When Michael Bacon pleaded guilty to robbing several Utah banks in a federal courtroom in 2015, he took a deal offered by prosecutors.
But he refused to sign one piece of paper — a sealed document that indicated whether he offered the government any information about other crimes or suspects as part of his plea agreement.
He hadn’t.
Bacon did not cooperate with authorities, and he did not want anything in his file to cause anyone in prison to think he had done so.
But U.S. District Court Judge David Nuffer was insistent that Bacon sign the document and that it be filed under seal. He said it was how things were done in Utah’s federal courtrooms.
“You know, you’ve got to understand something,” Bacon told the judge, according to a transcript. “When you go off to prison and you’ve got something sealed inside your paperwork and they see you’ve got a sealed document, they think you cooperated, and they want to hurt you.”
When Bacon refused to sign his name, Nuffer ordered Bacon’s attorney to file the document.
And three years later, after there was a problem in Bacon’s case and he was resentenced, he pleaded with Nuffer once more to not keep private the document that simply said he didn’t cooperate.
“If I don’t want to place my life in jeopardy,” he said, “I don’t see how the federal government can force me to do that.”
Nuffer didn’t change his mind.
Bacon appealed.
The 10th Circuit Court of Appeals ruled in recent weeks that the judge erred in keeping the document sealed — and that Utah’s local rule to seal records didn’t override the presumption that judicial records are generally public documents.
The appeals court found that Nuffer should have made case-specific findings about why the government’s interest in having the record sealed “heavily outweighed” the public’s interest in access.
It’s a ruling that may have implications far beyond Bacon’s case.
Melodie Rydalch, spokeswoman for the U.S. attorney’s office in Utah, said Thursday that the courts and their office are reevaluating their policies in light of the 10th Circuit decision.
She said the blanket policy — making sure suspects had a document under seal whether they offered information or not — was put in place in an effort to keep inmates who cooperated with the government safe.
But Bacon’s attorneys argued in court papers that the local policy was putting inmates in danger.
Utah doesn’t have a federal prison, which means convicts are sent to some place out of state and intermixed with those who did not have to follow the rule in Utah.
The practice of sealing cooperating documents hasn’t been implemented in every state — so dockets around the country look different, and some places don’t place sealed records in a defendant’s file.
“A blanket, but disuniform, approach to sealing plea agreements and plea supplements has serious consequences,” Assistant Federal Public Defender Veronica Rossman wrote in court papers. “A sealed document on a docket still signals cooperation. A noncooperating defendant with a sealed supplement is at risk for being identified incorrectly as a cooperator. And because of the automatic application of blanket sealing rules, the non-cooperator is stuck with a sealed judicial document on his docket — one he cannot access and that obscures the truth about his case.”
Bacon’s attorneys declined to comment for this story.
It is possible that the U.S. attorney’s office pushes back and asks for another hearing. Lawyers asked earlier this week for an extension on a deadline to seek a rehearing, saying the solicitor general’s office is currently reviewing the case.
Federal attorneys had argued that local judges had the authority to seal sensitive documents in “unique and compelling circumstances” like this. Assistant U.S. Attorney Ryan Tenney wrote that as court records have gone online, it’s become easier for other prisoners to access each other’s records and determine who had “snitched.”
To combat this, Utah and 13 other districts that adopted a policy that uniformly seals a document that details a defendant’s cooperation, Tenney wrote. He argued that the policy should stay in place to limit prison violence.
Tenney also said that judges shouldn’t have to make case-specific findings before sealing a document.
“Imposing it in this circumstance would endanger past cooperators,” he wrote, “dissuade others from cooperating in the future, burden the courts, and call into question a number of other similar statutes and rules that automatically seal information that is categorically sensitive.”
If the government doesn’t ask for a rehearing, Bacon’s case will come back to the federal courthouse in Salt Lake City for further proceedings.
He remains in prison, where he continues to serve his 6½ year sentence.
