In United States v. Sealed Defendant One, 2d Cir. No. 21-118 (Sep. 21, 2022), a Panel of the Court (Newman, Chin, and Sullivan), in an opinion by Judge Sullivan, principally ruled that a sealed sentencing proceeding, which occurred via Skype videoconferencing during the COVID-19 pandemic, did not violate Rule 53’s bar on the “broadcasting” of judicial proceedings. See Fed. R. Crim. P. 53 (“Except as otherwise provided by statute or these rules, the court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom.”). This is so because the term “broadcasting” “clearly entails ‘public’ distribution to make something ‘widely’ known.” Op. 16-17 (emphases in original) (quoting Merriam-Webster’s online entry for “broadcast”). Because the sealed sentencing here occurred through a “closed” Skype call, which “no one other than Sealed Defendant, his wife, and his defense counsel; the government’s lawyers; and the judge herself” could access, it “fell outside of the prima facie scope of Rule 53.” Op. 17-18.
The Court also held that it was irrelevant whether the district court satisfied the CARES Act’s exception to Rule 43’s presence requirement when it conducted the remote sentencing. This is so because, even before the Act was enacted in 2020, the Circuit had “recognized that a defendant’s right to be physically present at sentencing is waivable so long as his waiver is knowing and voluntary.” Op. 18 (cleaned up) (citing United States v. Salim, 690 F.3d 115, 122 (2d Cir. 2012)). Indeed, Rule 43(c)(1)(B) has long provided that a “defendant who . . . pleaded guilty . . . waives the right to be present . . . in a noncapital case, when the defendant is voluntarily absent during sentencing.” Because the record showed that Sealed Defendant One knowingly and voluntarily waived his right to be physically present at sentencing, and affirmatively consented to the remote proceeding, whether the district court satisfied the conditions needed to trigger the CARES Act “exception” did not matter. Op. 19.
Finally, the Court rejected the defendant’s claim that the Government breached the plea agreement by (1) agreeing with the PSR’s Guidelines calculation, which was higher than that stated in the agreement; and then (2) advocating for a variance above the range. The Government did not violate the plea agreement, the Court explained, because the agreement “expressly” (1) “permitted the parties ‘to make all appropriate arguments’ in the event that Probation calculated a Guidelines range ‘different from [the range] stipulated to’”; and (2) stated that “either party could ‘seek a sentence outside of the Stipulated Guidelines Range based on the factors’ delineated in 18 U.S.C. § 3553(a).” Op. 9 (quoting plea agreement).