729 F.2d 47 (1st Cir. 1984), 83-1866, In re Globe Newspaper Co.

Docket Nº:83-1866.
Citation:729 F.2d 47
Party Name:In re GLOBE NEWSPAPER COMPANY, Petitioner.
Case Date:March 09, 1984
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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729 F.2d 47 (1st Cir. 1984)


No. 83-1866.

United States Court of Appeals, First Circuit

March 9, 1984

Argued Jan. 4, 1984.

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James F. McHugh, Boston, Mass., with whom Ellen G. Grant, and Bingham, Dana & Gould, Boston, Mass., were on brief, for petitioner.

Janis Berry, Atty., Boston, Mass., with whom William F. Weld, U.S. Atty., Jeremiah T. O'Sullivan, Diane M. Kottmyer, and Ernest S. Dinisco, Sp. Attys., Dept. of Justice, Boston, Mass., were on brief, for the U.S.

Deborah Noonan, with whom Joseph T. Travaline, Burlington, Mass., was on brief, for respondent.

Before COFFIN, BOWNES and BREYER, Circuit Judges.

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COFFIN, Circuit Judge.

Globe Newspaper Company seeks access to the bail proceedings in the pending criminal case United States v. Angiulo. Because much of the evidence presented during the bail proceedings consisted of conversations intercepted by electronic surveillance carried out pursuant to the federal wiretap statute ("Title III"), the magistrate conducting the bail hearings closed portions of the hearings to the public and impounded the hearing transcripts and some of the documents presented during the hearings. The United States District Court for the District of Massachusetts affirmed the magistrate's closure and impoundment orders; Globe asks this court to dissolve the closure order and release the impounded documents. We find that the privacy and fair trial interests of the defendants outweigh the public's interest in having access to the bail proceedings, and so we deny Globe's petition.

I. Facts

On September 19, 1983, a Boston grand jury returned an indictment charging Angiulo and six others with criminal activity in violation of the anti-racketeering statute, 18 U.S.C. Sec. 1962(c) and (d). The predicate acts alleged in the indictment include conspiracy to murder a grand jury witness, obstruction of state law enforcement, and obstruction of justice. At a bail hearing on September 20, the government offered a memorandum and the affidavit of an FBI agent in support of its motion to deny bail to two of the defendants and to impose strict conditions of release on the others. Both documents contained excerpts from conversations intercepted during the electronic surveillance of two premises used by the defendants, one of them a non-residential apartment alleged to be the headquarters of the defendants' criminal organization.

The magistrate, concerned that this material had the potential to create prejudicial pretrial publicity, called a recess in the bail proceeding and scheduled a hearing so that representatives of local media could present their views on whether the documents should be sealed. At the conclusion of the hearing, the magistrate entered an order impounding the affidavit and memorandum. He closed the bail hearing to the public so that the parties could freely discuss the material contained in the impounded documents. When this discussion had ended, the magistrate reopened the proceedings and announced the bail conditions that he had set for the defendants.

The following day the magistrate issued a written memorandum and order explaining that "considerations of defendants' Sixth Amendment right to a fair trial, when considered in combination with defendants' [privacy] rights under the provisions of Title III, unequivocally outweigh the public's right of access to the overheard conversations at this time" (emphasis in original). This order also provided that the transcript of the closed portion of the hearing would be impounded; that the government attorney should file "marked up" copies of the impounded memorandum, affidavit, and transcript indicating to the court which portions of those documents did not disclose intercepted communications; and that "any aggrieved party, including representatives of the media", could apply for modification of the terms of the order.

Three of the defendants filed motions for reduction of bail, and those motions were scheduled for a hearing on September 27. The magistrate held an "access" hearing earlier the same day and determined that certain portions of the FBI agent's affidavit could be unsealed. 1 He ordered that the portions of the affidavit that were the fruits of electronic surveillance remain under seal. Because the parties on both sides

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said that they could not structure their bail reduction arguments in a way that separated discussion of Title III matters from discussion of other matters, the magistrate ordered that the bail reduction hearings be closed in their entirety. He determined that an additional affidavit submitted by the government contained Title III material and should be impounded. The magistrate closed portions of subsequent bail modification hearings when the Title III material was under discussion.

The district court affirmed the magistrate's order, basing its decision principally on the fact that the defendants had not yet had an opportunity to test the legality of the electronic surveillance that produced the Title III material. Globe argues that because the defendants in United States v. Angiulo are alleged to be members (and, in some cases, high officials) of the Mafia, the proceedings against them have generated intense public interest. Globe contends that the public should have access to those proceedings. Globe seeks to have this court dissolve the order impounding the memorandum, affidavits, and transcripts. In addition, Globe requests that this court instruct the district court to allow public access to future bail proceedings in the Angiulo case.

Globe originally petitioned this court for writs of mandamus and prohibition after the district court had indicated orally that it would not modify the magistrate's orders of closure and impoundment. Before we had ruled on Globe's petition, the district court issued a memorandum and order affirming the magistrate's closure order; Globe filed a notice of appeal from that judgment and moved to consolidate the appeal with its petition for mandamus. We note that there is some question whether Globe, which is not a party to the underlying action, has standing to challenge the closure order by appeal. 2 We have no need to answer this question in the instant case, because the issue that Globe raises is sufficiently novel and important to justify mandamus review. See United States v. Brooklier, 685 F.2d 1162 (9th Cir.1982); Sacramento Bee v. United States District Court, 656 F.2d 477 (9th Cir.1981).

Although this court has recognized a limited First Amendment interest in the fruits of civil discovery, In re San Juan Star Co., 662 F.2d 108 (1st Cir.1981), the argument that the public has a constitutional right of access to bail proceedings presents a question new to this circuit. In order to resolve the issues before us, we first examine the nature and extent of the public's right of access to pretrial proceedings. Finding that the First Amendment does give the public a right to attend bail hearings, we discuss the nature and extent of the defendants' right to privacy guaranteed by Title III and their Sixth Amendment right to a fair trial. Finally, we adopt a procedure for weighing these competing

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rights and conclude that the closure order in this case has struck the proper balance.

II. The Public's Right of Access to Bail Proceedings

The Supreme Court has in recent years firmly established that the public has a First Amendment right of access to criminal trials. Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980). This right rests in part on the fact that "the criminal trial historically has been open to the press and general public" and in part on the fact that "public access to criminal trials permits the public to participate in and serve as a check upon the judicial process--an essential component in our structure of self-government". Globe Newspaper Co. v. Superior Court, 457 U.S. at 605-06, 102 S.Ct. at 2619-20 (footnote omitted). The court has recently declared that the First Amendment right of access extends to the voir dire of prospective jurors. Press-Enterprise Co. v. Superior Court of California, --- U.S. ----, 104 S.Ct. 819, 78 L.Ed.2d 629 (Jan. 18, 1984). The decision in Press-Enterprise is based on the same factors that informed the decisions in Richmond Newspapers and Globe Newspaper: the history of openness and the importance of public scrutiny of judicial proceedings. The Court's opinion in Press Enterprise suggests, although it does not state, that voir dire is a part of the trial itself rather than a pretrial proceeding. See id. at 824 and n. 8. The Court has not yet ruled on the question whether the First Amendment right of access extends to pretrial proceedings.

In Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979), a case decided the year before Richmond Newspapers, the Court held that the Sixth Amendment right to a public trial did not create in the public a right of access to pretrial proceedings, but rather was a right personal to the accused. Id. at 381, 99 S.Ct. at 2906. The Court recognized as a possibility in Gannett what it later affirmed in Richmond Newspapers --that the Constitution incorporates a traditional common-law right of public access to criminal trials --but it noted that "there exists no persuasive evidence that at common law members of the public had any right to attend pretrial proceedings; indeed, there is substantial evidence to the contrary". Id. at 387, 99 S.Ct. at 2909 (emphasis added) (footnote omitted). The Court raised without deciding the question whether the First Amendment guaranteed access to pretrial...

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