Washington Post v. Robinson, 90-5119

• Citation: 935 F.2d 282
• Decision Date: 14 June 1991
• Docket Number: No. 90-5119,90-5119
• Parties: , 59 USLW 2694, 18 Media L. Rep. 2027 THE WASHINGTON POST, Appellant, v. Honorable Deborah ROBINSON, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 282

935 F.2d 282

290 U.S.App.D.C. 116, 59 USLW 2694,

18 Media L. Rep. 2027

THE WASHINGTON POST, Appellant, v. Honorable Deborah ROBINSON, Appellee.

No. 90-5119.

United States Court of Appeals District of Columbia Circuit.

Argued March 15, 1991.

Decided April 19, 1991.

As Amended on Denial of Rehearing June 14, 1991.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 90-00095).

Michael A. Simons, Westbury, N.Y., for appellant. Boisfeuillet Jones, Jr. and Barbara P. Percival, Washington, D.C., were on the brief for appellant.

Madelyn E. Johnson, Asst. U.S. Atty., Dept. of Justice, with whom Jay B. Stephens, U.S. Atty., John D. Bates and R. Craig Lawrence, Asst. U.S. Attys., Dept. of Justice, Washington, D.C., were on the brief, for appellee.

Before WALD, RUTH BADER GINSBURG and D.H. GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge:

The Washington Post ("Appellant"), appeals from a district court order denying appellant's petition for a writ of mandamus to compel Magistrate Judge Robinson to release portions of a plea agreement filed under seal in United States v. McWilliams, Cr. No. 90-0072M-01, and affirming the Magistrate Judge's order sealing the plea agreement in the McWilliams case. The district court found that Magistrate Judge Robinson followed proper procedures for sealing the plea agreement and that compelling interests justified the sealing order.

We disagree and hold that the minimum procedures necessary to protect the first amendment right of access to plea agreements and related documents were not followed and that the government did not meet its burden of demonstrating a compelling interest to justify sealing the agreement. Therefore, we vacate both the district court's affirmance and Magistrate Judge Robinson's decision to seal the plea agreement.

I. BACKGROUND

This appeal arises out of events following the arrest of then-Mayor of the District of Columbia, Marion Barry, for cocaine possession. One of the key figures in the investigation was District employee James McWilliams. At an open plea hearing on January 30, 1990, McWilliams appeared before Magistrate Judge Deborah Robinson to enter a plea of guilty to one count of aiding and abetting possession of cocaine base. ¹ Plea agreements are generally filed on the public record. At the beginning of the McWilliams hearing, however, the United States Attorney requested that the entire plea agreement be filed under seal. No motion to that effect had been filed or docketed in advance. The government provided no justification for sealing the plea agreement at the time of its oral request. Nor did the Magistrate Judge at that time afford any opportunity for interested persons to object to the sealing order, ² or articulate any findings on the record to support her decision to seal the plea agreement. The plea agreement was accepted as Government's Exhibit 1 and sealed in its entirety on January 30, 1990. See United States v. McWilliams, No. 90-0072M-01, Transcripts of Hearing at 3 ("January 30 Order").

On February 6, 1990, appellant, Washington Post, filed a motion to intervene in the proceeding in order to obtain access to the sealed plea agreement. In its motion, appellant challenged the Magistrate Judge's January 30 Order sealing the entire plea agreement on the grounds that she did not follow the appropriate procedures for sealing a court document and that there was no compelling interest justifying this sealing order. The government then filed under seal its opposition to appellant's motion. On March 29, 1990, the Magistrate Judge issued a Memorandum Order, also filed under seal, granting appellant's motion in part by releasing portions of the plea agreement and denying it in part by continuing to keep portions of the plea agreement under seal. See United States v. McWilliams, Mag.Cr. No. 90-0072M, Memorandum Opinion ("March 29 Order"). The Magistrate Judge filed on the public record a "Notice of Filing of Memorandum Order Under Seal," which stated:

The parties are hereby notified that on March 29th, 1990, the undersigned filed, under seal, a Memorandum Order granting in part and denying in part the Motion of the Washington Post to Intervene and for Access. Specifically, the undersigned found that there are compelling governmental interests which justify maintaining under seal certain portions of the plea agreement filed under seal in the instant case on January 30, 1990. Accordingly, it was ordered that those portions of the plea agreement remain under seal, and that the remainder of the agreement be unsealed.

No other information regarding the original or subsequent justification for sealing the plea agreement was provided on the public record. ³

Appellant then filed in district court a petition for writ of mandamus challenging the Magistrate Judge's partial denial of appellant's motion. Appellant also filed an appeal of the Magistrate Judge's original January 30 Order and the subsequent March 29 Order to seal portions of the plea agreement and related documents. The district court denied appellant's petition for writ of mandamus and affirmed the Magistrate Judge's decision to seal the plea agreement, adopting her reasoning "that compelling governmental interests justified sealing certain sections of the agreement." The Washington Post v. Robinson, No. 90-0095-AER, Order ("District Court Order") at 2.

On June 22, 1990, the government introduced the McWilliams plea agreement as an exhibit in the trial of Marion Barry in connection with McWilliams' testimony at that trial. See United States v. Barry, Cr. No. 90-0068, Government's Exhibit 19. At that time the plea agreement became available as part of the public record in the Barry case, although it remained under seal in the McWilliams case. On December 20, 1990, the government moved to unseal the sealed portions of the McWilliams plea agreement, as well as related sealed documents. Magistrate Judge Robinson granted the motion and unsealed the plea agreement, the government's opposition to appellant's motion to intervene, the government's declaration in support of its opposition, and the March 29 Memorandum Order. Appellant received copies of all previously sealed documents.

The sealed portion of the plea agreement revealed only the following general information as to the nature of McWilliams' agreement to cooperate with the government:

James McWilliams shall cooperate with this Office in good faith. He shall provide truthful, complete, and forthright information concerning himself and others wherever, to whomever, and in whatever form an attorney from this Office requests. The term "whatever form" includes, but is not limited to, oral responses to questions; sworn, written statements; interrogatories; sworn testimony before a grand jury; sworn testimony in court; documentary materials; and tangible evidence. The term "whomever" includes, but is not limited to, the Federal Bureau of Investigation, and the District of Columbia Metropolitan Police Department. He must attend all meetings at which his presence is requested with respect to the matters about which this Office inquires of him. He must abide by all federal, state, and local criminal laws throughout the period of his cooperation with this Office.

The previously sealed March 29 Order of the Magistrate Judge, however, stated that the sealed portions of the plea agreement "contain references which could either (1) disclose the nature and the scope of an ongoing grand jury investigation into public corruption and narcotics violations; or (2) disclose the fact of defendant's agreement to cooperate in the ongoing criminal investigation." March 29 Order at 10. The Magistrate Judge found on those facts that risk of injury to McWilliams was a sufficiently compelling reason to justify sealing the plea agreement because, according to the government, other cooperating witnesses in the same investigation had been threatened. See id. at 7. In addition, the Magistrate Judge credited the government's statement that McWilliams had indicated that his decision to cooperate might be undermined by pressure resulting from premature disclosure of his cooperation. Therefore, the Magistrate Judge held that sealing the plea agreement was justified because disclosure could jeopardize the ongoing criminal investigation and, specifically, McWilliams' willingness to cooperate. See id.

The Magistrate Judge's March 29 Order also stated that "[b]ecause some portions of the plea agreement have either already been made public, or they do not contain information which implicates the governmental interests at stake, an order sealing the entire agreement is broader than necessary to protect the Government's interests in this case." ⁴ Id. at 9-10. And, because "the government's interest lies in keeping the fact of defendant's cooperation confidential," the sealed portions of the plea agreement were to remain sealed only until such time as McWilliams' obligation to cooperate with the government was fulfilled. See id. at 13.

Although the Washington Post now has the entire plea agreement, the government's opposition documents, and the Magistrate Judge's March 29 Order in hand, it has appealed to this court challenging the district court's affirmance of the Magistrate Judge's orders. Appellant challenges the district court's affirmance on three grounds: (1) that when the Magistrate Judge originally sealed the entire plea agreement at the government's request on January 30, 1990, she did not follow the minimum procedures necessary to protect the public's first amendment right of access to the plea agreement; (2) that the government did not demonstrate any compelling interest to justify sealing the plea agreement; and (3) that the Magistrate Judge should have made findings on the public record, relating to the nature of the compelling interest that justified the ...