UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
United States of America
v. Case No. 24-cr-19-PB-TSM-1 Opinion No. 2024 DNH 099 Marc Jacques
ORDER
Marc Jacques was convicted of one count of distribution of child
pornography and was sentenced to 60 months in prison. Prior to his
sentencing, Jacques’ counsel attached various exhibits in support of his
sentencing memorandum. See Doc. 16. His counsel at the time submitted
three exhibits under seal but did not attempt to seal the remaining
documents. Jacques’ new counsel has filed a motion asking the court to
completely seal six of the previously unsealed exhibits on the grounds that
they disclose sensitive personal information of third parties. See Doc. 41. The
exhibits in question are letters submitted by third parties on the defendant’s
behalf as well as a letter written by the defendant himself. See Doc. 16-3;
Doc. 16-4; Doc. 16-5; Doc. 16-6; Doc. 16-7; Doc. 16-8. The government has filed
a partial objection opposing a blanket sealing order but agreeing that
targeted redactions are warranted. See Doc. 45. I. Legal Standard
“Courts have long recognized ‘that public monitoring of the judicial
system fosters the important values of quality, honesty, and respect for our
legal system.’” United States v. Kravetz, 706 F.3d 47, 52 (1st Cir. 2013)
(quoting In re Providence Journal, 293 F.3d 1, 9 (1st Cir. 2002)). Courts must
“carefully balance the presumptive public right of access against the
competing interests that are at stake in a particular case, keeping in mind
that only the most compelling reasons can justify non-disclosure of judicial
records that come within the scope of the common-law right of access.” Id. at
59 (internal quotation marks omitted). To overcome this presumption, the
party seeking to seal documents must “demonstrate significant
countervailing interests[.]” Bradford & Bigelow, Inc. v. Richardson, 109 F.
Supp. 3d 445, 448 (D. Mass. 2015).
The parties agree that the relevant legal standard here comes from
United States v. Kravetz, in which the First Circuit Court of Appeals
addressed whether the common law right of access applied to letters attached
as exhibits to sentencing memoranda. 706 F.3d at 57. While the court noted
that such letters “are often unguarded and informal, and [. . .] frequently
emotion-laden,” the court held that they were judicial documents to which the
presumptive right of public access attached because their purpose was to
“serve as an evidentiary basis for the defendant’s arguments for leniency.” Id.
2 (cleaned up). “[R]elevant documents which are submitted to, and accepted by,
a court of competent jurisdiction in the course of adjudicatory proceedings,
become documents to which the presumption of public access applies.” FTC v.
Standard Fin. Mgmt. Corp., 830 F.2d 404, 409 (1st Cir. 1987). Documents
which a judge “should have considered, but did not, are just as deserving of
disclosure as those that actually entered into the judge’s decision.” Lugosch v.
Pyramid Co. of Onondaga, 435 F.3d 110, 123 (2d Cir. 2006) (internal citations
omitted) (emphasis in original).
As relevant here, third-party privacy concerns may outweigh the
presumption of public access where “the balance of interests justifies
withholding from the public the identity of the authors, or the entire content
of each of the relevant letters.” Kravetz, 706 F.3d at 62. Where the public’s
right of access is at odds with third-party privacy rights, “it is proper for the
district court, after weighing competing interests, to edit and redact a judicial
document in order to allow access to appropriate portions of the document.”
Id. (quoting United States v. Amodeo, 44 F.3d 141, 147 (2d Cir. 1995)).
II. Application Jacques asks the court to completely seal six of the exhibits attached to
his sentencing memorandum on the grounds that third-party privacy
concerns outweigh the common law presumption of public access. I disagree.
3 The letters contain information about the defendant’s family situation,
medical and personal information about the defendant’s children, as well as
personal identifying information about the third-party letter writers. Jacques
claims this information is of “no legitimate incremental value to the public.”
Doc. 41 at 2. Further, Jacques contends that the “intense publicity” around
his case warrants heightened privacy protection, particularly given safety
concerns involving two of the letter writers. Id. at 1, 2. One of the writers was
“assured by former counsel that her letter would be filed under seal.” Id. at 2.
The circumstances here are insufficient to overcome the presumption of
public access for three principal reasons. First, these letters were offered to
support Jacques’ argument for a downward departure or variance. See Doc.
16 at 16-18. While his family circumstances were not ultimately the basis for
the court’s decision to grant a variance, the court referred to his family
situation while issuing its sentence. Doc. 44 at 47-48; see Roy v. FedEx
Ground Package Sys., Inc., No. 3:17-CV-30116-KAR, 2024 WL 2025763, at *2
(D. Mass. May 7, 2024) (“[W]hen documents are filed in connection with a
substantive motion, a court cannot freely seal documents even if the court did
not actually rely on those documents to rule on the motion.”).
Second, Jacques’ argument in favor of privacy loses persuasive effect in
light of his earlier decision to publish the information he seeks to conceal. See
Globe Newspaper Co. v. Pokaski, 868 F.2d 497, 506 n.17 (1st Cir. 1989)
4 (“[P]rior publicity weighs strongly against sealing.”). At his public sentencing
hearing, Jacques disclosed much of the personal family information he now
asks the court to seal. See Doc. 44 at 38, 39, 41. Nor can it be argued that his
attorney did not know how to preemptively protect private information;
indeed, prior counsel filed other documents under seal with the sentencing
memorandum. 1 See Doc. 16-1; Doc. 16-2; Doc. 16-9. While Jacques claims
that the personal identifying information contained in the letters violates
Federal Rule of Criminal Procedure 49.1, “responsibility for redaction lies
with the person making the filing.” Fed. R. Crim. P. 49.1 advisory
committee’s note. His prior counsel neglected to redact the city and state of
the home addresses of the letter writers in accordance with this rule.
Third, Jacques’ argument that one of the third parties submitted a
letter on the understanding that it would remain private is unavailing
because the First Circuit expressly rejected such an argument in Kravetz.
See 706 F.3d at 61 (“It is self-evident that counsel may not make any such
binding assurances about how a court would view such documents.”).
One of the letters is from Jacques’ therapist. See Doc. 16-7. Jacques
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
United States of America
v. Case No. 24-cr-19-PB-TSM-1 Opinion No. 2024 DNH 099 Marc Jacques
ORDER
Marc Jacques was convicted of one count of distribution of child
pornography and was sentenced to 60 months in prison. Prior to his
sentencing, Jacques’ counsel attached various exhibits in support of his
sentencing memorandum. See Doc. 16. His counsel at the time submitted
three exhibits under seal but did not attempt to seal the remaining
documents. Jacques’ new counsel has filed a motion asking the court to
completely seal six of the previously unsealed exhibits on the grounds that
they disclose sensitive personal information of third parties. See Doc. 41. The
exhibits in question are letters submitted by third parties on the defendant’s
behalf as well as a letter written by the defendant himself. See Doc. 16-3;
Doc. 16-4; Doc. 16-5; Doc. 16-6; Doc. 16-7; Doc. 16-8. The government has filed
a partial objection opposing a blanket sealing order but agreeing that
targeted redactions are warranted. See Doc. 45. I. Legal Standard
“Courts have long recognized ‘that public monitoring of the judicial
system fosters the important values of quality, honesty, and respect for our
legal system.’” United States v. Kravetz, 706 F.3d 47, 52 (1st Cir. 2013)
(quoting In re Providence Journal, 293 F.3d 1, 9 (1st Cir. 2002)). Courts must
“carefully balance the presumptive public right of access against the
competing interests that are at stake in a particular case, keeping in mind
that only the most compelling reasons can justify non-disclosure of judicial
records that come within the scope of the common-law right of access.” Id. at
59 (internal quotation marks omitted). To overcome this presumption, the
party seeking to seal documents must “demonstrate significant
countervailing interests[.]” Bradford & Bigelow, Inc. v. Richardson, 109 F.
Supp. 3d 445, 448 (D. Mass. 2015).
The parties agree that the relevant legal standard here comes from
United States v. Kravetz, in which the First Circuit Court of Appeals
addressed whether the common law right of access applied to letters attached
as exhibits to sentencing memoranda. 706 F.3d at 57. While the court noted
that such letters “are often unguarded and informal, and [. . .] frequently
emotion-laden,” the court held that they were judicial documents to which the
presumptive right of public access attached because their purpose was to
“serve as an evidentiary basis for the defendant’s arguments for leniency.” Id.
2 (cleaned up). “[R]elevant documents which are submitted to, and accepted by,
a court of competent jurisdiction in the course of adjudicatory proceedings,
become documents to which the presumption of public access applies.” FTC v.
Standard Fin. Mgmt. Corp., 830 F.2d 404, 409 (1st Cir. 1987). Documents
which a judge “should have considered, but did not, are just as deserving of
disclosure as those that actually entered into the judge’s decision.” Lugosch v.
Pyramid Co. of Onondaga, 435 F.3d 110, 123 (2d Cir. 2006) (internal citations
omitted) (emphasis in original).
As relevant here, third-party privacy concerns may outweigh the
presumption of public access where “the balance of interests justifies
withholding from the public the identity of the authors, or the entire content
of each of the relevant letters.” Kravetz, 706 F.3d at 62. Where the public’s
right of access is at odds with third-party privacy rights, “it is proper for the
district court, after weighing competing interests, to edit and redact a judicial
document in order to allow access to appropriate portions of the document.”
Id. (quoting United States v. Amodeo, 44 F.3d 141, 147 (2d Cir. 1995)).
II. Application Jacques asks the court to completely seal six of the exhibits attached to
his sentencing memorandum on the grounds that third-party privacy
concerns outweigh the common law presumption of public access. I disagree.
3 The letters contain information about the defendant’s family situation,
medical and personal information about the defendant’s children, as well as
personal identifying information about the third-party letter writers. Jacques
claims this information is of “no legitimate incremental value to the public.”
Doc. 41 at 2. Further, Jacques contends that the “intense publicity” around
his case warrants heightened privacy protection, particularly given safety
concerns involving two of the letter writers. Id. at 1, 2. One of the writers was
“assured by former counsel that her letter would be filed under seal.” Id. at 2.
The circumstances here are insufficient to overcome the presumption of
public access for three principal reasons. First, these letters were offered to
support Jacques’ argument for a downward departure or variance. See Doc.
16 at 16-18. While his family circumstances were not ultimately the basis for
the court’s decision to grant a variance, the court referred to his family
situation while issuing its sentence. Doc. 44 at 47-48; see Roy v. FedEx
Ground Package Sys., Inc., No. 3:17-CV-30116-KAR, 2024 WL 2025763, at *2
(D. Mass. May 7, 2024) (“[W]hen documents are filed in connection with a
substantive motion, a court cannot freely seal documents even if the court did
not actually rely on those documents to rule on the motion.”).
Second, Jacques’ argument in favor of privacy loses persuasive effect in
light of his earlier decision to publish the information he seeks to conceal. See
Globe Newspaper Co. v. Pokaski, 868 F.2d 497, 506 n.17 (1st Cir. 1989)
4 (“[P]rior publicity weighs strongly against sealing.”). At his public sentencing
hearing, Jacques disclosed much of the personal family information he now
asks the court to seal. See Doc. 44 at 38, 39, 41. Nor can it be argued that his
attorney did not know how to preemptively protect private information;
indeed, prior counsel filed other documents under seal with the sentencing
memorandum. 1 See Doc. 16-1; Doc. 16-2; Doc. 16-9. While Jacques claims
that the personal identifying information contained in the letters violates
Federal Rule of Criminal Procedure 49.1, “responsibility for redaction lies
with the person making the filing.” Fed. R. Crim. P. 49.1 advisory
committee’s note. His prior counsel neglected to redact the city and state of
the home addresses of the letter writers in accordance with this rule.
Third, Jacques’ argument that one of the third parties submitted a
letter on the understanding that it would remain private is unavailing
because the First Circuit expressly rejected such an argument in Kravetz.
See 706 F.3d at 61 (“It is self-evident that counsel may not make any such
binding assurances about how a court would view such documents.”).
One of the letters is from Jacques’ therapist. See Doc. 16-7. Jacques
contends that “the presumption in favor [of] public access is routinely
1 The documents filed under seal with the government’s assent included mental and physical health records of his minor child and a third document relating to these records.
5 overcome in sentencing proceedings when it comes to letters from mental
health treatment providers.” Doc. 16 at 2-3. While medical information is
“universally presumed to be private, not public,” In re Boston Herald, Inc.,
321 F.3d 174, 190 (1st Cir. 2003), the privacy interest in medical information
is “neither fundamental nor absolute.” United States v. Sattar, 471 F. Supp.
2d 380, 387 (S.D.N.Y. 2006). Courts have applied the presumption of public
access to letters from medical providers and psychiatrists. See, e.g., id.
(psychiatric report submitted by counsel to assist sentencing subject to public
access). Defendant has not shown why the information contained in his
therapist’s letter is so private as to overcome the presumption here.
The First Circuit has expressly empowered district courts to make
specific redactions in the interests of privacy, particularly when physical and
mental health concerns are involved. Kravetz, 706 F.3d at 62. Here, the
government assents to the redaction of the phone numbers, and home and
email addresses in these six letters. Doc. 45 at 4. The government also
assents to a redaction of references in Doc. 16-3 to the minor child’s name and
medical and mental health issues, as well as to all mentions of the child’s
name in the remaining letters. I find that the government’s proposed
redactions strike an appropriate balance between the public’s right of access
and the privacy interests of the third parties.
6 Given the foregoing considerations, I deny the defendant’s motion to
completely seal the six exhibits. Instead, I order specific redactions in
accordance with the proposal contained in the government’s memorandum
opposing the defendant’s motion. See Doc. 45 at 4. The exhibits subject to the
defendant’s motion shall be immediately sealed. The government and the
defendant shall meet and confer and agree upon the specific redactions
required by this order. On or before November 18, 2024, the parties shall
jointly submit proposed redacted letters for inspection by the court. The
redacted letters will be refiled on the public docket after they have been
reviewed and approved by the court.
SO ORDERED.
/s/ Paul J. Barbadoro Paul J. Barbadoro United States District Judge November 15, 2024
cc: Counsel of Record