Whether the need for sealing a co-defendant's subpoena applications ends once the co-defendant changes his plea and testifies for the Government at trial

QUESTIONS PRESENTED This Court has long recognized the dangers posed when the Government uses so-called “cooperators” to prosecute criminal cases. As Justice Jackson observed nearly 70 years ago: The use of informers, accessories, accomplices, false friends, or any of the other betrayals which are ‘dirty business’ may raise serious questions of credibility. To the extent that they do, a defendant is entitled to broad latitude to probe credibility by cross-examination and to have the issues submitted to the jury with careful instructions. On Lee v. United States, 343 U.S. 747, 757 (1952). In this case, the Government’s use of co-defendant Shawndale Boyd as its star witness at petitioner Damion Sleugh’s trial posed these very dangers. Pretrial, Boyd obtained sealing of his applications for subpoenae duces tecum based on his Fifth and Sixth Amendment interests in shielding his trial defense from the Government. (The record suggests strongly that Boyd was pursuing an alibi defense, which cannot be reconciled with his trial testimony.) But then, shortly before trial, Boyd flipped, pleaded guilty, and confessed before the jury as the star witness at petitioner’s trial. At trial, petitioner’s ability to cross-examine Boyd was hamstrung because he lacked access to representations Boyd made to the district court to secure process to advance his “trial defense.” i But the bases to keep Boyd’s representations secret evaporated when Boyd abandoned his trial defense and confessed his participation in the charged crimes. Following his trial convictions, pursuant to Ellis v. United States, 356 U.S. 674, 675 (1956) (appellate counsel has a duty to conduct “conscientious investigation” of the record to determine all “possible grounds of appeal”), petitioner sought to obtain Boyd’s subpoena applications to determine if they materially impeached his trial testimony. See also Hardy v. United States, 375 U.S. 277, 280 (1964) (appellate counsel’s duties involve reviewing the “entire” record); Jones v. Barnes, 463 U.S. 745 (1983) (appellate counsel has an obligation to scour the record for appealable issues). If Boyd’s applications contained such material impeachment— and that is likely on this record—petitioner contended that the withholding of these materials during trial may have distorted the fact-finding process and supported a new trial under this Court’s due process jurisprudence. See e.g., Giglio v. United States, 405 U.S. 150 (1972). But the lower courts denied disclosure. The Questions Presented are: Does the need for sealing a co-defendant’s subpoena applications end once the co-defendant changes his plea and testifies for the Government at trial? Do the First and Fifth Amendments require disclosure of a co-defendant’s subpoena applications once judgment against the co-defendant has entered, where the codefendant testified at trial in a manner apparently inconsistent with any trial defense? ii CONSTITUTIONAL AND STATUTORY PROVISIONS. A. — Trial court ed B. Appellate C. = The Ninth Circuit’s opinion.cccescseec