Memorandum Decision — Motion to Unseal, Case No. 2:21-cr-00520-JNP (Document 159)

Summary

A memorandum decision and order in United States v. Allison Marie Baver and Allison Baver Entertainment, LLC, Case No. 2:21-cr-00520-JNP, Document 159, filed 06/22/23, in the U.S. District Court for the District of Utah, granting the government's motion to unseal defense motions on grand jury transcripts, dismissal and three motions in limine (ECF Nos. 79, 82, 83, 91, 102, and 104). It recites that on October 19, 2022 a grand jury returned a second superseding indictment charging eight counts under 18 U.S.C. § 1014, one under 18 U.S.C. § 1957 and one under 18 U.S.C. § 401(3), with trial set for June 26, 2023. The order specifies which sealed filings are to be unsealed, including the government's response on severing count 10 (ECF No. 106). It is dated June 22, 2023 and signed by District Judge Jill N. Parrish.

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Case 2:21-cr-00520-JNP Document 159 Filed 06/22/23 PageID.<pageID> Page 1 of 6

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

UNITED STATES OF AMERICA, MEMORANDUM DECISION & ORDER
GRANTING PLAINTIFF’S MOTION TO
Plaintiff, UNSEAL

v.
Case No. 2:21-cr-00520-JNP
ALLISON MARIE BAVER and ALLISON
BAVER ENTERTAINMENT, LLC, District Judge Jill N. Parrish

Defendants.

Before the court is a motion filed by Plaintiff, the United States of America requesting the

court unseal the following pleadings: Defendant’s Motion to Release Grand Jury Transcripts,

Defendant’s Amended Motion to Release Grand Jury Transcripts, Motion to Dismiss Counts 1–8,

Motion in Limine to Exclude Witness Nick Patel, Motion in Limine to Exclude Evidence Involving

Neighbor and HOA, and Motion in Limine to Admit Supporting Documentation. ECF Nos. 79, 82,

83, 91, 102, and 104. The court GRANTS the motion.

On October 19, 2022, a grand jury indicted Defendants Allison Marie Baver (“Ms. Baver”)

and Allison Baver Entertainment, LLC (“ABE”) on eight counts of violating 18 U.S.C. § 1014,

one count of violating 18 U.S.C. § 1957, and one count of violating 18 U.S.C. § 401(3). Second

Superseding Indictment, ECF No. 47. A trial date has been set for June 26, 2023. In the interim,

Ms. Baver has filed several motions and reply briefs under seal. See ECF Nos. 79, 82, 83, 87, 91,

98, 100, 102, and 104. The United States has filed its responses to these motions under seal. See

ECF Nos. 84, 96.
Case 2:21-cr-00520-JNP Document 159 Filed 06/22/23 PageID.<pageID> Page 2 of 6

LEGAL STANDARD

“Courts have long recognized a common-law right of access to judicial records.” United

States v. Pickard, 733 F.3d 1297, 1302 (10th Cir. 2013) (quoting Colony Ins. Co. v. Burke, 698

F.3d 1222, 1241 (10th Cir. 2012)).

The records of the court are presumptively open to the public. The
sealing of cases, pleadings, motions, memoranda, exhibits, and
other documents or portions thereof (Documents) is generally
discouraged. Unless restricted by statute, case law, court order, the
Federal Rules of Criminal Procedure, or these local rules, the
public will have access to all Documents filed with the court and to
all court proceedings. Counsel are encouraged to publicly file
Documents and to redact personal identifiers, as set forth in Fed. R.
Crim. P. 49.1, and confidential portions of a Document when they
are not directly pertinent to the issues before the court.

DUCrimR 49-2(a).

However, the “right is not absolute.” Colony Ins. Co., 698 F.3d at 1241. “Documents

containing sensitive, confidential, or personal information for or about a defendant . . . may be

sealed without a motion or prior approval from the court.” DUCrimR 49-2(c)(3). The party

seeking to seal the documents, “bears the burden of showing some significant interest that

outweighs the presumption.” Pickard, 733 F.3d 1297, 1302 (10th Cir. 2013) (internal quotation

omitted). “On a motion of any party and a showing of good cause, or on the court’s own

initiative, the court may order that all or a portion of a Document . . . be unsealed after providing

the parties with an opportunity to justify the continued sealing of the Document or case.”

DUCrimR 49-2(d).

2
Case 2:21-cr-00520-JNP Document 159 Filed 06/22/23 PageID.<pageID> Page 3 of 6

ANALYSIS

As a preliminary matter, Ms. Baver has withdrawn the motions corresponding to ECF Nos.

102 and 104 and filed unsealed versions of these motions as ECF Nos. 113 and 117. Thus, the

court finds that the United States’ request with respect to unsealing these two motions is MOOT.

Ms. Baver argues that the court should continue to seal the pleadings because they contain

information that Ms. Baver has a substantial interest in keeping private, and because unsealing the

documents “has the strong likelihood of preventing Ms. Baver from receiving a fair trial, if the

case is argued in the press prior to actually going to trial.” ECF No. 115 at 4. The court is not

persuaded by either of Ms. Baver’s arguments.

The court addresses Ms. Baver’s fair trial argument first. Ms. Baver cites United States v.

McVeigh, 119 F.3d 806 (10th Cir. 1997) for the proposition that a court may seal judicial records

in a criminal trial where the documents will “produce ‘[a] substantial likelihood of denial of the

right of any person to a fair trial.’” Id. at 809 n.3 (quoting 28 C.F.R. § 50.9(c)(6)). However,

McVeigh was an “extraordinary” “high-profile case” concerning the Oklahoma City bombings. Id.

at 813. And even under the circumstances in McVeigh, the district court did not seal the entirety of

the motions, but rather redacted inadmissible or overly prejudicial materials referenced therein. Id.

at 813–15.

The court is not persuaded that this case, which involves Paycheck Protection Program

fraud, warrants the same kind of consideration as McVeigh. Id. at 813. Even if this were the case,

“parties must articulate a real and substantial interest that justifies depriving the public of access

to the records that inform our decision-making process.” Helm v. Kansas, 656 F.3d 1277, 1292

(10th Cir. 2011). Ms. Baver has not met this burden by simply asserting that her right to a fair trial

may be impacted.
3
Case 2:21-cr-00520-JNP Document 159 Filed 06/22/23 PageID.<pageID> Page 4 of 6

Alternatively, Ms. Baver argues that the pleadings should remain sealed because they

contain “personal financial and bank information, confidential settlement agreements and

negotiations, and the personal information and statements of third parties unrelated to this case

who have privacy interests at stake in unsealing.” ECF No. 115 at 4. However, the entire pleading

does not need to be sealed in order to protect the relevant privacy interests. Identifying information

can be redacted. In short, the court is not persuaded that Ms. Baver has met the “high burden”

necessary to overcome the presumption in favor of public disclosure. Jonna v. GIBF GP, Inc., No.

22-10208, 2023 WL 3244832, at *1 (E.D. Mich. May 4, 2023).

Having concluded that the pleadings should be unsealed, the court addresses Ms. Baver’s

requests regarding specific documents referenced in the pleadings. First, Ms. Baver requests that

the court continue to seal ABE’s bank records. As there is a “compelling government interest in

preserving the secrecy of personal financial records,” the court grants Ms. Baver’s request. In re

Knoxville News-Sentinel Co., Inc., 723 F.2d 470, 477 (6th Cir. 1983). ECF Nos. 79-3, 79-4, 79-

11–14, 82-3, 82-4, 82-11–14 are to remain sealed.

Next, Ms. Baver requests that documents containing ABE’s EIN number remain sealed.

Having reviewed the exhibits, the court believes that Defendants’ privacy interests can be

protected by redacting the EIN number from the relevant documents. See Jonna, 2023 WL

3244832, at *3 (“The only potential private information—the credit card information—can be

redacted without sealing the entirety of the document.”). Ms. Baver is instructed to file a redacted

copy of the documents that include ABE’s EIN number in accordance with DUCrimR 49.1-1(a).

Third, Ms. Baver requests that the court seal any documents provided by Ms. Baver’s

former counsel to the United States as part of Ms. Baver’s reverse proffer. See ECF Nos. 79-15,

4
Case 2:21-cr-00520-JNP Document 159 Filed 06/22/23 PageID.<pageID> Page 5 of 6

82-15, 91-1, 91-3, 100-1. 1 “[A] statement made during plea discussions with an attorney for the

prosecutor authority” that does not end in a guilty plea is inadmissible against the defendant. Fed.

R. Evid. 410(a)(4); State v. Pearson, 818 P.2d 581, 584 (Utah Ct. App. 1991) (“[P]arties’ plea

negotiations were inadmissible evidence.”). “[C]ourts have steadfastly safeguarded against

disclosure of lawyers’ mental impressions and legal theories.” Upjohn Co. v. United States, 449

U.S. 383, 400 (1981). As the documents in question were provided to the United States by Ms.

Baver’s former counsel as part of the reverse proffer and contain former counsel’s legal theories,

the court is convinced to continue to seal these exhibits.

Finally, Ms. Baver requests that the court redact the names of third parties and unrelated

individuals contained in ECF Nos. 79-16–22, 82-16–22.

When a motion to unseal is filed and granted or a seal is set to
expire, at least 10 days before the seal expires, the filing party must
provide to the Clerk’s Office a copy of the document that redacts
the personal identifiers listed in Fed. R. Crim. P. 49.1. The redacted
copy will be added to the docket and become available to the
public at the time the seal expires.

DUCrimR 49.1-1(a)(2). As Ms. Baver initially filed the documents that contain the names of the

third parties, she is instructed to file a redacted copy of these documents to the Clerk’s Office.

CONCLUSION & ORDER

For the aforementioned reasons, the court orders the following:

1) The Motion to Release Grand Jury Transcripts (ECF No. 79) and the Amended Motion to

Release Grand Jury Transcripts (ECF No. 82) shall be unsealed. Exhibits corresponding

to ECF Nos. 79-3, 79-4, 79-11–79-14, 82-3, 82-4, 82-11–82-14 are to remain sealed. Ms.

1
Ms. Baver requests to withdraw exhibit 91-4 and substitute it with a one-page exhibit from the
same document. As the request is unopposed, the court GRANTS it.
5
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Baver shall file a copy of the exhibits corresponding to ECF Nos. 79-5, 79-16–22, 82-5,

82-16–22, with the EIN number and names of third parties redacted. The response filed

by the United States (ECF No. 84) and the reply filed by Ms. Baver (ECF No. 87) shall

be unsealed.

2) The Motion to Dismiss Counts 1–8 (ECF No. 83) shall be unsealed.

3) The Motion to Exclude Witness Nick Patel (ECF No. 91), the response brief filed by the

United States (ECF No. 96), the reply brief filed by Ms. Baver (ECF No. 98), and the

notice of supplemental exhibit (ECF No. 100), shall be unsealed. Ms. Baver may

substitute a one-page exhibit as ECF No. 91-4. ECF Nos. 79-15, 82-15, 91-1, 91-3, and

100-1 shall remain sealed.

4) The brief filed by the United States in response to Ms. Baver’s motion to sever count 10

(ECF No. 106) shall be unsealed.

DATED June 22, 2023.

BY THE COURT

______________________________
Jill N. Parrish
United States District Court Judge

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