Application of National Broadcasting Co., Inc.

• Decision Date: 31 July 1987
• Docket Number: I,No. 86-3735,WKYC-TV3,86-3735
• Citation: 828 F.2d 340
• Parties: 14 Media L. Rep. 1417 Applications of NATIONAL BROADCASTING COMPANY, INC. andntervenors-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Jackie PRESSER, Harold Friedman and Anthony Hughes, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 340

828 F.2d 340

14 Media L. Rep. 1417

Applications of NATIONAL BROADCASTING COMPANY, INC. and WKYC-TV3, Intervenors-Appellants UNITED STATES of America, Plaintiff-Appellee, v. Jackie PRESSER, Harold Friedman and Anthony Hughes Defendants-Appellees.

No. 86-3735.

United States Court of Appeals Sixth Circuit.

Argued Feb. 2, 1987.

Decided July 31, 1987.

Stephen H. Jigger, Bernard A. Smith, Cleveland, Ohio, for U.S Michael L. Climaco, John R. Climaco, Paul Lefkowitz (argued), Roger M. Synenberg, Climaco, Climaco, Seminatore, Lefkowitz & Garofili, Cleveland, Ohio, for Hughes and Presser.

Terence J. Clark (argued), Michael E. Brittain, Joseph A. Castrodale, Calfee, Halter & Griswold, Cleveland, Ohio, for intervenors-appellants.

Robert J. Rotatori, Susan Gragel, Cleveland, Ohio, for Friedman.

Before LIVELY, Chief Judge, RYAN, Circuit Judge, and JOINER, District Judge. ^*

LIVELY, Chief Judge.

This is one of two appeals now before this court arising from preliminary proceedings in the prosecution of Jackie Presser, the president, and two other officials of the Teamsters Union. Neither appeal involves matters directly related to the question of the guilt or innocence of the defendants. The appellants in both cases seek media access to the sealed records of certain pretrial proceedings that were conducted in camera by the district court. The companion case is No. 86-3656, in which Storer Communications, Inc. and WJW-TV8 are the appellants (the Storer appeal), decided this date.

I.

A.

Following the May 16, 1986 indictment of the defendants on charges of embezzling union funds, their case was assigned to United States District Judge Ann Aldrich by blind draw. John Climaco, the attorney for defendant Presser, wrote Judge Aldrich, suggesting that she recuse herself in view of a longstanding quarrel between Judge Aldrich and himself. Judge Aldrich did not comply with the request, but did refer it to the judge of the district court handling miscellaneous matters, Honorable George W. White. This procedure had been suggested by this court in an unpublished opinion in an unrelated case in which another of Climaco's clients had appealed Judge Aldrich's denial of a motion to disqualify herself.

On June 3 (all dates refer to 1986 unless otherwise indicated) John Climaco filed a motion under seal with Judge White to disqualify Judge Aldrich pursuant to 28 U.S.C. Secs. 144 and 455. The motion requested that proceedings thereon be conducted in camera. The motion was accompanied by a memorandum in support and a motion that the memorandum be filed under seal. A similar motion and memorandum were filed by Michael Climaco on behalf of the defendant Anthony Hughes--also under seal. Michael Climaco is the brother of John Climaco and both are members of the same law firm. Following a hearing on June 4 Judge White filed a memorandum in which he found that Judge Aldrich should be disqualified "under the circumstances" and in view of the affidavits of Presser and Hughes alleging a lack of impartiality growing out of differences between the judge and their attorneys. On June 5 Judge White entered an order returning the case to the clerk of court for reassignment and deferring the matter of unsealing the record. The National Broadcasting Company and WKYC-TV3 (hereafter NBC) had filed an application the same date, June 5, to be permitted to secure copies of all the documents related to the disqualification issue.

B.

On June 13, attorneys for the Department of Justice filed a motion for inquiry concerning conflicts of interest faced by the attorneys for the three defendants. On June 16, Presser filed a motion to place the government's June 13 motion and accompanying documents under seal on the ground that they would generate additional prejudicial pretrial publicity. This motion and a supporting memorandum were also filed under seal. On June 20 NBC filed an application to receive copies of all documents related to the inquiry concerning conflicts of interest. On June 23 Judge White, to whom the case had now been assigned for trial, issued an order that all documents related to the inquiry would remain under seal until further order of court. Both Presser and Hughes filed memoranda, under seal, in opposition to NBC's applications for access and Presser filed a motion, under seal, to place all documents related to the conflicts inquiry under seal.

The district court held a hearing in open court on June 26 at which the attorneys argued the legal issues raised by the various motions without discussing factual matters. At this hearing the attorney for the third defendant, Harold Friedman, also argued in favor of keeping all records pertaining to the motion for disqualification and the inquiry into conflicts of interest under seal. At the conclusion of the hearing the court denied NBC's application for access. The court found that the sealed documents seeking the disqualification of Judge Aldrich related "to matters which are not relevant to the culpability of the within defendants," but that their disclosure might cause potential jurors to become biased against the defendants. The district court also denied NBC's application for access to the documents pertaining to the conflicts inquiry. The court again found that these materiais have no bearing on the culpability of the defendants, but found further that their disclosure would make it "virtually impossible to impanel an impartial jury" and would create "far more than a 'reasonable probability of prejudice' to the defendants." The district court filed a memorandum and order on June 27, directing that all documents remain under seal, and providing that a transcript including all the materials in question would be made available for public inspection after the trial, when "the danger of prejudice will have passed."

C.

On July 3 NBC filed a motion for reconsideration of the rulings on both applications. The court held in camera hearings on July 10 and 11 on the conflicts issue and obtained waivers on the record from each defendant of any claim of prejudicial error arising out of conflicts of interest involving their attorneys. On July 22 the district court filed a memorandum and order denying NBC's motion for reconsideration. In its memorandum the court analyzed the Supreme Court's decision in Press-Enterprise Co. v. Superior Court of California, --- U.S. ----, 106 S.Ct. 2735, 92 L.Ed.2d 1, decided June 30, 1986, and concluded that NBC had not satisfied a "two-pronged test" set forth by the Court to establish a qualified right of access to the principal materials sought. The order did release from seal NBC's applications, the memoranda and briefs in support and in opposition to the applications and various responses. What remained under seal were the defendants' motions to disqualify Judge Aldrich with all supporting documents, the government's motion for inquiry into conflicts with all supporting documents and the materials filed in response thereto by the defendants, and the transcripts of all in camera hearings and meetings.

The district court's July 22 memorandum concluded:

Because Presser is entitled to a fair trial, Presser's right to a fair trial supersedes the public's right of access, Press-Enterprise Company v. Superior Court, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984); Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), the publicity generated by the media has already created a high level of prejudicial pre-trial publicity such that there exists a "substantial probability" that Presser's right to fair trial will be prejudiced by further publicity generated in connection with the release of information regarding the disqualification of the Honorable Ann Aldrich and the pleading filed by the United States of America seeking a court inquiry into various alleged conflicts of interest, there exists no reasonable alternative to closure other than a release of such information and materials after the conclusion of the trial on the merits.

For the foregoing reasons and for the reasons stated in the Court's previous order, NBC and WKYC do not have a right of access to the information that they now seek by way of this motion for Reconsideration. The Motion for Reconsideration is DENIED.

D.

NBC filed a timely notice of appeal from the district court order formally sealing the various documents and from the orders denying its application for access and denying its motion for reconsideration. Although all of these orders are interlocutory with respect to the underlying case, we have jurisdiction of this appeal pursuant to 28 U.S.C. Sec. 1291. NBC was permitted to intervene in the district court, and the orders satisfy the "collateral order doctrine" set forth in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). See Application of The Herald Co., 734 F.2d 93, 96 (2d Cir.1984).

II.

A.

This is not a prior restraint case. NBC is not restrained by the district court's order from publishing or broadcasting documents or information in its possession. Rather, the case concerns the right of the public and representatives of "the media" to have access to documents filed in a district court at the preliminary stages of a criminal prosecution. The Supreme Court has decided a number of cases dealing with the right of access since 1979. See Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982); Press-Enterprise Co. v. Superior Court of California (Press Enterprise I), 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984); Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984); Press-Enterprise Co. v. Superior Court of California (Press Enterprise II), --- U.S. ----, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986)....