321 F.3d 174 (1st Cir. 2003), 02-2340, In re Boston Herald, Inc.

Docket Nº:02-2340, 02-2098.
Citation:321 F.3d 174
Party Name:In re BOSTON HERALD, INC., Petitioner. United States, v. John J. Connolly, Jr., Defendant, Appellee. Boston Herald, Inc. Intervenor, Appellant.
Case Date:February 25, 2003
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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321 F.3d 174 (1st Cir. 2003)

In re BOSTON HERALD, INC., Petitioner.

United States,


John J. Connolly, Jr., Defendant, Appellee.

Boston Herald, Inc. Intervenor, Appellant.

Nos. 02-2340, 02-2098.

United States Court of Appeals, First Circuit

February 25, 2003

Heard Dec. 12, 2002.

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Elizabeth A. Ritvo with whom M. Robert Dushman, Jeffrey P. Hermes, and Brown Rudnick Berlack Israels LLP were on brief for petitioner-appellant.

Andrew Nathanson with whom Tracy A. Miner, John J. Tangney, Jr., and Mintz Levin Cohn Ferris Glovsky and Popeo, P.C. were on brief for respondent-appellee (John J. Connolly, Jr.).

Before LYNCH, LIPEZ, and HOWARD, Circuit Judges.

LYNCH, Circuit Judge.

John J. Connolly, Jr., the defendant in a highly publicized criminal trial, applied under the Criminal Justice Act (CJA), 18 U.S.C. § 3006A (2000), for government funding for a portion of his attorneys' fees and legal expenses. Connolly had informed the court that he was already in debt to the counsel he had previously retained, and could no longer afford to pay his legal bills. He submitted financial affidavits and an additional document summarizing his total legal debt. The court granted him CJA assistance and, in response to his motions, placed the documents he had submitted under seal. After Connolly's conviction, the Boston Herald, one of Boston's two major daily newspapers, sought to intervene in the case and to unseal these financial documents, arguing

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that it had a right of access to them under both the First Amendment and the common law. Connolly opposed. A magistrate judge allowed the intervention but denied the motion to unseal, and the district court affirmed. The Herald then filed both an interlocutory appeal and a petition for a writ of mandamus with this court.

No federal court of appeals, to our knowledge, has considered whether there is a right of access to the narrow category of documents at issue here: those submitted by a criminal defendant to show financial eligibility for CJA funds. We conclude that there is no right of access to this category of documents under either the First Amendment or the common law. Even if there were a common law presumption of access, there was no abuse of discretion in denying access here. We affirm the district court and deny mandamus.


Connolly is a former FBI agent who was accused of impropriety in his relationships with informants, including alleged organized crime figures such as James "Whitey" Bulger and Stephen Flemmi. More detail about the earlier chapters of this saga can be found in United States v. Flemmi 225 F.3d 78 (1st Cir. 2000); United States v. Salemme, 91 F.Supp.2d 141 (D.Mass.1999); and United States v. Salemme, 978 F.Supp. 343 (D.Mass.1997). Information about Connolly's relationships was extracted from a reluctant government by a persistent trial judge who heard the earlier criminal cases. Connolly's prosecution and trial garnered extensive media coverage and public interest nationwide, especially in the Boston area, where he had been employed by the FBI. On May 28, 2002, Connolly was convicted of racketeering and obstruction of justice in the U.S. District Court for the District of Massachusetts. He has appealed his conviction, and that appeal remains pending separately.

At a pretrial hearing on March 5, 2002, Connolly's attorney informed the district court that Connolly owed defense counsel substantial unpaid legal fees. The court noted that, with a trial in the complex case due to begin only two months later, substitution of counsel was not feasible. To avoid delay, the court raised the possibility that the attorney could be appointed and paid under the CJA if Connolly could demonstrate his eligibility. The CJA applies to "any person [who is] financially unable to obtain adequate representation." 18 U.S.C. § 3006A(a).

Two days later, Connolly submitted an application for CJA assistance to the court's Office of Pre-Trial Services. The application was referred to a magistrate judge, who appointed Connolly's lawyer under the CJA in a written order on March 11, stating, "[I]t appears that although the defendant possesses a number of substantial assets, the total of these assets is less than half of his current liabilities." Most of these liabilities, the order said, were legal bills that Connolly had already incurred. The order limited funding to cover only legal services provided after March 5, when counsel first informed the court of Connolly's financial problems, and it recommended that the court reevaluate Connolly's eligibility at the close of the case. The compensation rate for CJA-appointed counsel is significantly below the prevailing private rates for attorneys in Boston. As of May 1, 2002, shortly before Connolly's trial began, it was $90 an hour, and before then it was $75 an hour for in-court work and $55 an hour for work performed outside court. There is a waivable maximum total of $5,200 per lawyer for a felony case. See 18 U.S.C.A. §§ 3006A(d)(2)-(3) (West Supp.2002).

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The magistrate judge also granted Connolly's motions to seal three documents that he had submitted to demonstrate his CJA eligibility. The orders to seal these documents were issued without written findings; there was no objection to them at that time. Two of the three sealed documents are an original and an amended version of Connolly's completed CJA Form 23 (the "CJA forms"), a standard "financial affidavit" signed under penalty of perjury. A blank copy of Form 23 is appended to this opinion. It requires comprehensive financial data, including employment income of the defendant and his or her spouse; all other income, cash, and property; identification of the defendant's dependents; and all obligations, debts, and monthly bills. The third document, submitted in response to a question from the magistrate judge, states the total of Connolly's outstanding legal fees from the date of his indictment, December 22, 1999, through February 28, 2002. The magistrate judge's written order appointing Connolly's lawyer under the CJA has always remained public.

On June 7, 2002, shortly after Connolly's conviction, the Herald filed a motion to intervene and to vacate the orders sealing the three documents. Connolly opposed the motion. The district court referred the matter to the same magistrate judge, who allowed the Herald to intervene. In a written order of June 24, 2002 he denied the Herald's motion to vacate the sealing order. United States v. Connolly, 206 F.Supp.2d 187, 188 (D.Mass.2002). On July 29, 2002, the district court overruled the Herald's objections to the magistrate judge's order.


A. Appellate Jurisdiction

A federal court must satisfy itself of its jurisdiction over a case, even if all parties urge there is jurisdiction. See BIW Deceived v. Local S6, Indus. Union of Marine & Shipbuilding Workers, 132 F.3d 824, 828 (1st Cir. 1997). To be sure of receiving prompt review, the Herald prudently made its request for access through two different procedural means, each raising the same substantive issues. On August 19, 2002, the Herald filed an interlocutory appeal from the district court's July 29 order; on October 21, it filed a petition for a writ of mandamus. We ordered the two cases consolidated and received briefing and oral argument from the Herald and Connolly.

An appeals court may exercise its power of advisory mandamus under the All Writs Act, 28 U.S.C. § 1651 (2000), when a petition "presents an issue of great importance and novelty, and one the resolution of which will likely aid other jurists, parties, and lawyers." In re Justices of Superior Court Dep't of Mass. Trial Court, 218 F.3d 11, 15 (1st Cir. 2000). This court has found advisory type of mandamus power present in at least two cases arising from similar procedural settings, where media outlets challenged limitations placed on their access to a proceeding or document by a district court. See In re Providence Journal Co., 293 F.3d 1, 9 (1st Cir. 2002); United States v. Hurley (In Re Globe Newspaper Co.), 920 F.2d 88, 90 (1st Cir. 1990). The conditions for mandamus review are similarly satisfied here.

The Herald also argues that we have jurisdiction over its interlocutory appeal under the collateral order doctrine. Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). This court recently left open the question of whether the doctrine applied in similar circumstances. See Providence

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Journal, 293 F.3d at 9. We find that it applies here. The standards for jurisdiction over a collateral order are "separability, finality, urgency, and importance." In re Cont'l Inv. Corp., 637 F.2d 1, 5 (1st Cir. 1980). All of these conditions are met here: the dispute concerning the Herald's access to documents is easily separated from the underlying criminal case; the order denying access disposes of the Herald's claim of an access right with finality; the news value of the information would decline over time, lending the interlocutory appeal urgency, see Soto v. Romero-Barcelo (In re San Juan Star Co.), 662 F.2d 108, 113 (1st Cir. 1981); and the Herald presents an important unsettled legal question. The order denying access is a collateral order, and we have jurisdiction over the interlocutory appeal as well as the mandamus petition.

B. The CJA and Disclosure

Before moving to the merits, we begin with some general context about the CJA and disclosure, which informs the analysis that follows.

The CJA provides for the government to pay for attorneys and related services at specified rates (usually well below market rates) on behalf of eligible criminal defendants. The statute applies to anyone who is "financially unable to obtain adequate...

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