Oregonian Pub. Co. v. U.S. Dist. Court for Dist. of Oregon
| Decision Date | 06 December 1990 |
| Docket Number | No. 90-70275,90-70275 |
| Citation | 920 F.2d 1462 |
| Parties | , 18 Media L. Rep. 1504 The OREGONIAN PUBLISHING COMPANY, Petitioners, v. UNITED STATES DISTRICT COURT FOR the DISTRICT OF OREGON, Respondent, Frank Riley Wolsky and United States of America, Real Parties in Interest. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Charles F. Hinkle, Stoel, Rives, Boley, Jones & Grey, Portland, Or., for petitioners.
Frank Noonan, U.S. Atty., Portland, Or., for respondent.
Stephen A. Houze, Portland, Or., for real parties in interest.
Appeal from the United States District Court for the District of Oregon.
Before WALLACE, THOMPSON and FERNANDEZ, Circuit Judges.
The Oregonian Publishing Company ("The Oregonian") petitions this court for a writ of mandamus to obtain access to various documents relating to a plea agreement filed under seal in the district court. Frank Riley Wolsky is a real party in interest in opposition to the writ. The United States is a real party in interest in favor of the writ. We grant the petition and issue the writ.
On March 29, 1989, Frank Riley Wolsky was indicted under 18 U.S.C. Sec. 924(c) and 21 U.S.C. Sec. 841(a)(1) for various federal drug and firearm offenses. His case attracted considerable media attention due to his age, his status as a high school student and the style in which he was alleged to be living at the time of his arrest. At the time he allegedly committed the crimes, Wolsky was an eighteen-year-old high school student. At the time of his arrest on January 18, 1989, he lived on his own in a fashionable condominium and owned three cars, several guns and a large amount of cash.
Pursuant to plea negotiations, Wolsky sought to enter a plea of guilty to two counts in the indictment: possession with the intent to distribute 500 grams or more of cocaine and carrying a firearm during and in relation to a drug trafficking crime. On December 5, 1989, the government and Wolsky entered into a plea agreement. The terms of the plea agreement were set forth in a letter from the government dated November 29, 1989. Wolsky filed, under seal, a motion to seal the plea agreement.
On January 2, 1990, The Oregonian and two of its reporters filed a motion to intervene for the purpose of opposing the motion to seal the plea agreement. Another newspaper, the Gresham Outlook, also filed a motion to intervene. The district court granted the motions to intervene and set argument on the motion to seal for January 19, 1990, the date set for Wolsky's plea. On January 8, 1990, Wolsky filed a memorandum in support of his motion to seal. The Oregonian and the Gresham Outlook each filed memoranda in opposition to Wolsky's motion. The government filed no memorandum but stated its opposition to Wolsky's motion to seal in a letter dated December 29, 1989.
At the January 19 hearing, Wolsky appeared and entered a guilty plea. After hearing argument on the motion to seal, the district court granted Wolsky's motion and ordered the plea agreement sealed. It also ordered certain portions of its opinion and order sealed.
The Oregonian then sought a writ of mandamus from this court directing the district court to unseal the plea agreement and related documents. The related documents included the memoranda filed by Wolsky under seal and the district court's findings in support of its order sealing the documents. We denied the mandamus petition without prejudice to the filing of a new petition after Wolsky's sentencing. Wolsky's sentencing occurred on March 26, 1990, but the plea agreement and related documents remained under seal. On April 2, 1990, The Oregonian filed in the district court a Motion to Unseal the Plea Agreement and for Related Relief. Wolsky filed an opposing memorandum stating that "none of the concerns previously submitted by the defendant to the court in support of his motion to seal have abated," and urged the court to deny The Oregonian's motion. The government filed no further memorandum.
At a hearing on April 12, 1990, the district court denied The Oregonian's motion, declined to state the reasons why the plea agreement was being maintained under seal and stated that it would issue a written order. On July 6, 1990, the district court issued its second written order. The district court's order referred to its partially sealed opinion of February 6, 1990 and stated that "no new information or insights were offered to indicate any change in circumstance." On June 14, 1990, The Oregonian filed with this court its second petition for writ of mandamus again asking that we direct the district court to unseal the plea agreement and related documents.
The press has standing to seek review by petition for writ of mandamus of orders denying access to judicial proceedings or documents. Seattle Times Co. v. United States District Court, 845 F.2d 1513, 1515 (9th Cir.1988) (citing United States v. Brooklier, 685 F.2d 1162, 1165 (9th Cir.1982)).
Mandamus is an "extraordinary remedy" that should be invoked only in "exceptional circumstances." Will v. United States, 389 U.S. 90, 95-96, 88 S.Ct. 269, 273-74, 19 L.Ed.2d 305 (1967). The exceptional nature of writs of mandamus stems from the policy against piecemeal review underlying the final judgment rule. Id. at 96-97, 88 S.Ct. at 274; Bauman v. United States District Court, 557 F.2d 650, 653 & n. 4 (9th Cir.1977). This policy applies with particular force in criminal proceedings due to the disruption interlocutory review may engender. See United States v. Harper, 729 F.2d 1216, 1221 (9th Cir.1984).
We have articulated the following guidelines for determining whether mandamus relief is appropriate in a given case:
1. whether the petitioner has no other adequate means, such as direct appeal, to obtain the requested relief;
2. whether the petitioner will be damaged or prejudiced in a way not correctable on appeal;
3. whether the district court's order is clearly erroneous as a matter of law;
4. whether the district court's order is an oft-repeated error or manifests a persistent disregard of the federal rules; and
5. whether the district court's order raises new and important problems or issues of first impression.
Id. at 1221-22; Bauman, 557 F.2d at 654-55. The guidelines are cumulative and a proper disposition requires a balancing of competing factors. Harper, 729 F.2d at 1222.
The Oregonian has established the presence of the first and second factors. We have held that the press lacks standing to bring a direct appeal and, therefore, must seek review of orders denying it access to judicial proceedings or documents by petition for writ of mandamus. Seattle Times, 845 F.2d at 1515 (citing Sacramento Bee v. United States District Court, 656 F.2d 477, 481 (9th Cir.1981), cert. denied, 456 U.S. 983, 102 S.Ct. 2257, 72 L.Ed.2d 861 (1982)). Moreover, without immediate review, the press will face a serious injury to an important first amendment right. Id. The fifth factor is also satisfied because the issue of press access to plea agreements is one of first impression in this circuit. The fourth factor does not apply to this case: the district court has not exhibited an oft-repeated error or a manifest disregard for court rules. Thus, the key factor to be considered is whether the district court's order is clearly erroneous as a matter of law. See Seattle Times, 845 F.2d at 1515; Levine v. United States District Court, 764 F.2d 590, 594 (9th Cir.1985), cert. denied, 476 U.S. 1158, 106 S.Ct. 2276, 90 L.Ed.2d 719 (1986).
Under the first amendment, the press and the public have a presumed right of access to court proceedings and documents. See generally Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510, 104 S.Ct. 819, 824, 78 L.Ed.2d 629 (1985) (Press-Enterprise I ). This presumed right can be overcome only by an overriding right or interest "based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest." Id. "The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered." Id. The question we consider is whether this presumed right of access under the first amendment should be extended to plea agreements and related documents in criminal cases.
The Supreme Court has established a two-part test for determining whether a first amendment right of access extends to a particular kind of hearing. First, we must decide whether the type of proceeding at issue has traditionally been conducted in an open fashion. Second, we must determine whether public access to the proceeding would serve as a curb on prosecutorial or judicial misconduct or would further the public's interest in understanding the criminal justice system. See Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8-9, 106 S.Ct. 2735, 2740, 92 L.Ed.2d 1 (1986) (Press-Enterprise II ); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 605-06, 102 S.Ct. 2613, 2619, 73 L.Ed.2d 248 (1982); Brooklier, 685 F.2d at 1167, 1170-71.
Applying the Press-Enterprise II test, we observe that plea agreements have typically been open to the public. Nothing has been provided to suggest historical practice is to the contrary. In many respects, the plea agreement takes the place of the criminal trial. See Brady v. United States, 397 U.S. 742, 752, 90 S.Ct. 1463, 1471, 25 L.Ed.2d 747 (1970) (). Just as there exists a first amendment right of access in the context of criminal trials, Globe Newspaper Co. v. Superior Court, 457 U.S. at 603, 102 S.Ct. at 2618 (citing Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 558-81, 100 S.Ct. 2814, 2818-29, 65 L.Ed.2d 973 (1980) (plurality opinion)), it should exist in the...
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