650 F.2d 293 (D.C. Cir. 1980), 79-2312, United States v. Hubbard

Docket Nº:79-2312, 79-2313 and 79-2324.
Citation:650 F.2d 293
Party Name:UNITED STATES of America v. Mary Sue HUBBARD et al., Appellants. UNITED STATES of America v. Mary Sue HUBBARD et al. Church of Scientology of California, Appellant. CHURCH OF SCIENTOLOGY OF CALIFORNIA, Appellant, v. UNITED STATES of America et al.
Case Date:July 24, 1980
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 293

650 F.2d 293 (D.C. Cir. 1980)

UNITED STATES of America

v.

Mary Sue HUBBARD et al., Appellants.

UNITED STATES of America

v.

Mary Sue HUBBARD et al.

Church of Scientology of California, Appellant.

CHURCH OF SCIENTOLOGY OF CALIFORNIA, Appellant,

v.

UNITED STATES of America et al.

Nos. 79-2312, 79-2313 and 79-2324.

United States Court of Appeals, District of Columbia Circuit

July 24, 1980

Argued Feb. 21, 1980.

Supplemental Opinion Feb. 9, 1981.

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Appeals from the United States District Court for the District of Columbia (D.C. Criminal No. 78-401 and D.C. Civil Action No. 79-2975).

Earl C. Dudley, Jr., Washington, D. C., with whom Michael Nussbaum, Washington, D. C., was on brief, for appellants Hermann and Raymond.

Leonard B. Boudin, New York City, was on brief, for appellant Hubbard.

Philip J. Hirschkop, Alexandria, Va., was on brief, for appellants Heldt and Snider.

Roger Zuckerman, Washington, D. C., was on brief, for appellants Weigand and Willardson.

John Kenneth Zwerling, Alexandria, Va., was on brief, for appellant Wolfe.

Leonard J. Koenick, Washington, D. C., was on brief, for appellant Thomas.

Leonard B. Boudin, New York City, for appellant Church of Scientology of California.

Steven C. Tabackman, Asst. U. S. Atty., Washington, D. C., with whom Charles F. C.

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Ruff, U. S. Atty., Carl S. Rauh, Principal Asst. U. S. Atty., John A. Terry, John R. Fisher, Keith A. O'Donnell, Michael W. Farrell, Raymond Banoun, Judith Hetherton and Timothy J. Reardon, III, Asst. U. S. Attys., Washington, D. C., were on brief, for appellee.

George K. Rahdert, St. Petersburg, Fla., and James L. Yacavone, III, Clearwater, Fla., were on brief, for amici curiae Clearwater Newspapers, Inc. and Times Publishing Co.

Also, Ronald G. Precup, Washington, D. C., entered an appearance, for appellants Hermann and Raymond.

Leonard S. Rubenstein and Geraldine R. Gennet, Alexandria, Va., entered appearances, for appellants Heldt and Snider.

Roger Spaeder and Lawrence A. Katz, Washington, D. C., entered appearances, for appellants Weigand and Willardson.

Richard McMillin, Washington, D. C., entered an appearance, for appellant Thomas.

Before ROBINSON, MacKINNON and WALD, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD.

Dissenting opinion filed by Circuit Judge MacKINNON.

WALD, Circuit Judge:

We confront the issue here of whether and on what grounds a district court judge may make available to the public papers seized from a third party nondefendant, subsequently introduced under seal only in a pretrial suppression hearing and only for the purpose of showing that the search and seizure were unlawful. As far as we have been able to determine, there is no precedent on the issue. The seized documents were made available to the public on the eve of the defendants' convictions under a disposition agreement and at a time when the trial judge's ruling denying suppression of the seized materials was certain to be appealed. Three reasons were given for making these documents publicly available: "there is a right in the public to know what occurs before the courts;" "there is a public interest in access to court records;" and "sunshine is the best disinfectant." 1 When the unsealing decision was announced, the third party nondefendant sought but was denied leave to intervene to assert its interest in retaining the documents under seal. It then moved the court for immediate return of the documents and for an order temporarily enjoining public access pending

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their return. These motions were also denied.

After studying the matter in depth, we have determined to stay the unsealing orders appealed in No. 79-2312, to vacate the orders denying intervention and temporary injunctive relief appealed in Nos. 79-2313 and 79-2324, 2 and to remand to the trial court for supplemental proceedings and transmission to this court of a more particularized rationale, under guidelines discussed below. We retain jurisdiction over the matter and order all documents at issue here sealed pending our decision following remand. 3

I. BACKGROUND

Owing to the litigiousness of the parties the full procedural background of these appeals is quite complex, but the essential facts are simply stated. Close to three years ago the government seized approximately 50,000 documents 4 from two Los Angeles sites of the Church of Scientology of California. A motion made by the Church to return the documents was dismissed by a federal district court in California, 5 although various actions of the parties and the courts in California restricted public access to the documents held by or subject to the proceedings of that court. 6

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More than two years after the seizures a District of Columbia grand jury returned indictments against eleven officials or employees of the Church. Seeking to suppress the seized documents as the fruits of an illegally executed "general" search, the nine defendants present before the court 7 urged Judge Richey, to whom the criminal case was assigned, to examine a complete set of the documents seized. Because they were needed for this purpose, copies of all documents held by the district court in California were transferred to the custody of the district court here. From the discussions preceding transfer it is clear that everyone concerned was under the impression that all documents to be transferred would be held under seal by the clerk of this court. 8 No separate written sealing order was entered, but before the transfer took place, Judge Richey entered repeated oral sealing orders, 9 although usually with the caveat that

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he retained the right to "unseal" the documents at a later time. 10

The legal consequence of the position taken by the defendants in pressing the full set of documents upon the trial judge during the suppression hearing is that the documents became part of the "record" of the case. 11 We think this conclusion is consist

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ent with the contemporaneous understanding of the parties and the district court. 12 However, only a small number of the documents were referred to individually by nature or content by either witnesses in the suppression hearing or by the trial judge in his ultimate decision on the motion. 13 It is in fact unclear whether and to what extent the trial judge examined the documents before he denied defendants' suppression motion. 14

Shortly after entry of the decision upholding the search, the government and the defendants negotiated a disposition of charges and a stipulated record consisting of approximately 200 documents. As part of the negotiations the government agreed not to disseminate publicly any documents seized which were not part of the stipulated record. The trial court enforced the negotiated disposition; 15 the case was tried to the

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bench on the stipulated record and guilty verdicts were returned. 16

After the disposition agreement was enforced but one day before the guilty verdicts were entered, the trial judge issued an order making publicly available all documents seized except those that the government had earlier "returned" to the Church as unnecessary to the prosecution, 17 if they were not also used by the defendants in the examination of witnesses at the suppression hearing. 18 When this order was filed, the Church sought to intervene in the criminal case to "protect the constitutional rights of the Church and its members in the privacy of their papers;" 19 it also filed a motion captioned as a separate civil proceeding, seeking immediate return of the seized documents and an order temporarily restraining the court clerk from disseminating or disclosing the documents to anyone pending a decision on the motion for return. 20 The individual defendants moved the court for reconsideration. These motions were denied. Applications by the Church and the individual defendants for stay of the unsealing order and a petition by the Church for mandamus relief were denied by motions panels of this court. Rehearing en banc of the stay applications was also denied, no judge having called for a vote on the application for rehearing. Finally Chief Justice Burger denied applications for stay submitted to him as Circuit Justice.

Before us now are the consolidated appeals from the orders entered in the district

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court. We do not understand either the Church or the individual defendants seriously to contest the "unsealing" of documents which are part of the stipulated record or which were used by defendants in the examination of witnesses at the suppression hearing or which were referred to by the trial judge in his opinion on the motion to suppress. 21 At issue, then, is the substantive and procedural propriety of the judge's orders with respect to the balance of the documents unsealed. 22

II. THE PROCEDURAL RIGHTS OF THE CHURCH AND THE INDIVIDUAL DEFENDANTS

A. Introduction

At the outset we are called upon to determine the appealability of the orders entered in the district court. In our judgment a determination of the orders' appealability turns on a proper understanding of the interests asserted in the district court and on the relationship of these interests to the criminal investigation and prosecution to which they are undeniably connected. We thus turn our attention first to an examination of the nature of the interests asserted in the district court, the procedures attempted to be employed for the assertion of those interests and the procedures which could have been employed, given our assessment of the nature of the interests asserted and their relationship to the criminal case. We then return...

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