Motion to intervene in a federal criminal case by a state criminal defendant; Alleged First Amendment right to access a sealed possibly exculpatory “cooperation agreement”; Application of the “experience & logic” test; Press-Enter Co v Superior Ct (Press-Enter II); Whether there is a “widespread, historical tradition of public access to cooperation agreements”; Whether “public access plays a significant positive role in the functioning of the particular process in question”; In re Morning Song Bird Food Litig; In re Search of Fair Fin

The court held that the proposed intervenor (Swain, a defendant in a state criminal case) failed to show a qualified First Amendment right to access a sealed document in federal criminal defendant-Kincaide’s case that might contain a cooperation agreement because “no qualified First Amendment right of access attaches to cooperation agreements[.]” Kincaide pled guilty in federal court to three firearms offenses. A few weeks later, Swain moved to intervene in Kincaide’s case, seeking to unseal a document that could contain a cooperation agreement that Swain could use in his own state case. The district court denied his motion. On appeal, the court noted that the threshold issue was whether Swain had “a qualified First Amendment right to access Kincaide’s sealed plea supplement—in other words, whether the ‘experience and logic’ test supports recognizing a public right of access to cooperation agreements.” The court applied the Press-Enter II test and considered “(1) whether the proceeding or material has ‘historically been open to the press and the general public,’ and (2) whether ‘public access plays a significant positive role in the functioning of the particular process in question.’” It reviewed case law and held that “there is no widespread, historical tradition of public access to cooperation agreements.” It acknowledged that the Supreme Court’s “cases have provided little guidance on how the logic prong weighs the benefits of access against competing concerns.” The court concluded public access to cooperation agreements could endanger those who cooperate with the government and could interfere with government investigations. It noted that it has ruled in prior cases that “logic did not support a right of access to either search-warrant documents or PSR objections.” The court determined that public access would not play “‘a significant positive role in the functioning of the particular’” government processes. Affirmed.