Newspapers v. Cardenas–guillen

• Decision Date: 09 June 2011
• Docket Number: No. 10–40221.,10–40221.
• Citation: 39 Media L. Rep. 1785,641 F.3d 168
• Parties: HEARST NEWSPAPERS, L.L.C., doing business as Houston Chronicle, Intervenor Plaintiff–Appellant.United States of America, Plaintiff–Appellee,v.Oziel Cardenas–Guillen, Defendant–Appellee,v.Hearst Newspapers, L.L.C., doing business as Houston Chronicle, Intervenor–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

641 F.3d 168

39 Media L. Rep. 1785

HEARST NEWSPAPERS, L.L.C., doing business as Houston Chronicle, Intervenor Plaintiff–Appellant.United States of America, Plaintiff–Appellee,

v.Oziel Cardenas–Guillen, Defendant–Appellee,

v.Hearst Newspapers, L.L.C., doing business as Houston Chronicle, Intervenor–Appellant.

No. 10–40221.

United States Court of Appeals, Fifth Circuit.

May 17, 2011.As Revised June 9, 2011.

Toni L. Trevino (argued), Amy Howell Alaniz, Asst. U.S. Attys., McAllen, TX, James Lee Turner, Asst. U.S. Atty., Houston, TX, for Plaintiff–Appellee.Jonathan R. Donnellan (argued), Ravi Viren Sitwala, Hearst Corp., New York City, NY, for Intervenor Plaintiff–Appellant.Michael Wayne Ramsey and Chip Brandon Lewis, Law Office of Chip B. Lewis, Houston, TX, Crispin Quintanilla, III, Garcia, Quintanilla & Palacios, Roberto Jose Yzaguirre, Yzaguirre & Chapa, McAllen, TX, for Defendant–Appellee.Appeal from the United States District Court for the Southern District of Texas.Before BARKSDALE, DENNIS and HAYNES, Circuit Judges.DENNIS, Circuit Judge:

This case involves a district court's order to close the sentencing proceeding of a drug cartel leader without first giving the press and public notice and an opportunity to be heard regarding the decision to close the hearing. We conclude that the press and public have a First Amendment right of access to sentencing hearings, and that the district court should have given the press and public notice and an opportunity to be heard before closing the sentencing proceeding in this case.

BACKGROUND

Oziel Cardenas–Guillen, the former leader of the Gulf Cartel, a notorious Mexican drug cartel, was arrested in Mexico in 2003. At the time, according to the government, Cardenas–Guillen was considered “one of the most wanted, feared, and violent drug traffickers in the world,” and was “widely believed to be partly responsible for the ongoing drug trafficking wars and ‘bloodbaths' along the Mexican border, resulting in the deaths of approximately 2000 persons.” Even while incarcerated in Mexico, he “reportedly continued to coordinate the activities of his organization from jail.”

In 2007, the United States took custody of Cardenas–Guillen. He was charged, inter alia, with involvement in conspiracies to distribute large quantities of marijuana and cocaine, violating the continuing-criminal-enterprise statute, 21 U.S.C. § 848 (also known as the “drug kingpin statute”), and threatening federal officers. The case was assigned to a district court in the Brownsville Division of the Southern District of Texas.

The government moved to transfer the venue for the criminal trial from Brownsville, Texas, to another location. Among other reasons, the government cited concerns about being able to ensure the security of personnel and civilians, due to the proximity of Brownsville to the Mexican border. The government enclosed a letter from the United States Marshals Service explaining that Houston would be the best venue for holding the trial. Cardenas–Guillen did not oppose the motion, and the district court granted the transfer motion, directing that the case be transferred to Houston. The case proceeded slowly, with almost all of the filings being made under seal. Hearst Newspapers, L.L.C., doing business as the Houston Chronicle (hereinafter “the Chronicle”), alleges that many of the filings were sealed without following proper procedures.

On October 30, 2009, the Chronicle sent a letter to the district court, making several requests. With regard to any future proceedings, the Chronicle requested that the district court give notice and an opportunity to be heard before closing such proceedings, and, if the court decided to close a proceeding, to narrowly tailor such a closure and support its decision with on-the-record findings. The Chronicle also requested that the court unseal any sealed documents or make on-the-record findings regarding why those documents remained under seal, and narrowly tailor any sealing. In response, the district court ordered the parties to explain why previously sealed documents should remain under seal. The parties conceded that some documents did not need to remain sealed, but argued that others should remain under seal until the conclusion of the case.

On February 9, 2010, the Chronicle moved to intervene and requested that any uncontested documents be unsealed immediately, that the docket be updated to provide some indication of documents that had been sealed, that the government's sealed memoranda be unsealed at least in redacted form so that the Chronicle could respond, and that the court narrowly tailor any sealing through redaction and enter specific findings as to documents that remained under seal. The Chronicle attached to the motion its letter of October 30, 2009. At some point, Cardenas–Guillen agreed to plead guilty to the charges against him, but this fact was not made public. On February 18, 2010, the government moved to close his sentencing hearing for reasons of public safety, and also moved to deprive the public of notice that the hearing was taking place. The government attached to the motion the supporting affidavit of George Hephner, the Supervisory Deputy United States Marshal for the Houston Division Operations Section. The next day, without additional proceedings, the district court granted the motion in a sealed order. The order expressly stated that it would not be unsealed until after the sentencing hearing took place. The district court also sealed the government's motion.

The court scheduled the sentencing for February 25, 2010. A local television station received word that the trial of Cardenas–Guillen would occur on that date and inquired of the court as to whether that information was correct. After consulting with the United States Marshals Service, the district court covertly rescheduled the sentencing hearing for February 24, 2010.

During the sentencing hearing on that day, a Chronicle reporter discovered a closed courtroom where the proceeding was being held and attempted to gain access. An attorney for the Chronicle joined the reporter and filed a handwritten motion requesting the district court to open the sentencing hearing and to give the Chronicle an opportunity to be heard before the closed hearing was completed. The district court was aware of the Chronicle's efforts to access the proceedings and stated during the hearing that “in spite of all the efforts to ensure that this hearing not be noticed by the media, I am told that there is a reporter from the Houston Chronicle who is, as I speak, drafting a motion regarding his request to be heard—or to be present during the—the hearing.” The district court declined to decide the motion at that time, and instead continued with the closed sentencing proceeding. Although the proceeding was sealed, the primary case agents and victims, as well as Cardenas–Guillen's wife and daughter, were permitted to be present. Later that same day, after the sentencing proceeding had been completed, the district court denied the Chronicle's motion as moot.

At the sentencing, the district court accepted Cardenas–Guillen's guilty pleas and the plea agreement between him and the government. The court then sentenced Cardenas–Guillen, in accord with the plea agreement, to (1) 25 years on one count of conspiracy to possess with intent to distribute both cocaine and marijuana, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A); (2) 5 years each on three counts of threatening to assault and murder federal agents, in violation of 18 U.S.C. §§ 115 and 2; and (3) 20 years on a fifth count for conspiracy to launder monetary instruments, in violation of 18 U.S.C. § 1956(a)(1)(A)(i),(a)(2)(A), and (h). The district court ordered that all the sentences would run concurrently. The district court also ordered that Cardenas–Guillen serve supervised release terms of 5 years on the count of conspiracy to possess with intent to distribute both cocaine and marijuana, and 3 years as to each of the other four counts, all to run concurrently. Finally, the district court ordered Cardenas–Guillen to pay a fine of $100,000 and special assessments totaling $500, and entered a preliminary order of forfeiture of $50 million. The district court also indicated that it would docket the record of the hearing, which would make public the fact that a sentencing hearing had occurred, once it was advised by the United States Marshals Service that doing so would be safe.

The government explains in its brief, and the district court docket confirms, that “[w]ithin hours of the sentencing hearing, the hearing was docketed.” Gov. Br. 11. In addition, “the recording of the hearing and the transcript of the hearing were [made] available to the public....” Id. The docket also shows that the Chronicle ordered a copy of the transcript, which was completed on February 25, 2010, the day after the sentencing proceeding.

On February 26, 2010, two days after the sentencing hearing, the Chronicle filed a second motion to intervene. On that same date, the district court, inter alia, granted the motion to intervene and denied the Chronicle's request for public notice of all future hearings and for an opportunity to be heard if closure were contemplated.

On March 2, 2010, the district court issued an order amending its February 24, 2010 order, to further explain the reasoning of its February 24, 2010 order. It also added that in denying the Chronicle's motion to open the sentencing proceeding and to be heard before the closure of the sentencing proceeding, it had considered the filings submitted by the government, as well as the Chronicle's February 9, 2010 motion to intervene.

The Chronicle timely appealed. On appeal, the Chronicle challenges (1) the district court's order of February 24, 2010 (as amended by the March 2, 2010 order), denying as moot the Chronicle's request to open the sentencing proceeding; (2) the...