701 F.2d 354 (5th Cir. 1983), 82-1263, United States v. Chagra

Docket Nº:82-1263, 82-1264.
Citation:701 F.2d 354
Party Name:UNITED STATES of America, Plaintiff, v. Joseph Salim CHAGRA, Defendant-Appellee, v. SAN ANTONIO LIGHT DIVISION OF the HEARST CORP., the Express-News Corporation and Tom Nelson, Movants-Appellants.
Case Date:March 14, 1983
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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701 F.2d 354 (5th Cir. 1983)

UNITED STATES of America, Plaintiff,


Joseph Salim CHAGRA, Defendant-Appellee,



Express-News Corporation and Tom Nelson, Movants-Appellants.

Nos. 82-1263, 82-1264.

United States Court of Appeals, Fifth Circuit

March 14, 1983

Page 355

Judith R. Blakeway, San Antonio, Tex., for San Antonio Light Div.

Mark Cannan, San Antonio, Tex., for The Express-News Corp. and Nelson.

Tonda F. Rush, Washington, D.C., for amicus curiae Reporters Committee for Freedom of Press.

Joseph (Sib) Abraham, Jr., Charles L. Roberts, El Paso, Tex., for Chagra.

Seagal V. Wheatley, San Antonio, Tex., for amicus curiae Seagal V. Wheatley.

Appeals from the United States District Court for the Western District of Texas.

Before RUBIN and JOHNSON, Circuit Judges, and DUPLANTIER[*], District Judge.

ALVIN B. RUBIN, Circuit Judge:

The first amendment to the Constitution accords the public and the press the right of access to a criminal trial. We here consider whether that guarantee forbids a district court's closure of a pretrial bail reduction hearing when the defendant, to protect his right to a fair trial, requests that the hearing be held in camera.


In 1979, United States District Judge John H. Wood, Jr. was shot in the back and

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killed as he prepared to enter his automobile outside his home in San Antonio, Texas. His assassination was immediately headline news in San Antonio and throughout much of the nation. For almost three years thereafter the FBI conducted what the press characterized as "the most extensive FBI investigation since the assassination of former President John F. Kennedy." The FBI agent who directed the investigation was quoted as describing the Wood murder as "the crime of the century." The press coverage of the murder and its investigation was described by reporters for San Antonio's major newspapers as "very extensive" and "intensive."

On April 15, 1982, an indictment was returned alleging that El Paso attorney Joseph S. Chagra, his brother Jamiel A. ("Jimmy") Chagra, his brother's wife, Elizabeth Nichols Chagra, Charles Harrelson, and Harrelson's wife, Jo Ann Harrelson, conspired to murder Judge Wood. The indictment also charged Harrelson and Jimmy Chagra with the actual murder of Judge Wood and accused all the defendants of conspiracy to obstruct justice. A separate indictment charged Joseph Chagra, Jimmy Chagra, Elizabeth Chagra and Leon Nichols with conspiracy to defraud the United States and attempted evasion of income taxes. 1 Understandably and predictably, the press treated the indictment as a major news story, affording it front-page headline status and publishing numerous stories covering various aspects of the case.

Bail for Chagra was set at $1,500,000 in the case involving the murder of Judge Wood and $100,000 in the income tax case. When Chagra moved for its reduction, a hearing on the motion was assigned to a United States Magistrate. The hearing commenced in open court. Chagra orally moved to bar the United States from introducing a statement made by him on March 20, 1982, to Federal Bureau of Investigation agents. He claimed that the statement was made during plea negotiations. 2 Chagra asked the magistrate to close the hearing on his motion because the evidence adduced there would, if publicized, prejudice his right to a fair trial. Reporters for the San Antonio Light and the San Antonio Express News objected to closure of the hearing. The government took no position. The magistrate ordered a portion of the hearing closed and sealed the transcript of the closed proceedings. The hearing was closed from 10:30 a.m. on April 22, 1982, until shortly after noon on the same day. The magistrate opened the remainder of that day's hearing to the public. However, he announced his intention to hear additional matters in camera the next morning.

The next day the magistrate held a hearing on the newspapers' objections to closure. Chagra again moved to close the bail reduction hearing during testimony concerning the admissibility of his March 20 statement. After hearing argument by counsel for the two newspapers and the defendant, the magistrate closed the remainder of the bail reduction hearing. He completed the hearing that day, certifying to the district court his conclusion that Chagra's statement to the FBI was admissible for the purpose of determining appropriate conditions of pretrial release.

Both newspapers asked the district court to vacate the magistrate's closure order, to

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make the sealed transcripts public, and to direct the magistrate to conduct all further proceedings in the Chagra case publicly. On April 27, 1982, Chief District Judge William S. Sessions heard arguments on the newspapers' motions. On April 29, Chief Judge Sessions entered a Memorandum Opinion and Order, concluding that there was "not a sufficient evidentiary basis in the record to support the Magistrate's order closing the courtroom to the members of the public and press," and that "the Magistrate did not give adequate consideration to the alternatives to closure that would protect the fair trial rights of the Defendant[s] ...." Accordingly, the court scheduled a hearing to accept evidence on the propriety of the magistrate's closure order.

The hearing was held on May 3, 1982. The newspapers were afforded a full opportunity to participate. On May 4, 1982, the district judge ruled that the magistrate's closure order was justified. In an opinion that followed his understanding of Justice Blackmun's dissenting opinion in Gannett Co. v. DePasquale, 443 U.S. 368, 406, 99 S.Ct. 2898, 2919, 61 L.Ed.2d 608, 638 (1979), he first concluded that public dissemination of the exhibits and transcripts of the closed bond reduction hearing would create a serious threat to Chagra's right to a fair trial. He found that substantial publicity concerning the Chagra case had been disseminated in San Antonio and throughout the state. In addition, he found that "extensive publicity" would likely continue. Noting the "speculative and accusatory" nature of the publicity already surrounding the case, the court anticipated substantial difficulty in empaneling an impartial jury.

The district judge further determined that the newspapers' circulation was concentrated in communities where most of the prospective jurors for a trial in San Antonio resided. Therefore, he thought it "very likely" that the evidence adduced at the closed hearings, if released, would reach a "substantial percentage" of the prospective jurors. Moreover, the district judge concluded that the sealed record contained information "of a highly prejudicial and inflammatory nature" that "could not be easily purged through voir dire."

Concluding that public dissemination of the information in the closed hearing would "in reasonable likelihood create a serious threat" to Chagra's fair trial right, the district judge then considered the alternatives to closure, principally moving the trial elsewhere in Texas, and found "a strong likelihood that they would not adequately protect the Defendant's fair trial rights." Finally, the district judge considered whether closure would be effective in protecting against the perceived harm to Chagra's fair trial right. He decided that it would. Recognizing that he should impose only those restrictions necessary to assure a fair trial, the judge declared that the magistrate properly closed portions of the bail reduction hearing and ordered the transcript of those hearings to remain sealed.

Later Chagra and the other defendants each moved for a change of venue. The district judge deferred final ruling on these motions. Explaining the reasons for his action fully in a fourteen-page order, he stated that he would first attempt to select a fair and impartial jury through voir dire in the San Antonio Division. If successful, he would then deny the motions. If unsuccessful, he would reconsider the motions and determine an appropriate forum. Portions of the resumed bond hearing were closed on May 4, 1982. Segments of hearings on other pretrial motions, ranging from 15 minutes to one hour and 45 minutes, were closed at various times from August 4, through August 13, 1982. However, these closures are not challenged in this appeal.

Then the shape of the case changed completely. A summary of Chagra's March 20 statement was introduced and made public at a pretrial hearing held on April 12, 1982. Moreover, after this appeal was filed, Chagra entered a plea of guilty to conspiracy to murder. The plea was pursuant to a plea bargain in which it was agreed that Chagra would testify against all the defendants charged with Judge Wood's murder except his brother and would, in return, receive a

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ten-year sentence. A jury was selected for the trial of defendants Elizabeth Chagra, Charles Harrelson and Jo Ann Harrelson. The judge, therefore, denied their motion for a change of venue. Venue for the murder trial of Jimmy Chagra was changed to Jacksonville, Florida.


We consider first several preliminary questions, starting with the appealability of the order, for it was, of course, interlocutory. See In re Chicken Antitrust Litigation, 669 F.2d 228, 235 (5th Cir.1982). However, some orders entered during the course of a trial are final in effect and appealable by virtue of what is known as the collateral order doctrine. Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The decisive factors are whether the order at issue: (1) is a final disposition by the district court; (2) is collateral to the rights asserted in the main action; (3) entails a risk of irreparable injury; and (4) involves a serious and unsettled question of law. United States v. Gurney, 558 F.2d 1202, 1206-07 (5th Cir.1977), cert. denied, 435 U.S. 968, 98 S.Ct. 1606, 56...

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