Washington Post Co., In re
| Decision Date | 24 February 1987 |
| Docket Number | Nos. 85-2312,85-5570 and 86-5502,s. 85-2312 |
| Citation | 807 F.2d 383 |
| Parties | , 13 Media L. Rep. 1793 In re WASHINGTON POST COMPANY, Petitioner. Reporters Committee for Freedom of the Press, Amicus Curiae. Appeal of WASHINGTON POST COMPANY. UNITED STATES of America, Appellee, v. Michael Agboutui SOUSSOUDIS, Defendant. Reporters Committee for Freedom of the Press, Amicus Curiae. Appeal of WASHINGTON POST COMPANY. UNITED STATES of America, Appellee, v. Michael Agboutui SOUSSOUDIS, Defendant. Reporters Committee for Freedom of the Press, Amicus Curiae. |
| Court | U.S. Court of Appeals — Fourth Circuit |
John H. Rust, Jr. (Anthony W. Hawks, Thomas & Fiske, P.C., Alexandria, Va., on brief) for petitioner.
Theodore S. Greenberg and David B. Smith (Justin Williams, U.S. Atty., Alexandria, Va., on brief), for appellee.
Jane E. Kirtley and Elaine P. English, Reporters Committee for the Freedom of Press, Washington, D.C., on brief, for amicus curiae.
Plato Cacheris and Larry S. Gondelman, Washington, D.C., on brief, for Michael Agboutui Soussoudis.
Before PHILLIPS and MURNAGHAN, Circuit Judges, and BUTZNER, Senior Circuit Judge.
The Washington Post Co. asks the Court of Appeals to vacate, retroactively, orders by the United States District Court for the Eastern District of Virginia closing a plea hearing and a sentencing hearing in a criminal case, and to order the district court to unseal the remaining sealed portions of the record of those criminal proceedings. We are asked to decide, first, whether the press and public have a First Amendment right of access to plea and sentencing hearings and to documents submitted in connection with such hearings. Second, if we find that such a right of access exists, we must decide whether the procedural requirements and the substantive standards applied in evaluating the scope of that right should differ when considerations of national security are at stake.
On August 6, 1985, a grand jury indicted Michael A. Soussoudis, a Ghanaian national, on eight counts of espionage. The grand jury charged that Soussoudis had become friendly with a low-level CIA employee stationed in Ghana, and that the employee provided Soussoudis with classified information concerning, among other things, the identity of Ghanaian citizens who covertly worked for the CIA, the identity of American covert personnel in Ghana, Ghanaian dissident activity, and military aid to Ghana from other nations. Soussoudis was arrested when he visited the United States. Soussoudis moved to dismiss the indictment, arguing that the court had no jurisdiction to try him under American law for conduct which had occurred in Ghana and which was legal there. After an open hearing, attended by a number of media representatives, the district court denied Soussoudis' motion.
The United States and the government of Ghana then negotiated an agreement whereby Soussoudis would enter a plea of nolo contendere to two counts of the indictment. Subsequent to the imposition of sentence, the parties would jointly move the court, under seal, for an order suspending the sentence. Instead of serving his sentence, Soussoudis would be exchanged for a number of persons allegedly being held in Ghana on charges of spying for the United States. If the exchange were not executed, Soussoudis would have to serve his sentence.
On November 18, 1985, the parties filed a joint motion to have Soussoudis' plea taken in camera. The motion was accompanied by the affidavit of Roberta Elkins, an attorney with the Internal Security Section of the Criminal Division of the Justice Department. Both the motion and the affidavit were filed under seal. Elkins' affidavit stated that the plea and sentencing proceedings should be conducted in secret, because disclosure of the proceedings could "jeopardize the success of the exchange and pose a threat to the lives of persons subject to the jurisdiction of the Government of Ghana." In her affidavit, Elkins also requested the court not to list these in camera proceedings on the court docket. 1 The hearing to take Soussoudis' plea was held in camera on the same day, November 18, 1985. It was not reflected on the court docket. At the hearing, the district court orally granted the government's motion, stating that its decision was based on the Classified Information Procedures Act, 18 U.S.C.App. Two days later, on November 20, the court filed a brief written order to the same effect, which explained that the motion was granted "for reasons stated from the bench."
In the meantime, The Washington Post had assigned reporter Caryle Murphy to cover the proceedings in Soussoudis' case. On November 18, the day of the plea hearing, the official court docket sheet described the proceedings before the court on that day as a hearing on a motion for a continuance in Soussoudis' case. Murphy attempted to enter the courtroom, but was prevented from doing so by the attending United States Marshal. However, the Ghanaian Ambassador, Eric Otoo, and three other Ghanaian officials were permitted to enter the courtroom and observe the proceedings. Murphy objected to her exclusion, but the court informed her, through the Marshal, that no reason would be given for the closure. On November 20, the Post made a written request to the court reporter for a transcript of the November 18 hearing. The court reporter, acting pursuant to the court's instructions, refused to release the transcript. On the same date, both the Post and the Washington Times published articles speculating that an exchange of spies might be imminent.
On November 21, the Post filed a motion in the district court seeking the release of the transcript of the plea hearing and a right to participate in future hearings in the Soussoudis case. The Post requested a hearing on its motion on the following day. The government responded by requesting that the hearing on the Post case were concluded, and Soussoudis left the country, before this court could hear the Post 's petition.
On November 25, the government filed, under seal, a motion to conduct Soussoudis' sentencing in camera and to seal the pleadings and transcripts in the case until further motion by the government. The motion was accompanied by two classified affidavits, those of John C. Whitehead, Acting Secretary of State, and D. Lowell Jensen, Acting Attorney General, which were also filed under seal. The sentencing hearing was held in camera on the same day, November 25, 1985. Again, the hearing was not reflected on the court's docket. The district court granted the government's motion from the bench, again stating only that it relied on the Classified Information Procedures Act. The court did not file a written order. Nevertheless, Murphy, the Post reporter, suspected or had learned that a hearing would be held. She briefly entered the courtroom, accompanied by counsel for the Post, but they were promptly ejected by the Marshal. At the hearing, the district court imposed a 20-year sentence on Soussoudis, then immediately suspended it. Soussoudis was released to the custody of Ambassador Otoo, and he left the United States within twenty-four hours of the sentencing.
On November 26, the district court unsealed the transcripts of the plea hearing and the sentencing hearing, as well as several other documents. The Post then petitioned the district court for release of the documents that remained under seal, which included the motion to have Soussoudis' plea taken in camera and the accompanying Elkins affidavit, the motion to have Soussoudis' sentencing conducted in camera, and the Whitehead and Jensen affidavits. At a hearing on that motion, held on December 27, 1985, the government agreed to the release of the two motions and the Elkins affidavit, but objected to the unsealing of the Whitehead and Jensen affidavits. Complying with the government's wishes, the district court denied the Post 's motion. On January 21, 1986, the government declassified the two motions and the Elkins affidavit and made them available to the Post. The Whitehead and Jensen affidavits remain under seal at the present time.
The Post filed a notice of appeal from the district court's December 27 order. We consolidated that appeal with the Post 's earlier appeal and petition for mandamus. We subsequently denied the government's motion to dismiss the Post 's appeals and petition on the ground of mootness. 2
The government makes a preliminary argument that the Post should seek review of the district court's order denying the Post 's motion to unseal the remaining documents by petition for mandamus, rather than by appeal. It is true that some courts have held that a non-party may seek review of a closure order only by mandamus. United States v. Brooklier, 685 F.2d 1162, 1165-66 (9th Cir.1982); CBS, Inc. v. Young, 522 F.2d 234, 237 (6th Cir.1975). Other courts have allowed appeals by non-parties in closure cases. United States v. Chagra, 701 F.2d 354, 358-60 (5th Cir.1983); see United States v. Criden, 675 F.2d 550, 552 (3d Cir.1982).
Our own cases, however, have resolved the issue in a manner that obviates any dispute here. In Central South Carolina Chapter, Society of Professional Journalists v. Martin, 556 F.2d 706 (4th Cir.1977), this court held that mandamus is the preferred method of review for orders restricting press activity related to criminal proceedings, but that an appeal would be treated as a petition for mandamus if the party seeking...
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