Sunlight Does Not Extend to Snitches: Court Holds Plea Agreement Supplements are not Public Documents

In general, the First Amendment guarantees the public access to court proceedings and documents. Does this extend, however, to a defendant's cooperation agreement with the Government? The answer is no according to the Sixth Circuit's recently published opinion in United States v. Kincaide. 

Martavious Kincaide pleaded guilty to three federal firearms offenses in the Western District of Kentucky. Deandre Swain, who was facing murder and wanton endangerment charges before a Kentucky state court, filed a motion to intervene in Kincaide's federal case for the sole purpose of asking the district court to unseal Kincaide's plea agreement supplement. Swain presumably hoped to use the supplement to impeach Kincaide's testimony in the event he testified against him at his trial.

In support of his request, Swain argued that the Western District's general order protecting cooperation agreements was facially unconstitutional for violating the First Amendment. He appealed the district court's subsequent denial of his motion.

The Sixth Circuit subsequently affirmed the district court's decision in published opinion, holding that the First Amendment does not recognize a public right of access to cooperation agreements. Utilizing the "experience and logic" test established by the United States Supreme Court in Press-Enterprise Company v. Superior Court, the Court noted that substantial assistance agreements have a "relatively brief history" without a "consistent national practice...." Thus, the Court held, there was little historical record supporting any claim that the general public traditionally had access to plea agreement supplements.

The Court next noted that plea agreement supplements also failed the "logic" prong of the analysis. Citing data that nearly 600 government cooperators were either harmed or threatened over a three-year period, the Court concluded that granting the public access to such agreements endangered not only government cooperators but also government investigations.

The Court also rejected Swain's argument that United States v. DeJournett, which upheld public access to plea agreements, supported his request, noting that the Court only addressed plea agreements, not their supplements, in that case. In addition, the Court addressed a circuit split with the Ninth Circuit, noting that it found its decision In re Copely Press - holding that cooperation addendums were subject to First Amendment access - was not persuasive. 

This case presents an interesting example of the balance between the First Amendment right guaranteeing public access to government proceedings and the practical considerations facing defendants when they choose to cooperate with the Government. While there is apparently a circuit split, the Sixth Circuit has decided to err on the side of protecting cooperating defendants.