IN RE: :
:
PROCEDURES REGARDING GUILTY : STANDING ORDER
PLEAS AND SENTENCING :
:
1. There is a manifest public interest in promoting cooperation with law
enforcement, including by criminal offenders who may provide information about
criminal activity in exchange for leniency for their own conduct. This interest is reflected
in the action of Congress to allow sentences below a statutory mandatory minimum term
where a defendant has provided “substantial assistance in the investigation or prosecution
of another person who has committed an offense,” 18 U.S.C. § 3553(e), and in its
directive to the Sentencing Commission to “assure that the guidelines reflect the general
appropriateness of imposing a lower sentence than would otherwise be imposed,
including a sentence that is lower than that established by statute as a minimum sentence,
to take into account a defendant’s substantial assistance in the investigation or
prosecution of another person who has committed an offense,” 28 U.S.C. § 994(n) (a
directive the Commission executed by adopting U.S.S.G. § 5K1.1).
2. There is a concomitant and equally compelling public interest in protecting the
safety of those who cooperate with law enforcement, and their family members, both to
safeguard those who provide cooperation and to assure that offenders in the future will
not be discouraged from providing assistance to authorities.
3. Based on these interests, this Court has long followed a practice in which guilty
plea agreements and sentencing documents reflecting a defendant’s cooperation have
been filed under seal.
4. This procedure, however, is not sufficient to maintain the confidentiality of a
defendant’s cooperation and thereby protect them and their family members from danger
and retribution. The Court understands that, particularly in correctional institutions where
defendants are housed together, offenders attempt to expose cooperators, and do so by
demanding that inmates produce their court pleadings, from which it may be inferred
whether the defendant is a cooperator or not. That is because, for instance, guilty plea
agreements in this district have varied substantially depending on whether the agreement
includes cooperation provisions or not.
5. To rectify this problem, and following consultation with the United States
Attorney and the Chief Federal Defender for this district, the Court directs as follows:
a. The text of every guilty plea agreement will not refer to cooperation.
Rather, every guilty plea agreement will be accompanied by a supplement, which will be
filed under seal. The sealed supplement will reveal that the defendant is not cooperating
as of that time, or if he or she is cooperating, will present the agreement of the parties
with regard to the terms of cooperation.
b. The text of every sentencing memorandum filed by the government will
not refer to cooperation or include a motion or request for a downward departure based
on substantial assistance. In addition, every such sentencing memorandum filed by the
government will be accompanied by a supplement, which will be filed under seal. The
sealed supplement will reveal that the government is not moving to permit a downward
departure based on cooperation; or it will present the government’s motion for a
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downward departure from the guideline range and/or a statutory mandatory minimum
sentence, along with a proposed order granting such relief.
6. Every supplement described in paragraph 5 to a guilty plea agreement or
government sentencing memorandum will be maintained under seal, and no copy shall be
provided to an inmate in a correctional institution. The Bureau of Prisons shall make
accommodations for an inmate who is proceeding pro se to review such a document as
necessary without maintaining a copy of it.
7. The Court finds that sealing of the supplements described here to guilty plea
agreements and to government sentencing memoranda are necessary to further the
compelling interest of promoting and protecting cooperation with law enforcement. The
Court further finds that any discussion of these supplements at a hearing shall occur
outside the hearing of non-parties in the case, and the transcript of that portion of the
hearing shall be maintained under seal. All other portions of the hearing shall remain
open to the public unless otherwise ordered by the presiding judge.
There is a public right of access to judicial documents in a criminal case, both
under the First Amendment, see, e.g., United States v. Thomas, 905 F.3d 276, 282 (3d Cir.
2018) (plea documents); In re Capital Cities/ABC, Inc.’s Application for Access to Sealed
Transcripts, 913 F.2d 89, 95 (3d Cir. 1990) (transcripts of chambers and sidebar
conferences); United States v. Smith, 776 F.2d 1104, 1112 (3d Cir. 1985) (indictments,
informations, and bills of particulars), and under the common law, see, e.g., In re Avandia
Mktg., Sales Pracs. & Prod. Liab. Litig., 924 F.3d 662, 672 (3d Cir. 2019) (“judicial
proceedings and records”); United States v. Smith, 776 F.2d 1104, 1110 (3d Cir. 1985)
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(“The common law right of access is not limited to evidence, but rather encompasses all
‘judicial records and documents’ . . . . It includes ‘transcripts, evidence, pleadings, and
other materials submitted by litigants’”) (citations omitted); United States v. Criden, 648
F.2d 814 (3d Cir. 1981) (videotapes submitted in evidence).
“A ‘judicial record” is a document that ‘has been filed with the court . . . or
otherwise somehow incorporated or integrated into a district court’s adjudicatory
proceedings.’ . . . Once a document becomes a judicial record, a presumption of access
attaches.” In re Avandia Mktg., 924 F.3d at 672 (quoting In re Cendant Corp., 260 F.3d
183, 192 (3d Cir. 2001)).
To justify sealing of a document under either standard, a similar rule applies.
Under the First Amendment, strict scrutiny applies, requiring the Court to find a
compelling interest that would be substantially impaired by public access. Thomas, 905
F.3d at 282 (quoting United States v. Antar, 38 F.3d 1348, 1359 (3d Cir. 1994)).
Likewise, to overcome the common law right and presumption of access, a party
moving to seal a judicial document must show “that the material is the kind of
information that courts will protect and that disclosure will work a clearly defined and
serious injury to the party seeking closure.” Miller v. Ind. Hosp., 16 F.3d 549, 551 (3d
Cir. 1994) (internal quotation marks omitted). To overcome that strong presumption, the
Court must articulate the compelling interest to be protected and make specific findings
on the record concerning the effects of disclosure. In re Avandia Mktg., 924 F.3d at 672-
73 (citing In re Cendant Corp., 260 F.3d at 194).
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Application of these standards warrants the sealing of the documents described
here. Public disclosure of a defendant’s cooperation presents a substantial risk of harm to
the defendant, and perhaps to others related to or associated with him or her. For this
reason, there is a compelling interest in maintaining confidentiality regarding a
defendant’s cooperation, that is substantially impaired by any exposure.
Courts customarily seal the type of pleadings at issue here, given the government’s
compelling interest to encourage cooperation in law enforcement investigations and to
protect the safety of cooperators and witnesses. See, e.g., United States v. Thomas, 905
F.3d 276, 282–83 (3d Cir. 2018) (authorizing sealing of a plea document to protect the
safety of individuals in a national security matter); United States v. Doe, 962 F.3d 139,
147 (4th Cir. 2020) (stating that “as a general rule, the need to protect the well-being of”
a defendant “is even more elevated if judicial records suggest that the defendant may
have cooperated with law enforcement”); United States v. Doe, 870 F.3d 991, 999 (9th
Cir. 2017) (“[d]irect threats are not ‘a strict condition precedent to a district court’s
granting of a closure motion.’”); United States v. Doe, 63 F.3d 121, 130 (2d Cir. 1995)
(“The problem of retaliatory acts against those producing adverse testimony is especially
acute in the context of criminal organizations”); United States v. Smith, 776 F.2d 1104,
1112 (3d Cir. 1985) (permitting sealing of a portion of a bill of particulars, finding that
the naming of persons in the bill as unindicted co-conspirators carried such a risk of harm
to uncharged persons).
Here, the sealing aims to protect the physical well-being of each defendant and
others associated with him or her. The government has a profound interest in protecting
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the security of cooperating defendants, in preventing retaliation against witnesses, and in
assuring that future, potential cooperators are not deterred from providing vital assistance
by any perceived inability of the government to protect them and their loved ones.
The remedy ordered here is narrowly tailored. The government in each case will
file a guilty plea agreement and a sentencing memorandum which sets forth all pertinent
information about the conviction and the sentencing proceeding, while effectively
masking whether a defendant is cooperating.
8. For these reasons, in every criminal case, the Court will accept for filing under
seal a supplement to every guilty plea agreement, and a supplement to every government
sentencing memorandum, that addresses whether or not a defendant is providing
substantial assistance in the investigation or prosecution of others.
9. Further, for the reasons previously described, it is the policy of the United States
District Court for the Eastern District of Pennsylvania that at every guilty plea hearing
and sentencing hearing any discussion concerning the supplements and whether or not the
defendant is cooperating shall occur outside the hearing of non-parties in the case, and
the transcript of that portion of the hearing shall be maintained under seal. All other
portions of the hearing shall remain open to the public unless otherwise ordered by the
presiding judge.
IT IS SO ORDERED.
/s/ Wendy Beetlestone
Wendy Beetlestone
Chief Judge
Date: September 29, 2025.
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