CBS, Inc. v. U.S. Dist. Court for Cent. Dist. of California

• Decision Date: 08 July 1985
• Docket Number: Nos. 85-7236,85-7301,s. 85-7236
• Citation: 765 F.2d 823
• Parties: 11 Media L. Rep. 2285 CBS, INC., Petitioner, v. UNITED STATES DISTRICT COURT FOR the CENTRAL DISTRICT OF CALIFORNIA, Respondent, and United States of America and William Hetrick, Real Parties in Interest.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 823

765 F.2d 823

11 Media L. Rep. 2285

CBS, INC., Petitioner, v. UNITED STATES DISTRICT COURT FOR the CENTRAL DISTRICT OF

CALIFORNIA, Respondent,

and

United States of America and William Hetrick, Real Parties

in Interest.

Nos. 85-7236, 85-7301.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted June 10, 1985.

Decided July 8, 1985.

Herbert M. Schoenberg, Bruce J. Teicher, Los Angeles, Cal., for petitioner.

James P. Walsh, Los Angeles, Cal., Jordon Weiss, Stephen V. Wilson, Charles P. Rettig, Hochman, Salkin & DeRoy, Beverly Hills, Cal., for respondent.

Appeal from the United States District Court for the Central District of California.

Before WALLACE, KENNEDY, and FERGUSON, Circuit Judges.

KENNEDY, Circuit Judge:

CBS, Inc., a major radio and television network, petitions for a writ of mandamus to obtain access to documents filed under seal in a post-conviction criminal proceeding. A real party in interest in opposition to the writ is William Hetrick. The petition was lodged as an emergency motion, and we have expedited the oral argument and the filing of this opinion. We grant the requested relief.

Hetrick and John DeLorean were indicted in 1982 on charges of violating federal narcotics statutes. Certain pretrial matters in the DeLorean case were addressed by this court in earlier opinions. CBS, Inc. v. United States District Court, 729 F.2d 1174 (9th Cir.1983); United States v. United States District Court, 717 F.2d 478 (9th Cir.1983); Associated Press v. United States District Court, 705 F.2d 1143 (9th Cir.1983).

Hetrick pled guilty to drug and tax evasion charges. As part of the plea bargain, Hetrick agreed to testify, if called, at DeLorean's trial. In exchange for Hetrick's cooperation, the government dropped other charges against Hetrick and agreed not to prosecute Hetrick's sons. Hetrick received multiple, concurrent ten-year prison sentences. These matters were part of the public record.

In January 1985, Hetrick filed a motion to reduce his sentence under Rule 35, Federal Rules of Criminal Procedure. The motion was filed under seal on Hetrick's own initiative. The government's response was also filed under seal. The trial court denied CBS' motions for access to the sealed documents. The court prepared two sets of sealed findings to support its orders. These mandamus petitions followed. Both Hetrick and the government argue in favor of the closure orders.

Mandamus is the appropriate procedure for CBS to seek review of the orders denying it access to the sealed documents. CBS, Inc. v. United States District Court, 729 F.2d at 1177-78.

We begin with the presumption that the public and the press have a right of access to criminal proceedings and documents filed therein. See Associated Press v. United States District Court, 705 F.2d at 1145-46; United States v. Brooklier, 685 F.2d 1162, 1170 (9th Cir.1982). The right of access is grounded in the First Amendment and in common law, Associated Press, 705 F.2d at 1145, and extends to documents filed in pretrial proceedings as well as in the trial itself. Id.

We find no principled basis for affording greater confidentiality to post-trial documents and proceedings than is given to pretrial matters. The primary justifications for access to criminal proceedings, first that criminal trials historically have been open to the press and to the public, and, second, that access to criminal trials plays a significant role in the functioning of the judicial process and the governmental system, Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606, 102 S.Ct. 2613, 2619, 73 L.Ed.2d 248 (1982), apply with as much force to post-conviction proceedings as to the trial itself.

We must make initial inquiry into what interests or rights will overcome the right of access. In Brooklier we assumed that the right of access to criminal proceedings could, in appropriate circumstances, be limited to protect private property interests as well as the defendant's right to a fair trial. Brooklier, 685 F.2d at 1171. And, in Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984), the Supreme Court, while not approving closure on the facts before it, approached the case from the standpoint that, at least potentially, the privacy rights of prospective jurors could be weighed in the balance against the interests of the press and the public in open proceedings. Though the Press-Enterprise case might be subject to various interpretations on the issue whether some rights other than the defendant's right of fair trial can justify closure, see, e.g., 104 S.Ct. at 826 (Blackmun, J., concurring), we proceed on the premise that other legitimate, compelling interests may be asserted as a ground for closure.

The interest which overrides the presumption of open procedures must be specified with particularity, and there must be findings that the closure remedy is narrowly confined to protect that interest. The rule stated in Press-Enterprise is controlling here:

The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.

104 S.Ct. at 824.

We have read the sealed findings of the district court and conclude that they do not justify its closure orders. The trial court asserted various interests in support of its order sealing the records, but we are unable to identify those interests with specificity, or find them compelling, or conclude that sealing of the documents would vindicate them. The government's interests in law enforcement are implicated in this case, but most of the information the government seeks to keep confidential concerns matters that might easily be surmised from what is already in the public record.

Here the government compromised...