United States v. Rosario Padilla-Lopez

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 12, 2023
• Docket: 20-50302
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 12 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-50302

Plaintiff-Appellee, D.C. No. 3:20-mj-20234-JLB-AJB-1 v.

ROSARIO PADILLA-LOPEZ, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Anthony J. Battaglia, District Judge, Presiding

Argued and Submitted November 15, 2023 Pasadena, California

Before: PARKER,** BYBEE, and LEE, Circuit Judges.

We consider whether either the First Amendment or the common law right of

public access applies to criminal discovery materials submitted in camera to a court

under the procedure set forth in United States v. Henthorn, 931 F.2d 29 (9th Cir.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Barrington D. Parker, Jr., United States Circuit Judge for the U.S. Court of Appeals for the Second Circuit, sitting by designation. 1991). We hold that neither of these doctrines creates a presumption of access to the

government’s ex parte Henthorn application, and we affirm.

If a criminal defendant seeks the personnel files of testifying law enforcement

officers, the prosecution must search and “disclose information favorable to the

defense that meets the appropriate standard of materiality” under Brady v. Maryland,

373 U.S. 83 (1963). Henthorn, 931 F.2d at 30–31 (quoting United States v. Cadet,

727 F.2d 1453, 1467 (9th Cir. 1984)). But if “the prosecution is uncertain about the

materiality of information within its possession,” we held in Henthorn that the

government “may submit the information to the trial court for an in camera

inspection and evaluation.” Id. at 31 (quoting Cadet, 727 F.2d at 1467–68).

Here, the United States, following Henthorn’s procedure, submitted an ex

parte application asking whether it needed to disclose certain information to

Defendant Rosario Padilla-Lopez, who faced a misdemeanor illegal entry charge

under 8 U.S.C. § 1325. After concluding an in camera review of the materials, the

magistrate judge found that the sealed information need not be disclosed. At trial,

Padilla-Lopez was found guilty of illegal entry and sentenced to time served. He

now appeals the district court’s order affirming final judgment and denying his

appeal of the magistrate judge’s order. His appeal hinges on a purported right of

access to the government’s sealed ex parte application under both the First

Amendment and the common law.

2 “We review de novo whether the public has a right of access to the judicial

record of court proceedings under the First Amendment, the common law, or [the

Federal Rules of Criminal Procedure], because these are questions of law.” United

States v. Doe, 870 F.3d 991, 996 (9th Cir. 2017) (alteration in original) (quoting

United States v. Index Newspapers LLC, 766 F.3d 1072, 1081 (9th Cir. 2014)).

Because district courts enjoy inherent authority to seal or unseal documents, an

appellate court reviews a district court’s decision to retain filings under seal for an

abuse of discretion. United States v. Shryock, 342 F.3d 948, 983 (9th Cir. 2003).

Generally, we have recognized two qualified rights of access to certain types

of judicial records and proceedings. United States v. Bus. of Custer Battlefield

Museum & Store, 658 F.3d 1188, 1192 (9th Cir. 2011). There is “‘a First

Amendment right of access to criminal proceedings’ and documents therein.” Id.

(quoting Press-Enter. Co. v. Superior Court, 478 U.S. 1, 8 (1986) (Press-Enter. II)).

And there is “a common law right ‘to inspect and copy public records and

documents, including judicial records and documents.’” Id. (quoting Nixon v.

Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978)). Neither right applies to

Henthorn criminal discovery materials that the court has found to be neither relevant

nor material.

1. The First Amendment does not furnish a right of public access to the

government’s ex parte application submitted to the court under Henthorn’s

3 procedure for in camera review. The Supreme Court has long instructed courts to

employ the two-part “experience and logic” test to ascertain whether the First

Amendment’s qualified right of public access attaches to a particular proceeding or

document. See Press-Enter. II, 478 U.S. at 8–9. Courts must consider (1)

experience: “whether the place and process have historically been open to the press

and general public,” and (2) logic: “whether public access plays a significant positive

role in the functioning of the particular process in question.” United States v.

Carpenter, 923 F.3d 1172, 1178 (9th Cir. 2019) (internal quotation marks and

citation omitted).

Padilla-Lopez has failed to make a sufficient showing under either prong of

this test. There is no tradition of public access to Henthorn materials once a court,

upon conducting its in camera review, has determined that the sealed filings lack

exculpatory or impeachment material under Brady or Giglio v. United States, 405

U.S. 150, 154 (1972) (requiring disclosure of information bearing on credibility of

witness). Nor is there a history of open access to criminal discovery more broadly.

See United States v. Sleugh, 896 F.3d 1007, 1013 (9th Cir. 2018). “Logic” likewise

fails to support a presumptive right of access here because it would not “play[] a

significant positive role in the functioning of the particular process in question.”

Press-Enter. II, 478 U.S. at 8. On the contrary, such a presumption would undermine

Henthorn’s framework of safeguarding the privacy interests of testifying law

4 enforcement officers while allowing the court to inspect for potential Brady or Giglio

material. See Forbes Media LLC v. United States, 61 F.4th 1072, 1079–80 (9th Cir.

2023).

2. The common law likewise does not confer a right of public access to the

government’s ex parte application submitted under Henthorn. The common law

analysis is informed by “similar considerations of historical tradition and the risks

and benefits of public disclosure” which guide the First Amendment inquiry. Forbes

Media, 61 F.4th at 1082. Here, there is no history of public access to Henthorn

filings. Nor has Padilla-Lopez demonstrated that an “important public need,” Times

Mirror Co. v. United States, 873 F.2d 1210, 1219 (9th Cir. 1989), justifies

disclosure.

3. The district court did not abuse its discretion in affirming the magistrate

judge’s denial of Padilla-Lopez’s motion to unseal the government’s ex parte

application. The prosecutor followed Henthorn’s procedure. Our independent

review of the ex parte application confirms that the document contains no

information that would have been material to Padilla-Lopez’s case. The district

court thus did not err in maintaining the application under seal, and Padilla-Lopez’s

remaining arguments are unavailing.

AFFIRMED.