Levine v. U.S. Dist. Court for Cent. Dist. of California

• Decision Date: 19 August 1985
• Docket Number: No. 85-7208,85-7208
• Citation: 764 F.2d 590
• Parties: 11 Media L. Rep. 2289 Joel LEVINE, et al., Petitioners, v. UNITED STATES DISTRICT COURT FOR the CENTRAL DISTRICT OF CALIFORNIA, Respondent, United States of America, Real Party in Interest.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 590

764 F.2d 590

11 Media L. Rep. 2289

Joel LEVINE, et al., Petitioners, v. UNITED STATES DISTRICT COURT FOR the CENTRAL DISTRICT OF

CALIFORNIA, Respondent,

United States of America, Real Party in Interest.

No. 85-7208.

United States Court of Appeals,

Ninth Circuit.

Submitted May 20, 1985.

Decided June 24, 1985.

As Amended Aug. 19, 1985.

Paul L. Hoffman, Joan Howarth, ACLU Foundation of Southern Cal., Douglas E. Mirell, David P. Crochetiere, Los Angeles, Cal., for petitioners.

Robert C. Bonner, U.S. Atty., Robert L. Brosio, Russell Hayman, Asst. U.S. Attys., Los Angeles, Cal., for respondent Dist. of Cal., etc.

Emergency Petition for Writ of Mandamus to the United States District Court for the Central District of California.

Before SNEED, NELSON and BEEZER, Circuit Judges.

BEEZER, Circuit Judge:

Richard W. Miller and his attorneys, Stanley I. Greenberg and Joel Levine, seek a writ of mandamus compelling the district court to dissolve a restraining order that prohibits the attorneys involved in Miller's trial from communicating with the media regarding the merits of the case. To determine the validity of the order, we must address the clash between the basic and fundamental right to a fair criminal jury trial and the first amendment right of attorneys to engage in free speech.

I BACKGROUND

On October 2, 1984, Richard W. Miller, a former special agent with the Federal Bureau of Investigation, was arrested and charged with espionage. Miller allegedly passed classified documents to Svetlana Ogorodnikova and Nikolay Ogorodnikov, who were also charged with espionage. An indictment was returned naming all three defendants on October 12. A superseding indictment was returned in November. On January 22, 1985, the district court severed the trial of Miller from the trial of the Ogorodnikovs. The trial of the The criminal proceedings against Miller have received extensive local and national media coverage. Early in the proceedings, the district court became aware that both government officials and defense attorneys had engaged in "on the record" interviews with media representatives. In early November 1984, the district court admonished counsel not to engage in pretrial publicity. On November 28, the government sought an order that would specifically proscribe the making of any extrajudicial statement to the press concerning matters related to the prospective trial of the defendants. The motion was denied on December 14, but the district court again admonished counsel to maintain an atmosphere in which a fair trial could be conducted. The court sought the cooperation of counsel. Defense counsel advised the court that they might "at some future time deem it necessary in the interest of our client to make a statement outside the courtroom."

Ogorodnikovs is currently proceeding, while Miller is still awaiting trial.

Shortly before the beginning of the Ogorodnikovs' trial, the Los Angeles Times published an article by staff writer William Overend that quoted numerous statements attributed to defense attorneys. Lawyers Contend FBI Exaggerated Evidence in Spy Case, L.A. Times, Mar. 3, 1985, pt. 1, at 3. The article summarized the attorneys' statements as follows:

Defense lawyers in the Richard W. Miller spy case have accused the FBI of initially exaggerating the evidence against Miller and two Russian emigres charged with conspiring to pass secret government documents to the Soviet Union.

They said in interviews last week that the three accused spies should never have been prosecuted for espionage because the government has been unable to establish that Miller actually passed any documents to Svetlana Ogorodnikova or her husband, Nikolai Ogorodnikov, or caused any harm to the security interests of the United States.

A federal prosecutor declined to respond to the comments on grounds that a judge has asked all parties in the case to avoid public discussion of the evidence.

Initially, the attorneys focused on the prosecution's decision to drop four counts of aiding and abetting espionage against the Ogorodnikovs:

"The dismissal of these charges means the government has now conceded that no documents were ever passed. It's also a concession that there's been no damage to national security," said Gregory P. Stone, one of Ogorodnikova's lawyers.

"I don't think the case should ever have been brought. The initial characterization by the government that this was a major espionage case with untold damage was an incorrect assessment."

"They acted hastily in filing the espionage charges," added Stanley Greenberg, one of Miller's lawyers. "To a large extent, the FBI misled the U.S. attorney's office about the strength of the case until it was too late."

The attorneys then set forth the defense theory in great detail. Finally, they attacked the basis of the prosecution's case:

Greenberg, joining the criticism of the initial FBI reaction to Miller's activities, said Miller's comments were the "sole basis" for initially charging the Ogorodnikovs with receiving secret documents.

"Those two people were indicted with the hope that the charges could be substantiated, and they haven't been able to do it," Greenberg said. "The only reason Miller is still charged with passing documents is that he admitted it after five days of questioning, and he'd already told them he'd say anything just to end the questioning.

"If he had admitted passing pumpkin papers from the Alger Hiss case, I think he'd be charged with it," Greenberg added.

....

"We've got two dummies here, no question about that," [Greenberg] said. "But these people should have never ....

been taken seriously as spies. It's unrealistic to talk about the Miller case in the same breath as other espionage cases that have come along in the last few years."

[Randy Sue] Pollock, representing Nikolai Ogorodnikov, agreed with the other defense lawyers that the government's case against all three defendants appeared weaker than originally presented. She added that the case against her client was regarded by all of the defense lawyers as the weakest of all.

"He's not involved in this thing. None of us understand why he was indicted," she said....

In response to the Los Angeles Times article, the government filed an ex parte application to renew its motion for a restraining order regarding extrajudicial statements. A hearing was held on March 5, 1985. At the hearing, Levine acknowledged that he had spoken to Overend, although the article did not quote him. After reviewing the statements of counsel in that article, the district court ordered:

[T]hat all attorneys in this case, all parties and all their representatives and agents of counsel and the parties shall not make any statements to members of the news media concerning any aspect of this case that bears upon the merits to be resolved by the jury.

This order shall remain in force during the pendency of this action or until further order of this court. No person covered by this order shall avoid its effects by indirectly but deliberately taking actions which bring about a violation of the order.

And I should include in that order witnesses, too ... and I do.

On June 11, 1985, the district court removed the parties and witnesses from the scope of the order. The revised order applies only to the attorneys for the government and the defendants.

The Ogorodnikovs, their attorneys, and the various media organizations that may be affected by the order are not parties to this proceeding. Miller has remained in custody since his arrest in October 1984. While in custody, he has been denied any contact with media representatives. During the Ogorodnikovs' trial, however, Miller testified in open court pursuant to a grant of limited immunity. ¹ Levine and Greenberg will represent Miller in his jury trial before the district court.

II JURISDICTION

We have jurisdiction to issue a writ of mandamus pursuant to the All Writs Act, 28 U.S.C. Sec. 1651(a). Nevertheless, mandamus is an extraordinary remedy that is employed only in extreme situations. Clorox Corp. v. United States District Court, 756 F.2d 699, 700 (9th Cir.1985). In Bauman v. United States District Court, we set forth five guidelines for determining the appropriateness of issuing a writ of mandamus:

(1) The party seeking the writ has no other adequate means, such as a direct appeal, to attain the relief he or she desires. (2) The petitioner will be damaged or prejudiced in a way not correctable on appeal. (This guideline is closely related to the first.) (3) The district court's order is clearly erroneous as a matter of law. (4) The district court's order is an oft-repeated error, or manifests a persistent disregard of the federal rules. (5) The district court's order 557 F.2d 650, 654-55 (9th Cir.1977) (citations omitted). The first two Bauman guidelines support an exercise of our mandamus jurisdiction. See CBS, Inc. v. United States District Court, 729 F.2d 1174, 1177-78 & n. 2 (9th Cir.1984); Rendleman, Free Press-Fair Trial: Review of Silence Orders, 52 N.C.L.Rev. 127 (1973). The fourth Bauman guideline does not apply in this case. The fifth Bauman guideline is also inapplicable in light of the numerous prior decisions in this circuit and in other jurisdictions. Accordingly, the third Bauman guideline is critical. A simple showing of error will not satisfy this guideline. See Town of North Bonneville v. United States District Court, 732 F.2d 747, 750 (9th Cir.1984); United States v. Brooklier, 685 F.2d 1162, 1173 (9th Cir.1982). We have held that an order is "clearly erroneous as a matter of law" if we are left with the definite and firm conviction that a mistake has been committed. United States v. Harper, 729 F.2d 1216, 1222 (9th Cir.1984). With that standard in mind, we turn to the merits of the petitioners' claims.

raises new and important problems, or issues of law of first impression.

III FREEDOM OF THE PRESS

The petitioners seek to characterize ...