U.S. v. El-Sayegh

• Citation: 131 F.3d 158
• Decision Date: 16 December 1997
• Docket Number: EL-SAYEG,A,No. 97-3147,97-3147
• Parties: UNITED STATES of America, v. Hanippellant, Washington Post Company, et al., Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 158

131 F.3d 158

327 U.S.App.D.C. 308

UNITED STATES of America, v. Hani EL-SAYEGH, Appellant Washington Post Company, et al., Appellees.

No. 97-3147.

United States Court of Appeals District of Columbia Circuit.

Argued Nov. 10, 1997.

Decided Dec. 16, 1997.

Appeal from the United States District Court for the District of Columbia (No. 97cr00251-01).

Francis D. Carter, Washington, DC, appointed by the court, argued the cause and filed Appellant's Emergency Motion for Stay Pending Appeal and Appellant's Reply to Opposition to his Emergency Motion for Stay Pending Appeal.

Steven M. Farina, Washington, DC, argued the cause for appellees Washington Post Company, et al. With him on the Response to Emergency Motion for Stay Pending Appeal were Kevin T. Baine and Thomas G. Hentoff.

L. Jackson Thomas, II, Assistant U.S. Attorney, Washington, DC, argued the cause for appellee United States. With him on the Government's Response to Appellant's Emergency Motion for Stay Pending Appeal were Mary Lou Leary, U.S. Attorney, John R. Fisher and Mary-Patrice Brown, Assistant U.S. Attorneys.

Before: SILBERMAN, WILLIAMS and TATEL, Circuit Judges.

WILLIAMS, Circuit Judge:

This case requires us to refine the concept of "judicial records" to which there are public rights of access. We conclude that a plea agreement submitted to the court before the plea is offered, solely for the purpose of allowing the court to rule on the government's motion to seal the agreement, is not subject at that stage to a public right of access under either the First Amendment or the common law. Because no right of access exists, we find that it was error for the district court to deny defendant's motion to withdraw the plea agreement from the court's docket once the intended plea fell through.

* * *

Hani El-Sayegh is a Saudi national. In March 1997 he entered Canada, where he was arrested and subjected to deportation proceedings. In April 1997 he contacted the United States government and began a series of discussions that led to the negotiation of a plea agreement. El-Sayegh signed the agreement and was admitted into the United States where, it was expected, he would enter a guilty plea and the other terms of the agreement would be performed.

Federal Rule of Criminal Procedure 11(e)(2) requires plea agreements to be disclosed "in open court or, on a showing of good cause, in camera at the time the plea is offered." Because of sensitive and confidential information in the plea agreement, both the government and El-Sayegh wanted to file the agreement under seal, and also to seal any related portion of the anticipated plea colloquy. They could do so, however, only under the procedure established by circuit law to make sure that the press and public have a fair opportunity to assert their presumptive First Amendment right of access to any agreement on which a plea is entered. See Washington Post v. Robinson, 935 F.2d 282, 290 (D.C.Cir.1991). Robinson requires the government to file a written motion to seal the plea agreement, and requires the court to enter notice of that motion in the public docket and to give interested parties a chance to be heard. Id. at 289. The government's motion to seal may itself be filed under seal, but notice of the sealed motion must still be entered in the public docket. Id. The court may file under seal the details of its resolution of the motion, but only to the extent necessary to protect the secrecy of the sealed agreement. Id. at 289 n. 9.

In punctilious compliance with Robinson, the government on June 16 filed a motion to seal the plea agreement and the related portion of the plea colloquy (the "motion to seal"). A copy of the plea agreement was attached as "Exhibit A," and the motion to seal was itself filed under seal, pursuant to another motion (the "preliminary motion to seal"). The district court, also following the rules laid down in Robinson, directed that notice of the motion to seal be docketed on June 18. As contemplated by Robinson, representatives of the media promptly moved to intervene and oppose the sealing of the plea agreement.

At this point movement toward the anticipated guilty plea ceased. El-Sayegh's initial U.S. counsel, an immigration lawyer admitted to practice in the District of Columbia (and elsewhere), but not before the district court here, was unable to secure admission pro hac vice. On June 19 the district court appointed a new attorney to represent El-Sayegh. A series of continuances followed to allow the new lawyer to familiarize himself with the case, and the district court delayed ruling on the media's opposition to the motion to seal until it could be sure that the agreement would actually be consummated. With good reason--on July 30, El-Sayegh repudiated the agreement entirely and entered a plea of not guilty. Unable to secure corroborating evidence, the government moved on September 8 to dismiss the indictment without prejudice, and the district court granted the motion.

The collapse of the agreement did nothing to reduce the media's curiosity about its details. Learning that the plea agreement would not be offered in court, counsel for the media intervenors sought to unseal the motion to seal. El-Sayegh likewise remained fixed in his determination to keep the agreement secret, and moved to withdraw it from the court's files, where it remained as Exhibit A to the motion to seal. Only the government lost interest; while not opposing El-Sayegh's motion to withdraw the document, it indicated an unwillingness to defend continued sealing.

The district court started from the proposition that the media had some right of access to the document. It reasoned that whether that was a constitutional right of the sort discussed in Robinson, or merely the broader, but weaker, common law right to judicial records described in Washington Legal Found. v. United States Sentencing Comm'n, 89 F.3d 897, 898 (D.C.Cir.1996), depended on whether the document was an actual plea agreement or merely a generic court document. Mem. Op. at 16. In either case, the court found, El-Sayegh had demonstrated no interest sufficient to overcome the public's right to know. Id. at 30-31. On October 21, it denied his motion to withdraw the document from the docket and announced its intention to release the agreement on October 28, subject to appellate intervention. We stayed the release pending appeal, and now reverse.

* * *

The decision whether to seal a judicial record is, at least with respect to the common law right of access, committed to the discretion of the district court. Nixon v. Warner Communications, Inc., 435 U.S. 589, 599, 98 S.Ct. 1306, 1312-13, 55 L.Ed.2d 570 (1978). Our review is directed, however, to the question of whether a right of access (under the First Amendment or at common law) exists at all, and is consequently de novo. See United States v. Antar, 38 F.3d 1348, 1356-57 (3d Cir.1994). We start with the claimed constitutional right.

The First Amendment guarantees the press and the public access to aspects of court proceedings, including documents, "if such access has historically been available, and serves an important function of monitoring prosecutorial or judicial misconduct." Robinson, 935 F.2d at 288 (citing Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8, 106 S.Ct. 2735, 2740, 92 L.Ed.2d 1 (1986)) ("Press-Enterprise II"). We have found that a plea agreement, once it has actually culminated in a guilty plea, satisfies these conditions. See Robinson, 935 F.2d at 283, 288. An agreement that is accepted by the court, and on which a guilty plea is entered substitutes for the entire trial. The public right of access to trials is undisputed in both its importance and its historical pedigree. See, e.g., Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 505-10, 104 S.Ct. 819, 821-24, 78 L.Ed.2d 629 (1984) ("Press-Enterprise I")(tracing history of public trial). It thus makes sense to treat a completed plea agreement as equivalent to a trial, and therefore as an item that "historically has been available."

Robinson's evaluation of executed plea agreements is of minor relevance to this case, however. The document at issue here was not filed with the court at the time a plea was offered; it was submitted only as an exhibit to the motion to seal. The exhibit, and the motion to seal to which it was attached, were themselves filed under seal, pursuant to the preliminary motion. And the district court never ruled on the motion to seal, because the plea agreement itself collapsed. Robinson's procedures were invoked and began to function, but were then abruptly and completed mooted.

Under the Press-Enterprise II standards, we think it is clear that there is no First Amendment right of access to this document. There can hardly be a historical tradition of access to the documents accompanying a procedure that did not exist until Robinson imposed it in 1991. This fact by itself is of course not dispositive: A new procedure that substituted for an older one would presumably be evaluated by the tradition of access to the older procedure. See In re Reporters Committee for Freedom of the Press, 773 F.2d 1325, 1337 (D.C.Cir.1985). But the Robinson requirements are an entirely novel byproduct of the recognition of a First Amendment right of access to plea agreements; courts do not otherwise receive samples of the agreements before the pleas are offered. See Federal Rule of Criminal Procedure 11(e)(2) (providing for disclosure of agreement to court at time plea is offered). Thus it is impossible to say that access to such a document has historically been available, and the media intervenors' claim fails to satisfy the first of the two necessary criteria for a First Amendment right of access. We thus turn to the common law right of access, which is largely controlled by the second of the First Amendment criteria--the utility of access as a means of assuring public monitoring of...