United States v. Luis Fernando Bertulucci Castillo

• Court: Court of Appeals for the Eleventh Circuit
• Decided: July 13, 2018
• Docket: 16-16354
• Status: Unpublished

Opinion

Case: 16-16354 Date Filed: 07/13/2018 Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 16-16354 Non-Argument Calendar ________________________

D.C. Docket No. 1:11-cr-20321-PAS-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LUIS FERNANDO BERTULUCCI CASTILLO, f.k.a. Fernando Blengio Cesena,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(July 13, 2018)

Before WILSON, JORDAN, and ANDERSON, Circuit Judges.

PER CURIAM: Case: 16-16354 Date Filed: 07/13/2018 Page: 2 of 5

Luis Fernando Bertulucci Castillo (“Castillo”) appeals the district court’s

denial of his motion to unseal part of the record in his concluded criminal

proceeding and subsequent motion for reconsideration. On appeal, Castillo asks us

to unseal the docket entries mentioned in his motion before the district court,

docketed as documents 100, 102, 103, 104, and 105.1 He argues that he needs

access in order to represent himself effectively in a future collateral attack on his

conviction and contends that the sealed documents will show the government’s

bias and corroborate the allegations from his prior motion to vacate pursuant to 28

U.S.C. § 2255, where he raised claims of ineffective assistance of counsel.

Castillo also argues that the district court denied him due process by failing to

provide him with any legal explanation or factual findings with regard to its

decision to seal part of the record. 2

We review for an abuse of discretion the refusal of a district court to unseal

court documents. Romero v. Drummond Co., 480 F.3d 1234, 1242 (11th Cir.

2007). The district court’s denial of a motion for reconsideration is also reviewed

1 In his brief, Castillo also seeks to unseal document 49. However, Castillo did not move to unseal document 49 in the motion before the district court that is the subject of this appeal, so the issue is not properly before us. We also denied this same request in Castillo’s prior appeal. 2 The government suggests that Castillo’s notice of appeal was not timely filed, which depends on whether his motion to unseal is considered a civil filing or criminal filing. Construed as a criminal filing, the government has forfeited its timeliness objection by raising it only once in passing. See United States v. Frazier, 605 F.3d 1271, 1278 (11th Cir. 2010); United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003). If civil in nature, Castillo’s notice of appeal was timely as to both orders. See Fed. R. App. P. 4(a)(1)(B)(i), (4)(A). Because we may proceed to the merits in either event, we need not decide the nature of the proceeding. 2 Case: 16-16354 Date Filed: 07/13/2018 Page: 3 of 5

for abuse of discretion. United States v. Simms, 385 F.3d 1347, 1356 (11th Cir.

2004).

There is no general constitutional right of access to documents that a

criminal defendant deems material to a past criminal case or potential collateral

postconviction proceedings. See Pennsylvania v. Ritchie, 480 U.S. 39, 59-60

(1987); Hansen v. United States, 956 F.2d 245, 248 (11th Cir. 1992). However,

the press and public enjoy a qualified First Amendment right of access to criminal

proceedings, which we have applied to criminal defendants seeking access to

sealed records. See United States v. Ochoa-Vasquez, 428 F.3d 1015, 1028 (11th

Cir. 2005); United States v. Ignasiak, 667 F.3d 1217, 1237-39 (11th Cir. 2012).

There is a presumption of openness for court documents, but a party may

overcome that presumption if it can show an overriding interest based on findings

that closure is essential to preserve higher values and is narrowly tailored to serve

that interest. Ochoa-Vasquez, 428 F.3d at 1030. In deciding whether an interest is

sufficient to warrant sealing part of the record, the district court must consider,

among other factors, (1) whether public access would impair the court’s functions

or harm legitimate privacy interests, (2) the degree and likelihood of injury if the

information were released, (3) the reliability of the information, (4) whether there

will be an opportunity to respond to the information, (5) whether the information is

3 Case: 16-16354 Date Filed: 07/13/2018 Page: 4 of 5

relevant to public interests, and (6) the availability of less onerous alternatives to

sealing. Romero, 480 F.3d at 1246.

When sealing proceedings or documents, a court must also articulate the

overriding interest, along with findings specific enough to allow a reviewing court

to determine whether the order was properly entered. Ochoa-Vasquez, 428 F.3d at

1030. However, the district court need not state the alternatives to sealing that it

considered and rejected. United States v. Valenti, 987 F.2d 708, 714-15 (11th

Cir. 1993).

The district court did not abuse its discretion, either in denying Castillo’s

motion to unseal or his motion for reconsideration. Although Castillo has alleged

that he suffered a violation of due process, the district court was not required to

unseal the record for his review in preparing for future litigation to attack his

conviction. See Ritchie, 480 U.S. at 59-60. In sealing the filings, the district court

provided adequate reasons to facilitate judicial review of its decision, and Castillo

has pointed to no authority requiring that those reasons be disclosed to him. See

Ochoa-Vasquez, 428 F.3d at 1030. The reasons provided by the district court were

sufficiently compelling and warranted sealing all five docket entries. Castillo also

did not provide any new arguments that warranted reconsideration of the district

court’s denial of his motion to unseal, and to the extent that he provided new

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evidence concerning the alleged ineffectiveness of his prior attorneys, that

evidence is not relevant to any of the information contained in the sealed filings.

AFFIRMED.