In re Newark Morning Ledger Co.

• Decision Date: 18 July 2001
• Docket Number: APPELLANT,STAR-LEDGE,No. 01-1512,01-1512
• Citation: 260 F.3d 217
• Parties: (3rd Cir. 2001) NEWARK MORNING LEDGER CO., PUBLISHER OF THE
• Court: U.S. Court of Appeals — Third Circuit

Page 217

260 F.3d 217 (3rd Cir. 2001)

NEWARK MORNING LEDGER CO., PUBLISHER OF THE STAR-LEDGER, APPELLANT

No. 01-1512

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued May 15, 2001

Filed July 18, 2001

On Appeal from the United States District Court for the District of New Jersey D.C. Miscellaneous No. 99-MC-00281 (Honorable John C. Lifland) Donald A. Robinson, (argued) Robinson & Livelli, Newark, NJ, Attorney for Appellant, Newark Morning Ledger Co., Publisher of The Star-Ledger.

Demetra Lambros, Esquire (argued) James E. Castello, Esquire United States Department of Justice Criminal Division-Appellate Section, Washington, D.C., Attorneys for Appellee, United States of America.

Theodore V. Wells, Jr., Esquire (argued) Paul Weiss Rifkind Wharton & Garrison New York, NY, David E. Barry, Esquire Pierce Atwood, Portland, ME, Attorneys for Appellee, John Doe 1

Adam S. Hoffinger, Esquire Robert A. Salerno, Esquire Piper Marbury Rudnick & Wolfe, Washington, D.C., Attorneys for Appellee, John Doe 2.

Thomas J. Cafferty, Esquire Arlene M. Turinchak, Esquire McGimpsey & Cafferty, Somerset, NJ, Attorneys for Amicus Curiae-Appellant, The New Jersey Press Association, The Associated Press, Bloomberg, LP

Philadelphia Newspapers, Inc. The New York Times.

Katherine Hatton, Esquire Philadelphia Newspapers, Inc. Legal Department, Philadelphia, PA, Attorney for Amicus Curiae-Appellant, Philadelphia Newspapers, Inc.

Before: Scirica, Garth and Stapleton, Circuit Judges

OPINION FOR THE COURT

Scirica, Circuit Judge

The issue on appeal is whether the District Court erred in temporarily sealing the initial filings and hearings concerning a contempt motion filed under Fed. R. Crim. P. 6(e)(2) pending its determination whether secret grand jury material would be disclosed. Our opinion in United States v. Smith, 123 F.3d 140 (3d Cir. 1997), provides the rule of decision in this matter. We will affirm.

I.

On February 13, 2001, the Newark Star Ledger discovered that a motion had been filed under seal in District Court. The Star Ledger believed the motion sought contempt proceedings against United States Justice Department attorneys or agents for leaking secret grand jury information to the media, in violation of Fed. R. Crim. P. 6(e)(2).¹ The Star Ledger filed a motion to intervene and to unseal the motion. After granting the motion to intervene, the District Court conducted a bifurcated hearing to determine whether the motion should be unsealed and whether subsequent filings and proceedings should be sealed. The first hearing occurred in a closed session.

After the initial hearing, the court opened the proceedings stating it had made a "preliminary determination to deny access to all the filings and proceedings" holding that "at least for now [it] should not and must not open [the] proceedings to the public because of its grand jury context." The Star Ledger contended the motion for contempt proceedings did not implicate grand jury information. For this reason, it argued the motion and proceedings were entitled to a presumption of openness under Fed. R. Crim. P. 6 (e)(5).² But the District Court held the filings "related to grand jury proceedings" and under Fed. R. Crim. P. 6(e)(6)³ and United States v. Smith, 123 F.3d 140 (3d Cir. 1997), they must remain sealed pending a determination whether secret grand jury information was implicated. After making this determination, the District Court stated it would open all non-secret filings and proceedings. ⁴ The Star Ledger appealed.⁵

II.

The District Court had jurisdiction under 18 U.S.C. S 401. We have jurisdiction over a final order denying access to court records and proceedings under 28 U.S.C. S 1291. United States v. Antar, 38 F .3d 1348, 1355-56 (3d Cir. 1994) ("[O]rders either granting or denying access to portions of a trial record are appealable as final orders pursuant to S 1291."); United States v. Simone, 14 F.3d 833, 836 (3d Cir. 1994) (court order denying public access to post-trial proceedings was final order and appealable under S 1291). We exercise plenary r review over the District Court's decision to deny access to and seal trial records. Antar, 38 F.3d at 1357. Although we generally r review factual findings for clear error, when the First Amendment is implicated, we exercise independent appellate review. On a First Amendment right of access claim, our scope of r review of factual findings "is substantially broader than that for abuse of discretion." Smith, 123 F .3d at 146.

III.

The Supreme Court has recognized a First Amendment right of access to most criminal proceedings. See, e.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 578 (1980); Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978) ("It is clear that the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents."); Antar, 38 F.3d at 1359-60. This right of access promotes important societal interests including confidence in the judicial system. See, e.g. , Press-Enterprise Co. v. Super. Ct., 478 U.S. 1, 11-12 (1986); Leucadia, Inc. v. Applied Extrusion Techs., Inc., 998 F .2d 157, 161 (3d Cir. 1993). We have extended this right of access to many pre-trial criminal proceedings including pre-trial suppression, due process, and entrapment hearings.⁶ United States v. Criden, 675 F.2d 550, 554 (3d Cir . 1982). But this right of access is not unlimited. Under certain circumstances the right of public access may be outweighed by countervailing principles.⁷ United States v. Smith, 787 F.2d 111, 114 (3d Cir. 1986). Among the few limitations to the First Amendment right of access in criminal hearings, none is more important than protecting grand jury secrecy. Douglas Oil Co. of Cal. v. Petrol Stops N.W. , 441 U.S. 211, 218 (1979). The Supreme Court has held that grand jury proceedings must remain secret noting,

[S]everal distinct interests [are] served by safeguarding the confidentiality of grand jury proceedings. First, if preindictment proceedings were made public, many prospective witnesses would be hesitant to come forward voluntarily, knowing that those against whom they testify would be aware of that testimony. Moreover, witnesses who appear before the grand jury would be less likely to testify fully and frankly, as they would be open to retribution as well as inducements. There also would be the risk that those about to be indicted would flee, or would try to influence individual jurors to vote against indictment. Finally, by preserving the secrecy of the proceedings, we assure that persons who are accused but exonerated by the grand jury will not be held up to public ridicule.

Douglas Oil Co., 441 U.S. at 218-19 (internal citations omitted).

In United States v. Smith, 123 F.3d 140 (3d Cir. 1997), we held the broad secrecy historically afforded to grand jury proceedings should, in certain circumstances, extend to non-grand jury proceedings when secret grand jury material may be disclosed. We also held there is no presumptive First Amendment or common law right of access to court documents that involve materials presented before a grand jury, including initial motions, filings and proceedings alleging contempt under Fed. R. Crim. P. 6(e). Smith, 123 F.3d at 150 ("[I]f the district court seals a proceeding or brief because it would disclose grand jury matters, there is no First Amendment right of access to it even if it also concerns possible improper actions by government officials.").

A.

In Smith, the Newark Star Ledger sought access to records and proceedings in the sentencing phase of a criminal proceeding. The underlying criminal case in Smith involved participants in a state lottery kickback scheme who were convicted on various felony charges. Before sentencing, the government submitted its sentencing recommendations to the court. The memorandum also referenced other uncharged individuals allegedly involved in the kickback scheme. After submitting the memorandum to the court, the government made the memorandum public by placing it on its website and providing copies to the media.

The uncharged individuals maintained the government's disclosure of the memorandum which included the identity of grand jury witnesses violated Fed. R. Crim. P . 6(e). The District Court ordered the government to remove the sentence memorandum from its website pending a determination whether it actually contained grand jury material. The court also ordered the parties to file under seal any further motions and documents concerning the potential Fed. R. Crim. P. 6(e) violation. The court stated that it would determine at a later date "whether there is sufficient implication of Rule 6(e) . . . to warrant closure" of future proceedings. Smith, 123 F .3d at 145. Subsequently, the government and the uncharged individuals filed briefs under seal.

The Newark Star Ledger moved to intervene to obtain the parties' motions and filings and to have access to further proceedings. Denying the newspaper's request for access, the court reasoned "the very reason[the briefs are] sealed is there may be material in them which affects Rule 6(e)." Id. After review, the court said it would disclose all non-grand jury materials. The Star Ledger appealed contending it had a First Amendment and common law right of access to all this information.

Recognizing the First Amendment right of access to pre-trial criminal proceedings, we held there was no right of access when grand jury materials are involved, stating that

Douglas Oil [ ] implicitly makes clear that grand jury proceedings are not subject to a First Amendment right of access under the test of `experience and logic.' Historically, such proceedings have been closed to the public. Moreover, public access to grand jury proceedings would hinder, rather than further, the efficient functioning of the proceedings.

Id. at 148. Observing that the secrecy of grand jury...