Capital Cities/ABC, Inc.'s Application for Access to Sealed Transcripts, In re, 90-5039

• Decision Date: 23 August 1990
• Docket Number: No. 90-5039,90-5039
• Citation: 913 F.2d 89
• Parties: 18 Media L. Rep. 1049 In re CAPITAL CITIES/ABC, INC.'S APPLICATION FOR ACCESS TO SEALED TRANSCRIPTS. Appeal of CAPITAL CITIES/ABC, INC.
• Court: U.S. Court of Appeals — Third Circuit

Page 89

913 F.2d 89

18 Media L. Rep. 1049

In re CAPITAL CITIES/ABC, INC.'S APPLICATION FOR ACCESS TO SEALED TRANSCRIPTS Appeal of CAPITAL CITIES/ABC, INC.

No. 90-5039.

United States Court of Appeals Third Circuit.

Argued May 30, 1990.

Decided Aug. 23, 1990.

Burt M. Rublin (argued), Wolf, Block, Schorr & Solis-Cohen, Philadelphia, Pa., Thomas D. Caldwell, Jr., Caldwell & Kearns, Harrisburg, Pa., for appellant.

James J. West (argued), Office of the U.S. Atty., Harrisburg, Pa., for appellee U.S.

Before HUTCHINSON, COWEN and SEITZ, Circuit Judges.

OPINION OF THE COURT

HUTCHINSON, Circuit Judge.

Capital Cities/ABC, Inc. (Capital Cities) appeals from a final order of the United States District Court for the Middle District of Pennsylvania denying its application for access to three sealed documents. The documents, two transcripts of chambers and sidebar conferences during a criminal trial and the stenographer's notes of those conferences, concern the involvement of one of the witnesses at trial in an on-going federal grand jury investigation unrelated to the matter about which he testified. They were among sealed portions of the record before this Court.

The district court sealed these documents during the criminal trial on its own motion. Although Capital Cities applied for access to the documents after the criminal trial had ended, the district court denied the application without a hearing because it concluded that the documents contained extremely sensitive information that should be kept private. Specifically, the district court found that the sealed documents contained previously undisclosed information that a government witness was a target of a grand jury investigation. As a result, the district court held that the grave risk of serious injury to the witness from disclosure of his target status compelled denial of Capital Cities' motion seeking access to the documents. ¹

In its appeal, Capital Cities maintains that it has both a common law and a constitutional right of access to the sealed documents. We are unable to make that determination in the first instance on this record. Therefore, we will vacate the district court's order denying Capital Cities' motion for access and remand this matter for further proceedings consistent with this opinion.

I.

On October 25, 1989, Capital Cities applied for access to items that comprised thirteen sealed docket entries in the consolidated criminal trials of United States v Kenneth R. Reeher, No. CR-89-00066-01, and United States v. Harry P. Casoni, No. CR-89-00066-02, in the United States District Court for the Middle District of Pennsylvania. The two defendants were officials of the Pennsylvania Higher Education Assistance Agency who were charged with several counts involving criminal conduct, including conspiracy, extortion, bribery, interstate travel in aid of racketeering and mail fraud. Their trials ended on September 27, 1989, when the jury returned a verdict acquitting Reeher of all charges and convicting Casoni on eight of twelve counts.

In its application for access to the sealed documents, Capital Cities requested a hearing, citing this Court's decision in United States v. Raffoul, 826 F.2d 218 (3d Cir.1987). See Appellant's Appendix (App.) at 30a. On October 31, 1989, the district court held a chambers conference with counsel for Capital Cities to discuss the most appropriate way to proceed with the application. At the chambers conference, the district court indicated that it was inclined to unseal all but three documents if the government had no objection. The government agreed that all but three documents could be unsealed. The district court entered an order on November 7, 1989, unsealing the ten documents whose publication was not objectionable to the government.

Capital Cities continued to seek access to the three remaining sealed documents, which contained transcripts and notes of two chambers and sidebar conferences held on August 25, 1989. ² In the sealed conferences, the district court ruled that the defendants in the underlying criminal trial would not be allowed to impeach one of the prosecution's witnesses by cross-examining him about the fact that he was targeted by a grand jury investigating drug use among high-ranking Pennsylvania government officials.

At the first sealed conference, which took place on the morning of August 25, 1989, the district court revealed that the government had made an in camera submission of certain material that was possibly subject to discovery by the defendants under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). After considering the government's in camera submission, the district court determined that the witness's status as a grand jury target in an investigation unrelated to the Reeher/Casoni matter bore no factual relationship to the matter at hand and could not be considered exculpatory within the meaning of Brady. It also determined that the government had no duty to reveal this information to the defendants for cross-examination purposes, because the information could not properly be used to impeach the witness.

At the completion of the first conference, the district court instructed counsel for Reeher and Casoni that they could not cross-examine the witness concerning the pending grand jury investigation. Furthermore, because of the extremely sensitive nature of this information and the high probability that neither defendant had any knowledge of the information before the chambers conference, the district court sua sponte ordered that the transcript of the conference be sealed and directed counsel for all parties not to reveal its contents to anyone.

In a sidebar conference before the afternoon session on the same day, counsel for Reeher presented the district court with a case, Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), that he thought might change its ruling on the proper scope of the witness's cross-examination. The district court concluded that Davis was distinguishable from the matter at hand and declined to change its earlier ruling. Afterward, the district court ordered that the contents of the afternoon sidebar conference also be sealed and directed all counsel not to discuss the matter with anyone.

On December 11, 1989, the district court issued under seal a final order and memorandum opinion denying Capital Cities' application for access to the three sealed documents. The district court prohibited the opinion's release to both the general public and to the parties until further order. Capital Cities then appealed to this Court.

In this Court, Capital Cities also sought access to the district court's sealed memorandum opinion. Capital Cities moved to unseal the opinion or to be provided with a copy of it in order to prepare its brief on appeal. A motions panel of this Court directed the Clerk of the District Court to transmit the district court's opinion to the Clerk of this Court under seal to enable the motions panel to review the district court opinion before acting on Capital Cities' motion.

Before the motions panel acted on the merits of Capital Cities' motion to unseal the district court's opinion, the opinion's contents were disclosed to Capital Cities as the result of a miscommunication involving the District Court Clerk's Office. That office erroneously entered an order on the district court docket sheet stating that the district court had orally directed the unsealing of its memorandum opinion. Before the docket sheet could be corrected to show that the district court had not ordered the unsealing of the memorandum opinion, Capital Cities acquired a copy of the opinion.

II.

Although Capital Cities has obtained the district court's sealed memorandum opinion in support of the order denying the application for access to the three sealed documents, Capital Cities still lacks access to the documents themselves. Accordingly, this case still presents a live controversy subject to the Article III judicial power to adjudge cases and controversies.

The district court had jurisdiction over Capital Cities' application pursuant to 28 U.S.C.A. Sec. 1331 (West Supp.1990). We have appellate jurisdiction pursuant to 28 U.S.C.A. Sec. 1291 (West Supp.1990). See Raffoul, 826 F.2d at 222 ("An order granting or denying access to portions of a trial record is appealable as a final order pursuant to 28 U.S.C. Sec. 1291."); United States v. Smith, 787 F.2d 111, 113 (3d Cir.1986) (Smith II ) (same).

With respect to Capital Cities' common law right of access to judicial proceedings, we review the district court's order for abuse of discretion. See Smith II, 787 F.2d at 113. However, to the extent that we consider Capital Cities' First Amendment right of access to criminal trial proceedings, we exercise substantially broader review. See id. at 113 n. 1. This broader review includes independent consideration of the district court's order and the factual findings inferred from the evidence before it. See Bose Corp. v. Consumers Union, 466 U.S. 485, 499, 104 S.Ct. 1949, 1958, 80 L.Ed.2d 502 (1984) (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 285, 84 S.Ct. 710, 728, 11 L.Ed.2d 686 (1964)) ("in cases raising First Amendment issues we have repeatedly held that an appellate court has an obligation to 'make an independent examination of the whole record' "); Smith II, 787 F.2d at 113 n. 1.

III.

A.

The government maintains that Seattle Times Co. v. Rhinehart, 467 U.S. 20, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984), is the case most relevant to our review of the district court's denial of Capital Cities' application. In Seattle Times, the Supreme Court held that a protective order, issued upon a showing of "good cause," that limited the parties' ability to disseminate information gained through pretrial civil discovery did not offend the First Amendment since it furthered an important and substantial government interest in liberal pretrial...