In re Copley Press, Inc.

• Citation: 518 F.3d 1022
• Decision Date: 04 March 2008
• Docket Number: No. 07-72143.,07-72143.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Parties: In re COPLEY PRESS, INC., Intervenor-appellee. United States of America, Plaintiff-Appellant, v. Ismael Higuera-Guerrero, Defendant.

518 F.3d 1022

In re COPLEY PRESS, INC., Intervenor-appellee.

United States of America, Plaintiff-Appellant, v. Ismael Higuera-Guerrero, Defendant.

No. 07-72143.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 6, 2007.

Filed March 4, 2008.

Vijay Shanker, Attorney, U.S. Department of Justice, Washington, DC; Karen P. Hewitt, U.S. Attorney and Laura E. Duffy, Assistant U.S. Attorney, Los Angeles, CA, for the plaintiff-appellant.

Guylyn R. Cummins, Harold W. Fuson, Jr., Judith L. Fanshaw and Scott A. Wahrenbrock, Sheppard, Mullin, Richter & Hampton LLP, San Diego, CA, for the intervenor-appellee.

Appeal from the United States District Court for the Southern District of California; Larry A. Burns, District Judge, Presiding. D.C. No. CR-97-02520-LAB.

Before: ALEX KOZINSKI, Chief Judge, DOROTHY W. NELSON and JOHNNIE B. RAWLINSON, Circuit Judges.

KOZINSKI, Chief Judge:

We consider the district court's order unsealing the transcript of a plea colloquy, a plea agreement's "cooperation addendum" and the documents supporting a motion to seal the plea proceedings.

Facts

Ismael Higuera-Guerrero ran a drug cartel in Mexico along with Javier Arrellano-Felix and Arturo Villareal-Heredia. After U.S. authorities captured the three men, Higuera-Guerrero agreed to plead guilty and to cooperate with the government but the others, initially, declined.¹ The government and Higuera-Guerrero signed a plea agreement containing a "cooperation addendum" in which Higuera-Guerrero pledged to help the government build its case against the cartel. The government filed the plea agreement with the district court, along with a motion to seal the plea "proceedings." The government argued that publicizing Higuera-Guerrero's plea would endanger him and others. Higuera-Guerrero joined the government's motion to seal.

The district court granted the government's motion to seal while the government took steps to reduce the danger to Higuera-Guerrero and others. After those steps were taken, the district court unsealed a redacted transcript of the plea colloquy and all of the plea agreement except the cooperation addendum. This got the attention of Copley Press, Inc., which intervened and asked that the court unseal all the other documents the government had filed in support of its motion to seal, and the transcripts of the hearings on that motion. The district court ordered everything unsealed except the names, birthdates and addresses of the endangered people, but stayed its order while the government sought review. Higuera-Guerrero's former partners join Copley Press in opposing the government's petition, but do not claim that sealing the documents has impeded their defense.

Jurisdiction

Under the collateral order doctrine, we have jurisdiction over a "narrow class of decisions that do not terminate the litigation, but must, in the interest of achieving a healthy legal system, nonetheless be treated as final." Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867, 114 S.Ct. 1992, 128 L.Ed.2d 842 (1994) (internal quotation marks and citation omitted). In order to satisfy this exacting standard, an order must "[1] conclusively determine the disputed question, [2] resolve an important issue completely separate from the merits of the action, and[3] be effectively unreviewable on appeal from a final judgment." Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978) (bracketed numbers added). All three Coopers & Lybrand factors are present here.

Secrecy is a one-way street: Once information is published, it cannot be made secret again. An order to unseal thus "conclusively determine[s]" that the information will be public. Id. For the same reason, such an order is "effectively unreviewable on appeal from a final judgment." Id. This case is distinguishable from United States v. Hickey, 185 F.3d 1064 (9th Cir.1999), where we concluded that we lacked jurisdiction to hear the government's appeal of an order sealing defendants' financial affidavits. That order did not conclusively determine the affidavits' secrecy because the government could file a renewed motion to unseal after the trial was over. Id. at 1067.

Whether the documents are unsealed is an issue "completely separate" from the government's criminal case against Higuera-Guerrero. Coopers & Lybrand, 437 U.S. at 468, 98 S.Ct. 2454. The order to unseal won't affect Higuera-Guerrero's defense because he's already pled guilty and, in any event, joined the motion to seal. United States v. Hitchcock, 992 F.2d 236 (9th Cir.1993) (per curiam), involved an order that was entwined with the merits: If defendants submitted the affidavits unsealed, the government could use them at trial. Id. at 238. Therefore, the district court's order wasn't completely separate from the merits and would have been reviewable on appeal from a final judgment of conviction. Id.

While the government brought this case as a petition for a writ of mandamus, we conclude that we have jurisdiction under the collateral order doctrine, and so will treat this case as an appeal under 28 U.S.C. § 1291. The clerk is directed to alter the docket accordingly.

Merits

We must first consider whether the First Amendment gives the public a right to access these documents. If we answer in the affirmative as to any of the documents in question, we must then determine whether any such right is overcome by a compelling governmental interest. Finally, we consider whether the common law gives the public a right of access separate from the First Amendment.

1.a. Our case law gives the public a qualified First Amendment right to access three types of documents at issue here: (1) the cooperation addendum to Higuera-Guerrero's plea agreement, Appendix to Petition for a Writ of Mandamus ("App.") tab E; (2) the government's motion, and the memoranda filed in support of it, to seal the plea agreement, App. tab A, p. 1; tab B; tab H pp. 1-3; tab L, and (3) the district court's orders granting the government's motion, App. tab C; tab I. Oregonian Publ'ng Co. v. U.S. Dist. Court, 920 F.2d 1462, 1464 (9th Cir.1990). As to these documents, the only question is whether the right to access is overcome by a compelling governmental interest, a question we consider below. See pp.2011-2012 infra.

b. We have not yet decided whether the public has a First Amendment right to access a plea colloquy transcript. To answer that question, we consider both "historical experience" and "logic," Times Mirror Co. v. United States, 873 F.2d 1210, 1213 (9th Cir.1989), though logic alone, even without experience, may be enough to establish the right. See Seattle Times Co. v. U.S. Dist. Court, 845 F.2d 1513, 1516, 1517 (9th Cir.1988) (even without an "unbroken history of public access," the First Amendment right exists if "public scrutiny" would "benefit" the proceedings); see also Phoenix Newspapers, Inc. v. U.S. Dist. Court, 156 F.3d 940, 948 (9th Cir. 1998) ("Even if the historic right of ... access were not dispositive, the `logic' prong of the [test] would be.").²

Every circuit to consider the issue has concluded that logic favors public access to plea colloquy transcripts. See United States v. Danovaro, 877 F.2d 583, 589 (7th Cir.1989); In re Washington Post Co., 807 F.2d 383, 390 (4th Cir.1986); see also Washington Post v. Robinson, 935 F.2d 282, 288 (D.C.Cir.1991) (right of access to "plea agreements and related documents"); United States v. Haller, 837 F.2d 84, 86-87 (2d Cir.1988) (right of access to "plea hearings"). "Public access to [plea colloquy transcripts] reveals the basis on which society imposes punishment," Danovaro, 877 F.2d at 589, and also "serves the important function of discouraging either the prosecutor or the court from engaging in arbitrary or wrongful conduct," In re Washington Post, 807 F.2d at 389; see also Haller, 837 F.2d at 87. Moreover, the Supreme Court has held that the public is entitled to attend criminal trials, Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 605-06, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982), so it stands to reason that plea colloquies, which "serve[ ] as a substitute for a trial," should also be open to the public. In re Washington Post, 807 F.2d at 389; see Oregonian, 920 F.2d at 1465 (this reasoning supports the public's right to access plea agreements). We agree with the other circuits to consider the matter that the public has a qualified First Amendment right to access Higuera-Guerrero's plea colloquy transcript. App. tab F from p. 11, line 19 to end. We consider below whether this right is overcome by a compelling governmental interest. See pp.2011-12 infra.

c. Also at issue here are the transcripts of three hearings on the government's motion to seal. App. tab F from p. 1 to p. 11, line 18; tab K; tab N. We have not yet decided whether the public has a First Amendment right to access such transcripts, so we again apply the experience and logic test. See pp.2007-2009 supra.

There's no historical experience of public access to these hearings or to their transcripts because the hearings didn't exist until quite recently. They were invented twenty-five years ago in United States v. Brooklier, 685 F.2d 1162, 1167-68 (9th Cir. 1982), as part of our circuit's procedure for sealing criminal proceedings. See Oregonian, 920 F.2d at 1466 (to seal a plea agreement, the district court must follow the procedure set forth in Brooklier).³ Because the hearings are "entirely novel," we have no historical experience of public access to them. United States v. El-Sayegh, 131 F.3d 158, 161 (D.C.Cir.1997).

Even without historical experience, logic requires that at least part of these hearings be open to the public, because one of their purposes is to give the public an opportunity to be heard. See Phoenix Newspapers, 156 F.3d at 949 (the hearings give the "public and press" an "opportunity to object or offer alternatives" to closure); see also United States...