U.S. v. Noriega

Decision Date10 November 1990
Docket Number90-5932,Nos. 90-5927,s. 90-5927
Citation917 F.2d 1543
Parties, 18 Media L. Rep. 1352 UNITED STATES of America, Plaintiff, v. Manuel Antonio NORIEGA, Defendant-Appellee, Cable News Network, Inc., and Turner Broadcasting System, Inc., Appellants. In re CABLE NEWS NETWORK, INC. and Turner Broadcasting System, Inc., Petitioners.
CourtU.S. Court of Appeals — Eleventh Circuit

Stuart F. Pierson, Daniel M. Waggoner, Davis, Wright, Tremaine, Washington, D.C., Steven W. Korn, TBS, Atlanta, Ga., Terry Bienstock, Frates, Bienstock & Sheehe, Miami, Fla., for appellants.

Frank Rubino, Coconut Grove, Fla., Jon May, Miami, Fla., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Florida.

On Petition for Writ of Mandamus or Prohibition to the United States District Court for the Southern District of Florida.

Before JOHNSON, HATCHETT and BIRCH, Circuit Judges.

PER CURIAM:

This matter is before us on the "emergency motion" of appellants Cable News Network, Inc. and Turner Broadcasting System, Inc. (collectively "CNN") to vacate three orders issued by the United States District Court for the Southern District of Florida (the "District Court"). This case presents a difficult question regarding the District Court's responsibility to balance the Sixth Amendment right to a fair trial of the defendant, General Manuel Antonio Noriega ("Noriega"), with CNN's First Amendment right to be free from prior restraints against the broadcasting of newsworthy information.

I. BACKGROUND

General Noriega is presently incarcerated at the Metropolitan Correctional Center ("MCC") in Dade County, Florida. CNN wishes to broadcast recordings of telephone conversations between Noriega and his defense counsel, which were allegedly taped by the government while Noriega was in prison and obtained by CNN from an undisclosed source. Case No. 90-5926 is CNN's appeal of an oral order that prohibits it from broadcasting certain tape recordings in its possession until 6:00 p.m. on November 8, 1990. Case No. 90-5927 is CNN's appeal from two written orders of the District Court. 1 Subsequent to the filing of the above-described motions by CNN, it filed an additional petition, denominated "Appellants' Petition for a Writ of Mandamus or Prohibition," in which CNN seeks an order from this Court "directing the District Court below to refrain from hearing a Motion for Contempt filed by Manuel Antonio Noriega" and seeking disqualification of District Court Judge William Hoeveler pursuant to 28 U.S.C. Sec. 455 (No. 90-5932).

At the outset, we note that this Court lacks jurisdiction to hear Case No. 90-5926 because the appeal is from an oral order that has not been entered on the docket of the District Court. See Fed.R.App.P. 4(a). Accordingly, that appeal did not divest the District Court of jurisdiction to enter the two written orders that are the subject of Case No. 90-5927. Noriega originally petitioned the District Court for injunctive relief, and CNN has framed its appeal as an "Emergency Motion To Vacate An Unconstitutional Prior Restraint," but the case is not appealable in its present posture. 2 In any event, CNN's motion is more properly viewed as a petition for a writ of mandamus against the District Court to correct an abuse of discretion. 3 See Goldblum v. National Broadcasting Corp., 584 F.2d 904, 906 n. 2 (9th Cir.1978); see also In re: Capital Cities/ABC, Inc., 918 F.2d 140 (11th Cir.1990). Accordingly, with respect to Case No. 90-5927, we will treat CNN's motion as a petition for mandamus relief.

In his "Memorandum Of Law In Support Of Motion For Injunctive Relief" ("Noriega's Motion"), Noriega sought to prevent CNN from broadcasting the recorded conversations between Noriega and his attorneys. He did not seek to enjoin CNN from reporting on the government's taping of the conversations, and argued that "an order directing CNN not to broadcast the tapes is sufficiently narrow [to] protect the interests of the press as well as the defendant." 4 Noriega's Motion at 6. Although the restraint imposed by the District Court could arguably be read to embrace the CNN news report about the recordings as well as the recordings themselves, this order will only address the subject matter of Noriega's Motion, the recorded conversations between Noriega and his defense team. 5

The District Court in entering the TRO, in an effort to maintain the status quo pending a determination on the merits, commented:

... Assuming, however, that there are at least some circumstances in which the First Amendment prohibits the prior restraint of even privileged attorney-client communication, the Supreme Court's pronouncements on the doctrine of prior restraint suggest that a factual inquiry is required.... As was stated in the court's Order, the contents of the tape recordings were not before the court. Thus, the court was in effect being asked to make a factual determination without being allowed to review the facts. On this point, it is important to note that CNN is in possession of the tapes, and has resisted turning them over to the court for review. It seems fundamentally unfair to allow CNN to benefit from its refusal to disclose the contents of the tapes to the court--that is, to allow CNN to argue that no prior restraint should issue because no clear and immediate harm is apparent when the only reason that no clear and immediate harm yet appears is because CNN has so far prevented this court from reviewing the content of the tapes in its possession. In response to the portion of the court's Order requiring production of the tapes to this court for the Magistrate's review, CNN argues that the court should compel production of the tapes from the Government before looking to CNN. 1

1. The court notes that a review of the tapes in the Government's possession would not necessarily allow the court to determine whether or not disclosure of CNN's tapes would impair Noriega's right to a fair trial. It is entirely possible that CNN is in possession of communications between Noriega and his lawyers and staff which the Government did not record, since it appears that the Government did not tape all of Noriega's attorney-client conversations. The communications in CNN's possession might have been recorded from a location outside of the prison where Noriega is incarcerated.

....

The court herein wishes to emphasize that its Order was not a decision on the merits of the request for injunction, but rather a temporary restraint until such time as the Magistrate could review the tapes and permit this court to make a determination based on the merits.... But the unique nature of the problem facing this court, unlike other courts which have faced this issue, is that no such determination was nor is possible without knowing the precise contents of the speech sought to be restrained, here the privileged attorney-client communications in CNN's possession.

II. DISCUSSION
A. The District Court's Obligation When Confronted With Allegations Of Prejudicial Publicity

"[F]ree speech and fair trials are two of the most cherished policies of our civilization, and it would be a trying task to choose between them." Bridges v. California, 314 U.S. 252, 260, 62 S.Ct. 190, 192, 86 L.Ed. 192 (1941). Within the context of pretrial and trial proceedings, a district court often is called upon to make this critical and difficult choice. 6 Balancing the First and Sixth Amendment concerns involved in a widely publicized, hence "sensational", criminal case, the former Fifth Circuit concluded that the trial court is accorded broad discretion to accomplish its primary responsibility of ensuring that the accused has a fair trial:

The right of access to criminal proceedings becomes a highly controversial issue when First Amendment questions must be analyzed in conjunction with competing Sixth Amendment considerations. "A heavy obligation rests on trial judges to effectuate the fair-trial guarantee of the Sixth Amendment." United States v. Columbia Broadcasting System, Inc., 497 F.2d 102, 104 (5th Cir.1974). "Given the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, trial courts must take strong measures to ensure that the balance is never weighed against the accused." Sheppard v. Maxwell, 384 U.S. 333, 362, 86 S.Ct. 1507, 1522, 16 L.Ed.2d 600 (1966). In a widely publicized case, "the right of the accused to trial by an impartial jury can be seriously threatened by the conduct of the news media prior to and during trial." Report of the Committee on the Operation of the Jury System on the "Free Press-Fair Trial" Issue, 45 F.R.D. 391, 394 (1968).

Thus, it is the trial judge's primary responsibility to govern judicial proceedings so as to ensure that the accused receives a fair, orderly trial comporting with fundamental due process. The trial judge is therefore granted broad discretion in ordering the daily activities of his court. Id. at 401. "[A] trial judge should have the authority to adopt reasonable measures to avoid injury to the parties by reason of prejudicial or inflammatory publicity." Columbia Broadcasting System, Inc. v. Young, supra, 522 F.2d at 241 [6th Cir.1975 (Per Curiam)]. See also, United States v. Schiavo, supra, 504 F.2d at 6 [3d Cir.1974]; United States v. Columbia Broadcasting System, Inc., supra, 497 F.2d at 106-07 [5th Cir.1974]. Within this discretion, therefore, the district judge can place restrictions on parties, jurors, lawyers, and others involved with the proceedings despite the fact that such restrictions might affect First Amendment considerations. Sixth Amendment rights of the accused must be protected always. United States v. Columbia Broadcasting System, Inc., supra; United States v. Schiavo, supra.

United States v. Gurney, 558 F.2d 1202, 1209-10 (5th Cir.1977) (emphasis added), cert. denied, 435 U.S. 968, 98 S.Ct. 1606, 56 L.Ed.2d...

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