218 F.3d 415 (5th Cir. 2000), 00-30134, United States v Brown

Docket Nº:00-30134
Citation:218 F.3d 415
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JAMES HARVEY BROWN, also known as Jim Brown, Defendant-Appellant.
Case Date:July 06, 2000
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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218 F.3d 415 (5th Cir. 2000)



JAMES HARVEY BROWN, also known as Jim Brown, Defendant-Appellant.

No. 00-30134


July 6, 2000

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Appeal from the United States District Court for the Middle District of Louisiana, Baton Rouge

Before KING, Chief Judge, and GARWOOD and DeMOSS, Circuit Judges.

GARWOOD, Circuit Judge:

Defendant-appellant James Harvey "Jim" Brown (Brown), a prominent Louisiana political figure, is currently under indictment in the Middle District of Louisiana on various charges relating to the brokering of an alleged "sham" settlement of a threatened lawsuit by the State of Louisiana against the president of a failed automobile insurance company. The district court sua sponte entered a gag order that prohibits attorneys, parties, or witnesses from discussing with "any public communications media" anything about the case "which could interfere with a fair trial," including statements "intended to influence public opinion regarding the merits of this case," with exceptions for matters of public record and matters such as assertions of innocence. The district court denied Brown's motion to vacate or modify the gag order, and Brown now appeals that denial. We affirm.

Facts and Proceedings Below

Brown is the elected Insurance Commissioner for the State of Louisiana. On September 24, 1999, Brown, along with five others, including former Louisiana Governor Edwin W. Edwards (Edwards), was indicted in United States District Court for the Middle District of Louisiana on numerous counts of conspiracy, mail and wire fraud, insurance fraud, making false statements, and witness tampering. The charges all relate to Brown's alleged use of his influence as Insurance Commissioner to help construct, along with Edwards and the other defendants, a "sham settlement" that derailed a $27 million lawsuit threatened by the state against David Disiere, president of Cascade Insurance Co., a failed automobile insurance carrier. In a news conference shortly after the indictment was issued, Brown declared his innocence as well as his belief that he was the victim of a "political drive-by shooting" at the hands of "an out-of-control prosecutor." After some delays, the trial is currently scheduled to commence on August 21, 2000.

On the day the indictment was issued against Brown and his co-defendants, the district court entered on its own motion a gag order prohibiting parties, lawyers, and potential witnesses from giving to "any public communications media" "any extrajudicial statement or interview" about the trial (other than matters of public record) that "could interfere with a fair trial or prejudice any defendant, the government, or the administration of justice." The order

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provides that "[s]tatements or information intended to influence public opinion regarding the merits of this case are specifically designated as information which could prejudice a party." The order expressly does not prevent the parties from discussing, "without elaboration or any kind of characterization," (1) the general nature of any allegations or defenses; (2) information contained in the public record; (3) scheduling information; (4) any decision or order by the court that is a matter of public record; and (5) "the contents or substance" of any motion filed in the case, to the extent the motion is a matter of public record.

The district court had previously entered a similar gag order for a related case pending in the same court in which Edwards was also a defendant. In that case, Edwards and six others were charged with multiple counts of racketeering, extortion, money laundering, and wire and mail fraud for allegedly extorting money from parties who sought licenses to operate riverboat casinos in Louisiana. On May 9, 2000, the jury convicted Edwards and four other defendants; the district court has subsequently lifted the gag order in that case. A third case is also pending before the same district court, this one concerning allegations that three individuals (not parties to the present appeal) improperly used their political influence to steer the awarding of certain lucrative contracts. As the district court noted, these three cases concern different alleged acts of wrongdoing but involve many of the same defendants and arose from the same federal investigation. Given the allegations of corruption against several prominent political and business figures, all three cases have generated extensive and intense local and national media attention.

On September 28, 1999, the district court temporarily lifted the gag order in this case to avoid interfering with Brown's re-election campaign for Insurance Commissioner. Shortly thereafter, various defendants1 released to the media recordings (as well as transcripts of recordings) of telephone conversations relevant to the case, and also conducted interviews while playing the recordings. The release of these recordings attracted further interest from the press. On October 7, 1999, the district court entered a limited order prohibiting the parties from releasing recordings (or transcripts of recordings) made prior to the trial. The limited order also prohibited the release of any other discoverable material. At a status conference on October 14, 1999, the district court explained that it had entered the limited order "to stop an avalanche of both government and defendants picking out tapes and start playing all these tapes on radio and television." The court also invited the parties to suggest modifications to the order if they believed any modifications were necessary. None did so.

On November 18, 1999, the district court reimposed the original gag order, to be effective in its entirety when the polls closed on November 20, voting day for the Insurance Commissioner run-off election.2 At a status conference conducted on November 18, Brown objected to the gag order. The district court responded that it believed the order to be necessary in light of the considerable publicity surrounding the trial,3 but emphasized his willingness to consider any modification that the parties might suggest.4 On November 30, 1999, Brown moved to vacate or modify

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the order. After conducting a hearing on the motion on January 4, 2000, the district court requested that the parties submit proposed modifications to the gag order. Brown proposed that the substance of the order remain intact, but that it should only apply to counsel, not to defendants or witnesses. On February 4, 2000, the district court denied Brown's motion to vacate or modify the gag order. Brown then petitioned this Court for a writ of mandamus to vacate the gag order; his petition was denied. See In re Brown, No. 00-30144 (5th Cir. Feb. 21, 2000) (unpublished). On February 7, 2000, Brown filed a notice of appeal from the district court's denial of his motion to vacate or modify the gag order. It is that appeal which we address here.


I. Jurisdiction

As a threshold matter, we must determine whether we have jurisdiction to hear Brown's appeal at all. Both Brown and the only other party to this appeal, appellee the United States, which defends the district court's order, agree that the order is appealable. However, "appellate jurisdiction is not a matter of consent." Trient Partners I Ltd. v. Blockbuster Entertainment Corp., 83 F.3d 704, 708 (5th Cir. 1996). This question is particularly important in light of a recent decision by another panel of this Court, which casts some doubt on our ability to hear the appeal. In the riverboat casino license case, which had been pending before the same district court, Edwards and the other defendants appealed the district court's denial of their motion to lift an identical gag order. This Court dismissed their appeal for lack of jurisdiction. See United States v. Edwards, 206 F.3d 461 (5th Cir. 2000) (per curiam). The special circumstances in Edwards, however, distinguish it, and we conclude that we have jurisdiction to consider the merits of Brown's appeal.

In what is commonly referred to as the final judgment rule, Congress has limited the jurisdiction of this Court to "final decisions of the district courts." 28 U.S.C. § 1291. One of the exceptions to the final judgment rule is known as the collateral order doctrine, which the Supreme Court announced in Cohen v. Beneficial Industrial Loan Corp., 69 S.Ct. 1221 (1949). "The collateral order doctrine establishes that certain decisions of the district court are final in effect although they do not dispose of the litigation." Davis v. East Baton Rouge Parish Sch. Bd., 78 F.3d 920, 925 (5th Cir. 1996). Under this doctrine, some orders may be appealed despite the absence of final judgment if they (1) are conclusive, (2) resolve important questions that are separate from the merits, and (3) are effectively unreviewable on appeal from the final judgment in the underlying action. See In re Grand Jury Subpoena, 190 F.3d 375, 381 (5th Cir. 1999) (quoting Cunningham v. Hamilton County, 119 S.Ct. 1915, 1919 (1999)).

We conclude that the district court's denial of Brown's motion to vacate or modify the gag order is appealable under the collateral order doctrine. First, in terms of Brown's request that the gag order be vacated entirely or at least not applied to him, the order is conclusive. Second, the question at issue-weighing the competing interests of a trial participant's First Amendment right to discuss his criminal trial freely against the district court's obligation to ensure a fair trial and dispense justice in an orderly manner-is unquestionably important. Moreover, it is entirely...

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