131 F.3d 158 (D.C. Cir. 1997), 97-3147, United States v. El-Sayegh

Docket Nº:97-3147.
Citation:131 F.3d 158
Party Name:UNITED STATES of America, v. Hani EL-SAYEGH, Appellant, Washington Post Company, et al., Appellees.
Case Date:December 16, 1997
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 158

131 F.3d 158 (D.C. Cir. 1997)



Hani EL-SAYEGH, Appellant,

Washington Post Company, et al., Appellees.

No. 97-3147.

United States Court of Appeals, District of Columbia Circuit

December 16, 1997

Argued Nov. 10, 1997.

Page 159

[327 U.S.App.D.C. 309] 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

Page 160

[327 U.S.App.D.C. 310] 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...

To continue reading