UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America

v. Case No. 24-cr-19-PB-TSM-1 Opinion No.

Marc Jacques

ORDER

Marc Jacques was convicted of one count of distribution of child

pornography and was sentenced to 60 months in prison. Prior to his

sentencing, Jacques’ counsel attached various exhibits in support of his

sentencing memorandum. See Doc. 16. His counsel at the time submitted

three exhibits under seal but did not attempt to seal the remaining

documents. Jacques’ new counsel has filed a motion asking the court to

completely seal six of the previously unsealed exhibits on the grounds that

they disclose sensitive personal information of third parties. See Doc. 41. The

exhibits in question are letters submitted by third parties on the defendant’s

behalf as well as a letter written by the defendant himself. See Doc. 16-3;

Doc. 16-4; Doc. 16-5; Doc. 16-6; Doc. 16-7; Doc. 16-8. The government has filed

a partial objection opposing a blanket sealing order but agreeing that

targeted redactions are warranted. See Doc. 45. I. Legal Standard

“Courts have long recognized ‘that public monitoring of the judicial

system fosters the important values of quality, honesty, and respect for our

legal system.’” United States v. Kravetz,

(1st Cir. 2013)

(quoting In re Providence Journal,

, 9 (1st Cir. 2002)). Courts must

“carefully balance the presumptive public right of access against the

competing interests that are at stake in a particular case, keeping in mind

that only the most compelling reasons can justify non-disclosure of judicial

records that come within the scope of the common-law right of access.” Id. at

59 (internal quotation marks omitted). To overcome this presumption, the

party seeking to seal documents must “demonstrate significant

countervailing interests[.]” Bradford & Bigelow, Inc. v. Richardson,

(D. Mass. 2015).

The parties agree that the relevant legal standard here comes from

United States v. Kravetz, in which the First Circuit Court of Appeals

addressed whether the common law right of access applied to letters attached

as exhibits to sentencing memoranda.

. While the court noted

that such letters “are often unguarded and informal, and [. . .] frequently

emotion-laden,” the court held that they were judicial documents to which the

presumptive right of public access attached because their purpose was to

“serve as an evidentiary basis for the defendant’s arguments for leniency.” Id.

2 (cleaned up). “[R]elevant documents which are submitted to, and accepted by,

a court of competent jurisdiction in the course of adjudicatory proceedings,

become documents to which the presumption of public access applies.” FTC v.

Standard Fin. Mgmt. Corp.,

, 409 (1st Cir. 1987). Documents

which a judge “should have considered, but did not, are just as deserving of

disclosure as those that actually entered into the judge’s decision.” Lugosch v.

Pyramid Co. of Onondaga,

(2d Cir. 2006) (internal citations

omitted) (emphasis in original).

As relevant here, third-party privacy concerns may outweigh the

presumption of public access where “the balance of interests justifies

withholding from the public the identity of the authors, or the entire content

of each of the relevant letters.” Kravetz,

. Where the public’s

right of access is at odds with third-party privacy rights, “it is proper for the

district court, after weighing competing interests, to edit and redact a judicial

document in order to allow access to appropriate portions of the document.”

(quoting United States v. Amodeo,

(2d Cir. 1995)).

II. Application Jacques asks the court to completely seal six of the exhibits attached to

his sentencing memorandum on the grounds that third-party privacy

concerns outweigh the common law presumption of public access. I disagree.

3 The letters contain information about the defendant’s family situation,

medical and personal information about the defendant’s children, as well as

personal identifying information about the third-party letter writers. Jacques

claims this information is of “no legitimate incremental value to the public.”

Doc. 41 at 2. Further, Jacques contends that the “intense publicity” around

his case warrants heightened privacy protection, particularly given safety

concerns involving two of the letter writers. Id. at 1, 2. One of the writers was

“assured by former counsel that her letter would be filed under seal.” Id. at 2.

The circumstances here are insufficient to overcome the presumption of

public access for three principal reasons. First, these letters were offered to

support Jacques’ argument for a downward departure or variance. See Doc.

16 at 16-18. While his family circumstances were not ultimately the basis for

the court’s decision to grant a variance, the court referred to his family

situation while issuing its sentence. Doc. 44 at 47-48; see Roy v. FedEx

Ground Package Sys., Inc., No. 3:17-CV-30116-KAR,

, at *2

(D. Mass. May 7, 2024) (“[W]hen documents are filed in connection with a

substantive motion, a court cannot freely seal documents even if the court did

not actually rely on those documents to rule on the motion.”).

Second, Jacques’ argument in favor of privacy loses persuasive effect in

light of his earlier decision to publish the information he seeks to conceal. See

Globe Newspaper Co. v. Pokaski,

, 506 n.17 (1st Cir. 1989)

4 (“[P]rior publicity weighs strongly against sealing.”). At his public sentencing

hearing, Jacques disclosed much of the personal family information he now

asks the court to seal. See Doc. 44 at 38, 39, 41. Nor can it be argued that his

attorney did not know how to preemptively protect private information;

indeed, prior counsel filed other documents under seal with the sentencing

memorandum. 1 See Doc. 16-1; Doc. 16-2; Doc. 16-9. While Jacques claims

that the personal identifying information contained in the letters violates

Federal Rule of Criminal Procedure 49.1, “responsibility for redaction lies

with the person making the filing.” Fed. R. Crim. P. 49.1 advisory

committee’s note. His prior counsel neglected to redact the city and state of

the home addresses of the letter writers in accordance with this rule.

Third, Jacques’ argument that one of the third parties submitted a

letter on the understanding that it would remain private is unavailing

because the First Circuit expressly rejected such an argument in Kravetz.

See

(“It is self-evident that counsel may not make any such

binding assurances about how a court would view such documents.”).

One of the letters is from Jacques’ therapist. See Doc. 16-7. Jacques

contends that “the presumption in favor [of] public access is routinely

1 The documents filed under seal with the government’s assent included mental and physical health records of his minor child and a third document relating to these records.

5 overcome in sentencing proceedings when it comes to letters from mental

health treatment providers.” Doc. 16 at 2-3. While medical information is

“universally presumed to be private, not public,” In re Boston Herald, Inc.,

(1st Cir. 2003), the privacy interest in medical information

is “neither fundamental nor absolute.” United States v. Sattar,

(S.D.N.Y. 2006). Courts have applied the presumption of public

access to letters from medical providers and psychiatrists. See, e.g.,

(psychiatric report submitted by counsel to assist sentencing subject to public

access). Defendant has not shown why the information contained in his

therapist’s letter is so private as to overcome the presumption here.

The First Circuit has expressly empowered district courts to make

specific redactions in the interests of privacy, particularly when physical and

mental health concerns are involved. Kravetz,

. Here, the

government assents to the redaction of the phone numbers, and home and

email addresses in these six letters. Doc. 45 at 4. The government also

assents to a redaction of references in Doc. 16-3 to the minor child’s name and

medical and mental health issues, as well as to all mentions of the child’s

name in the remaining letters. I find that the government’s proposed

redactions strike an appropriate balance between the public’s right of access

and the privacy interests of the third parties.

6 Given the foregoing considerations, I deny the defendant’s motion to

completely seal the six exhibits. Instead, I order specific redactions in

accordance with the proposal contained in the government’s memorandum

opposing the defendant’s motion. See Doc. 45 at 4. The exhibits subject to the

defendant’s motion shall be immediately sealed. The government and the

defendant shall meet and confer and agree upon the specific redactions

required by this order. On or before November 18, 2024, the parties shall

jointly submit proposed redacted letters for inspection by the court. The

redacted letters will be refiled on the public docket after they have been

reviewed and approved by the court.

SO ORDERED.

/s/ Paul J. Barbadoro Paul J. Barbadoro United States District Judge November 15, 2024

cc: Counsel of Record

7