govinfo:USCOURTS-akd-3_19-cr-00056-0

IN THE UNITED STATES DIS
TRICT COURT 
FOR THE DIS
TRICT OF ALASKA 
UNITED STATES OF AMERICA, 
Plaintiff, 
vs. 
DAVON LYNN SMITH,
 
Defendant. 
Case No. 
3:19-cr-00056-JMK 
ORDER PERMITTING ACCESS
 TO 
EX PARTE DOCUMENTS 
Before the Court
 is Defendant’s Motion for Release of Ex Parte Filings and 
Expedited Consideration of Same at Docket 435 (the “Motion”).1  Defendant requests that 
appellate counsel receive access to ex parte documents at Dockets 129, 130, 140, 167, 255, 
286, 287, 301, 302, 303, 304, and 305.  In the Motion, Defendant raised general concerns 
that ex parte documents in this case may have adversely affected his Sixth Amendment 
right to cross-examination or his sentence.   The Government opposed the Motion at 
Docket 437, arguing that these filings are (1) properly ex parte under United States v. 
Thompson, 827 F.2d 1254 (9th Cir. 1987); (2) the motion at Docket 435 effectively is a 
motion to reconsider the Court’s prior orders; and (3) Defendant will not be prejudiced if 
 1  On November 11, 2022, the Ninth Circuit Court of Appeals granted a stay of 
Defendant’s direct appeal pending the outcome of the present Motion.  Docket 438.  The request 
for expedited consideration of this motion therefore is moot.   
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United States v. Smith  Case No. 3:19-cr-00056-JMK 
Order to Permitting Access to Ex Parte Documents   Page 2 
access is denied because the Ninth Circuit may review the documents independently.  
Defendant’s reply expanded upon the possible appellate implications of each ex parte 
filing.2  In light of Defendant’s substantive reply, the Court expressed an inclination to 
grant Defendant’s Motion and invited the Government to submit a sur-reply at Docket 441.  
The Government’s sur-reply reiterated the arguments made in its opposition and requested 
that any documents released to appellate counsel remain sealed to the public and subject to 
the Court’s Protective Orders at Dockets 18 and 23.
3  Additionally, the Government filed 
a Notice of Authority, which advanced the argument that United States v. Sleugh, 896 F.3d 
1007 (9th Cir. 2018), sets the standard for the Court’s analysis.4  Defendant disagreed.5   
An appellate court limits its review to the record before the district court.6  
Accordingly, “under [Federal Rule of Appellate Procedure] Rule 10(a), all of the original 
papers and exhibits filed in the district court are a part of the record on appeal[.]” 7  Any 
disagreements about what constitutes the district court record shall be settled by the district 
court.8  In resolving disputes surrounding the records on appeal, district court judges should 
bear in mind that “[a]ppellate judges are entitled to see all the materials that the district 
judge considered.”9  
 
 2  Docket 439. 
 3  Docket 442. 
 4  Docket 444. 
 5  Docket 446. 
 6  Martinez v. Newsom , 46 F.4th 965, 975 (9th Cir. 2022) ; Kirshner v. Uniden Corp. of 
Am., 842 F.2d 1074, 1077 (9th Cir. 1988). 
 7  Chapman v. Rudd Paint & Varnish Co., 409 F.2d 635, 638 (9th Cir. 1969). 
 8  Fed. R. App. P. 10(e)(1).   
 9  United States v. Burke, 781 F.2d 1234, 1246 (7th Cir. 1985). 
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The issue present before the Court is how to balance (1) sensitive 
information, previously ruled on as ex parte; ( 2) with the constitutional rights of a criminal 
defendant, now an appellant, who raises pointed concerns; and (3) the fundamental due 
process functions of appellate review. 10  This is a discretionary, fact -based task.11  Due to 
the sensitive nature of the materials at issue, the Court has reviewed (1) the parties briefing; 
(2) Dockets 129, 130, 140, 167, 255, 286, 287, 301, 302, 303, 304, and 305; (3) applicable 
sections of the trial transcript relevant to the aforementioned dockets; and (4) the Protective 
Order at Docket 18, adopted at Docket 23. 
The parties agree that ex parte proceedings are disfavored  as they are 
antithetical to the adversarial process.
12  The Ninth Circuit has emphasized that a criminal 
defendant’s right “to an adversarial proceeding [as] fundamental to our system of justice” 
and that the “truth will most likely be served if the decisionmaker—judge or jury—has the 
benefit of forceful argument by both sides.”
13  This is true for trial as well as for the appeals 
process.14   
United States v.  Thompson addressed whether a district court abused its 
discretion by permitting a prosecutor to justify the use of his preemptory strikes on black 
 
10  See In re K.K., 756 F.3d 1169 (9th Cir. 2014) (“[I]n ordering production of the requested 
documents, the district court appropriately balanced the victim ’s privacy interests against the 
defendant’s right to “investigate the case and prepare a defense[.]”). 
11  United States v. Thompson, 827 F.2d 1254, 1257 (9th Cir. 1987) (noting that a “district 
court judge has broad discretion to fashion and guide the procedures to be followed in cases before 
him.”). 
12  Docket 435 at 3; Docket 437 at 1 ; Docket 439 at 3.  See also  Thompson, 827 F.2d at  
1257 (stating “adversary proceedings are the norm in our system of criminal justice and ex parte 
proceedings the disfavored exception.”) (internal citation omitted). 
13  Thompson, 827 F.2d 1254, 1258 (9th Cir. 1987). 
14  Evitts v. Lucey, 469 U.S. 387, 396 (1985). 
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jurors, before the district court and on the record without defense counsel or the defendant 
present.15  There, defense counsel was aware the ex parte proceeding occurred, but only 
learned of the content of the hearing after the transcript was prepared for appeal. 16  
Thompson held that such a proceeding was error.  While not factually analogous to this 
case, Thompson makes clear that “[a]bsent such compelling justification, ex parte 
proceedings are anathema in our system of justice and, in the context of a criminal trial [or 
appeal], may amount to a denial of due process.”17  However, the Government is correct in 
its assertion that United States v. Thompson outlines some of the “uneasy compromises” 
of ex parte proceedings that are at issue here:  materials reviewed for Brady disclosure, 
sensitive identities, information with privacy implications, or where the Court acted  with 
expediency.18   
The Government further argues that this Court should look to United States 
v. Sleugh, 896 F.3d 1007 (9th Cir. 2018), for a workable standard to apply here.  In Sleugh, 
a dispute arose as to “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. ”19  In similar 
posture to the instant case, Sleugh arises from appellate counsel wanting access to restricted 
 
15  Thompson, 827 F.2d at 1255–56. 
16  Id. at 1256. 
17  Id. at 1258–59. 
18  Docket 437 at 1–2; Thompson, 827 F.2d at 1258. 
19  Sleugh, 896 F.3d at 1010. 
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documents.20  However, unlike this case, Sleugh argues under the First Amendment and 
common law to unseal these documents with only a generalized theory of inconsistent 
testimony.21  Here, Defendant argues pursuant to the Sixth Amendment, with relative 
particularity (per the reply), and only requests disclosure in accordance with the Protective 
Order in place. 22  The Court does not find Sleugh controlling or presenting an applicable 
test.  However, the Court finds Sleugh persuasive as to Defendant’s burden to articulate a 
need for these documents.23  
The Due Process Clause of the Sixth Amendment entitles Defendant to 
effective assistance of appellate counsel. 24  Because access to a complete and accurate 
record is essential to the appeals process, 25 Defendant’s right to effective assistance of 
appellate counsel right would prove illusory if his appellate counsel is unable to review the 
record before the district court.26  Further, it is not the role of the Government to determine 
whether these filings are relevant or appropriate to Defendant’s appeal.  Nor is it the role 
of this Court to re-review those filings and its previous orders to determine whether error 
exists.27  The review and fashioning of any arguments for error is the province of appellate 
 
20  Id. 
21  Id. at 1010–13. 
22  See Dockets 435, 439. 
23  Sleugh, 896 F.3d at 1016. 
24  Pollard v. White, 119 F.3d 1430, 1435 (9th Cir. 1997); Evitts, 469 U.S. at 396 (“A first 
appeal as of right therefore is not adjudicated in accord with due process of law if the appellant 
does not have the effective assistance of an attorney.”). 
25  See Entsminger v. Iowa, 386 U.S. 748, 752 (1967). 
26  See Michigan v. Harvey, 494 U.S. 344, 348 (1990). 
27  Thompson, 827 F.2d at 1260 (reasoning that to “take on the role of defense counsel —
inventing possible arguments as to why the prosecutor’s stated reasons might not be sufficient —
while at the same time keeping an open mind so as to rule on the motion impartially” is untenable 
for a district court). 
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counsel and the review and determination of error is the sole province of the Ninth Circuit 
Court of Appeals.   
The Court recognizes a victim’s right to be treated with fairness and a respect 
for their dignity and privacy.28  The Court therefore recognizes that some of the sensitive 
information at issue here must be protected for safety and privacy.  The Protective Order 
binds counsel to strict rules of redaction and disclosure.  Specifically, the Protective Order:  
prohibits defense counsel from providing copies of the 
discovery to the defendant that identify in a victim, cooperator, 
or CHS, or that otherwise contain PII of any individual.  
Specifically, the United States also requests that any audio or 
video recording in which a victim, cooperator, or CHS is 
identified in any way, speaks, or is otherwise depicted, or able 
to be identified, not be provided to the defendant.  Defense 
counsel may review the documents with the defendant but the 
defendant may not be given copies of discovery that has not 
been redacted.
29 
 
Furthermore, the Protective Order provides that Defendant and Defendant’s counsel could 
be prosecuted for criminal contempt if they violate the Protective Order.30  Defendant raises 
specific and direct concerns about the need to review these documents—and Defendant’s 
counsel has represented that she will comply with the Protective Order.   The Government 
has not provided the Court with any reason to doubt that the Protective Order at Docket 18 
and adopted at Docket 23 is insufficient to protect the sensitive information during the 
appeals process.   
 
28  18 U.S.C. § 3771(a)(8). 
29  Docket 18 at 2. 
30  Docket 18 at 3. 
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United States v. Smith  Case No. 3:19-cr-00056-JMK 
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Accordingly, the Court finds Defendant makes a compelling and well-
articulated reason for disclosure of Dockets 129, 130, 140, 167, 286, and 287, subject to 
the Protection Order.  The Defendant makes  only generalized reasons for Dockets 255, 
301, 302, 303, 304, and 305.  Thoughtful examination of the record, 18 U.S.C. § 3771(a)(8), 
and the case law presented precludes the Court from granting wholesale disclosure.  
Limited access to Docket 255 is granted, but only as to the 255, 255-12, 255-13, and 255-
14, and subject to the Protection Order.  Access to Dockets 301–305 is denied because they 
contain the sensitive identity and location of a potential cooperating witness, which is a 
proper use of an ex parte proceeding.  In light of these disclosures and the interest of 
balancing the aforementioned interests, the Court will entertain modification of the 
Protective Order or the entrance of an additional Protective Order after the parties meet 
and confer.   
 IT IS THEREFORE ORDERED:   
  1. Defendant’s Motion for Release of Ex Parte Filings at Docket 435 is 
GRANTED IN PART as to Dockets 129, 130, 140, 167, 255, 255-12, 255-13, 255-14; 
DENIED IN PART as to Dockets 301–305. 
  2. Seven days from the issuance of this order, appellate counsel and the 
Government shall confer and submit a joint status report to the Court, if any provisions of 
the Protective Order should be modified or an additional order is needed.   
  3. Fourteen days from the issuance of this order, the Clerk of Court shall 
give Ms. Sun access to Dockets 129, 130, 140, 167, 286, an 287 via the CM/ECF system.  
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Due to the logistics and limitations of the CM/ECF system, the Clerk of Court shall 
conventionally mail Dockets 255, 255-12, 255-13, 255-14 to Defendant’s counsel.   
  4. In the event of additional motions practice on this issue, access of the 
Dockets will be delayed until the resolution of those motions.   
  5. Dockets 129, 130, 140, 167, 255, 286, 287, 301, 302, 303, 304, and 
305 shall remain sealed from the public.   
  IT IS SO ORDERED this 5th day of January, 2023, at Anchorage, Alaska. 
 
                   /s/ Joshua M. Kindred                 
 JOSHUA M. KINDRED 
 United States District Judge 
 
 
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