

impeachment or other purposes.
18 UNITED STATES V. SLEUGH

be sealed forever. Regarding transcripts of sealed trial 

proceedings, we require that such transcripts “must be 

released when the danger of prejudice has passed.” Phoenix 

Newspapers, Inc., 156 F.3d at 948 (internal quotation marks 

omitted). If there is no longer any need to seal the Rule 17(c) 

subpoena materials at issue here, then perhaps they should 

be unsealed.

There are two problems with applying this rule here, 

though. First, unlike the trial transcripts at issue in Phoenix 

Newspapers, which we held were entitled to a presumption 

of public access under the First Amendment “experience and 

logic” test, Rule 17(c) subpoena applications do not have a 

history of being available to the public; such applications do 

not constitute evidence, and they do not determine the merits 

of a criminal case. Accordingly, it makes sense that it is 

harder to unseal Rule 17(c) subpoena applications than trial 

transcripts.

Second, in this case there is a continuing need to seal 

these Rule 17(c) subpoena applications. Boyd’s plea deal 

and sentence resolved only his federal charges, but Boyd was 

initially charged with murder in California state court.6 That 

charge was dismissed, but the state is not precluded from 

refiling that charge against Boyd. See Berardi v. Superior 

Court, 160 Cal. App. 4th 210, 218 (2008) (observing that 

Cal. Penal Code § 1387 “generally provides a ‘two 

dismissal’ rule” precluding prosecutors from refiling certain 

charges only after the same charges have been dismissed 

twice already “according to the provisions of that statute”). 

 6 We grant Boyd’s request for judicial notice of his state court 

charges. Fed. R. Evid. 201(d); Rosales-Martinez v. Palmer, 753 F.3d 

890, 894 (9th Cir. 2014) (“It is well established that we may take judicial 

notice of judicial proceedings in other courts.”).
UNITED STATES V. SLEUGH 19

Because there is no statute of limitations for murder in 

California, the specter of that charge continues to loom over 

Boyd. See Cal. Penal Code § 799(a). Also, there is a 

possibility that the federal government could pursue the 

murder charge against Boyd should he breach his plea 

agreement.

Unsealing Boyd’s Rule 17(c) subpoena applications 

could reveal Boyd’s defense theories to the state and federal 

governments for any future trial. The prospect of 

undermining the confidentiality of Boyd’s defense strategies 

justified sealing these materials in the first place, which 

Sleugh does not contest. It is no different now.7

IV. CONCLUSION

For these reasons, we AFFIRM the district court’s 

affirmance of the magistrate judge’s order denying Sleugh’s 

motion to unseal Boyd’s Rule 17(c) subpoena applications.

 7 This is not to say that all Rule 17(c) subpoena applications may or 

should remain under seal forever. There may be instances when there is 

no longer any need to protect a defendant’s theories of defense (e.g., 

upon the defendant’s death, or when the statute of limitations has run on 

all charges). Boyd’s situation is unique because, as long as he lives, he 

will always face the risk of another state murder charge. Accordingly, 

we need not resolve whether all Rule 17(c) subpoena applications should

remain under seal in perpetuity.