U.S. v. Hickey, 84-1847

• Decision Date: 11 July 1985
• Docket Number: No. 84-1847,84-1847
• Citation: 767 F.2d 705
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael J. HICKEY, Defendant, Mark A. Hopkinson, Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 705

767 F.2d 705

UNITED STATES of America, Plaintiff-Appellee, v. Michael J. HICKEY, Defendant Mark A. Hopkinson, Appellant.

No. 84-1847.

United States Court of Appeals Tenth Circuit.

July 11, 1985.

Leonard D. Munker, State Public Defender, Cheyenne, Wyo., for appellant.

David A. Kern, Asst. U.S. Atty., Cheyenne, Wyo. (Richard A. Stacy, U.S. Atty., Cheyenne, Wyo., with him on the brief), for plaintiff-appellee.

Before McKAY and SETH, Circuit Judges, and WEINSHIENK, District Judge ^*.

SETH, Circuit Judge.

The question presented for decision is whether the common law right of access to court records extends to the sealed plea bargain of a criminal defendant now enrolled in the witness protection program of the United States Marshal's Service.

Mark A. Hopkinson brings this appeal from an order of the United States District Court for the District of Wyoming denying him access to the court file of one Michael J. Hickey. The file contains the details of Mr. Hickey's plea bargain on federal charges stemming from a bombing incident. The court sealed the file at the request of the United States Attorney in order to safeguard its contents from disclosure. The appellant asserted that inspection was necessary to determine whether the file contained any exculpatory information, citing Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215. However, the appellant made no allegation of prosecutorial misconduct or the purposeful suppression of material evidence. The motion, seeking review of "all pertinent information" touching on Mark Hopkinson's conviction, was couched in general terms. The government resisted the motion on the grounds that the file might reveal Mr. Hickey's present location. Any such revelation could be potentially dangerous to Mr. Hickey in light of the fact that the appellant is presently under a sentence of death for orchestrating the murder of a witness against him. The appellant masterminded that crime while imprisoned in a federal facility in California. The trial court concluded that the government had a "serious and fundamental interest in maintaining the records under seal." The court reviewed the file and determined it contained only administrative matters. The court found nothing "relevant" to the appellant's case.

The facts underlying the appellant's convictions in state court are particularly heinous. The history of the case is recited exhaustively in the various decisions of the Wyoming Supreme Court dealing with the direct and collateral appeals. See generally Hopkinson v. State, 632 P.2d 79 (Wyo.) (Hopkinson I ); Hopkinson v. State, 664 P.2d 43 (Wyo.) (Hopkinson II ); Hopkinson v. State, 679 P.2d 1008 (Wyo.) (Hopkinson III ). However, a brief review of the genesis of the Hopkinson case is important in assessing the propriety of the exercise of the trial court's discretion.

Beginning in 1975, the appellant developed an intense animosity towards Vincent Vehar, an attorney representing parties embroiled in civil litigation against the appellant's family. The appellant plotted with two friends, Michael Hickey and Jeff Green, to kill Vincent Vehar. During this planning phase, the appellant dispatched Jeff Green to Arizona to bomb the car of one of the appellant's debtors. The mission was abortive; Mr. Green was stopped in Utah for speeding and the bomb was discovered. The appellant and Michael Hickey bailed Mr. Green out of jail. At this point Jeff Green was dropped from the discussions concerning the Vehar killing.

The appellant knew that Michael Hickey had killed a 15-year-old girl named Kelly Wyckhuyse. He offered Mr. Hickey $2,000 and his assistance in covering up the Wyckhuyse murder if he would kill Vincent Vehar. On August 6, 1977, the appellant "ordered Hickey to blow up the Vehar home that night; Hickey did. Vehar, his wife and one son were killed by the explosion--another son was seriously injured." Hopkinson II, 664 P.2d at 49. Michael Hickey then left for California.

An accomplice in the Wyckhuyse murder implicated Michael Hickey for that crime. He was charged with murder. Michael Hickey, the appellant, and Jeff Green conspired together to protect Mr. Hickey; they concocted stories which implicated the accomplice rather than Michael Hickey. The charges against him were dropped, and the accomplice was charged. During the accomplice's trial, Jeff Green broke down. He implicated the appellant and Michael Hickey in the Vehar bombing and stated that Michael Hickey killed the Wyckhuyse girl.

The appellant and Michael Hickey were tried in the United States District Court in Wyoming in March 1979 on federal charges stemming from the attempted Arizona bombing. Jeff Green testified as an unindicted coconspirator against the appellant. Michael Hickey was acquitted. The appellant was convicted and sentenced to prison at the Lompoc, California facility. This court affirmed the conviction. See United States v. Hopkinson, 631 F.2d 665 (10th Cir.).

While at Lompoc, the appellant directed unknown parties to kill Jeff Green. His mutilated body was discovered shortly before the opening of the grand jury investigation into the Vehar deaths. Hopkinson II, 664 P.2d at 50.

Michael Hickey entered into two distinct plea bargain arrangements. In exchange for pleading guilty to second degree murder in the Wyckhuyse case and testifying on the appellant's role in the Vehar bombing, Michael Hickey received complete immunity from prosecution in the Vehar deaths in the state court proceedings. Michael Hickey received a 20-year sentence for the Wyckhuyse murder. This sentence ran concurrently with a 20-year sentence later imposed in federal court for setting the explosion that maimed the surviving Vehar son. The federal sentence resulted from a separate plea bargain arrangement. There is no doubt that the contents of the state court plea bargain were known. The agreement was read into the record at the penalty hearing after the remand in Hopkinson I. See Hopkinson II, 664 P.2d at 62, 63. There is also no doubt that at least the general terms of the federal plea bargain were known. See Hopkinson I, 632 P.2d at 105 n. 13.

The appellant was convicted of the murder of Jeff Green and received the death sentence. The appellant also was convicted of the Vehar murders and received three sentences of imprisonment for life. Because the appellant repeatedly asserts that Michael Hickey was the "key" witness against him, it should be pointed out that Mr. Hickey's testimony only concerned the Vehar killings. The case against the appellant for the murder of Jeff Green was based on circumstantial evidence arising out of the appellant's actions while incarcerated at Lompoc. Michael Hickey was an important witness in the Vehar prosecution. However, he was not at all a "key" witness in the aspect of the case for which the appellant was sentenced to death, namely, the Green assassination. Hence any alleged improprieties in the federal plea bargain would only have significance for the Vehar convictions.

The appellant essentially makes three arguments. First, he contends that the common law right of access to court records requires the production of Michael Hickey's file. Secondly, the appellant asserts the trial court erred in not allowing a hearing on his motion. Finally, the appellant argues that his Brady request, in the context of his pending death sentence, compels full access to the sealed file. We reject all three arguments and therefore affirm the decision of the trial court.

We begin by acknowledging the axiom that a common law right exists to inspect and copy judicial records. See, e.g., In re Knight Publishing Company, 743 F.2d 231, 235 (4th Cir.); In re National Broadcasting Company, Inc., 653 F.2d 609, 612 (D.C.Cir.). The right is an important aspect of the overriding concern with preserving the integrity of the law enforcement and judicial processes. United States v. Hubbard, 650 F.2d 293, 315 (D.C.Cir.). However, the right is not absolute. All courts have supervisory powers over their own records and files. Nixon v. Warner Communications, Inc., 435 U.S. 589, 598, 98 S.Ct. 1306, 1312, 55 L.Ed.2d 570; Crystal Grower's Corporation v. Dobbins, 616 F.2d 458, 461 (10th Cir.). Thus a court, in its discretion, may seal documents "if the public's right of access is outweighed by competing interests." In re Knight Publishing Company, 743 F.2d at 235. The Supreme Court discussed a number of the traditional exceptions to the general rule of access in the Nixon case. There the Court stated:

"[A]ccess has been denied where court files might have become a vehicle for improper purposes. For example, the common-law right of inspection has bowed before the power of a court to insure that its records are not 'used to gratify private spite or promote public scandal' through the publication of 'the painful and sometimes disgusting details of a divorce case.' Similarly, courts have refused to permit their files to serve as reservoirs of libelous statements for press consumption, or as sources of business information that might harm a litigant's competitive standing."

Nixon v. Warner Communications, Inc., 435 U.S. at 598, 98 S.Ct. at 1312 (citations omitted). The Court pointed out that because the analysis of the question of limiting access is necessarily fact-bound, there can be no comprehensive formula for decisionmaking. Id. at 599, 98 S.Ct. at 1312. "[T]he decision as to access is one best left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case." Id. Thus the trial court in the present case had the supervisory power to act as it did. The question remains whether the court abused its discretion in foreclosing access to the details of Mr. Hickey's plea bargain.

The trial court's discretion is not unlimited. In re National Broadcasting Company, Inc., 653 F.2d at 613. The court must consider the relevant facts...