Oregonian Pub. Co. v. U.S. Dist. Court for Dist. of Oregon, No. 90-70275

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore WALLACE, THOMPSON and FERNANDEZ; DAVID R. THOMPSON
Citation920 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.
Docket NumberNo. 90-70275
Decision Date06 December 1990

Page 1462

920 F.2d 1462
59 USLW 2418, 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.
No. 90-70275.
United States Court of Appeals,
Ninth Circuit.
Submitted Aug. 23, 1990.
Decided Dec. 6, 1990.

Page 1463

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.

DAVID R. THOMPSON, Circuit Judge:

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.

FACTS AND PROCEEDINGS

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

Page 1464

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.

STANDING

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)).

PROPRIETY OF MANDAMUS RELIEF

A. Standard of Review

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.

Page 1465

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...

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386 practice notes
  • State v. Sublett, No. 84856-4
    • United States
    • United States State Supreme Court of Washington
    • November 21, 2012
    ...must be disqualified for bias and to inquire into an attorney's possible conflict of interest); Oregonian Publ'g Co. v. U.S. Dist. Court, 920 F.2d 1462, 1465-66 (9th Cir. 1990) (First Amendment right of access to plea agreements). After applying the experience and logic test, courts have al......
  • U.S. v. Lexin, No. C 06 CR 0043 BEN.
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    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
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    ...positive role in the functioning of the particular process in question." Id; Oregonian Publishing Co. v. United States Dist. Court, 920 F.2d 1462, 1465 (9th Cir. 1990). If these two "considerations of experience and logic" favor disclosure, a qualified First Amendment right of access attach......
  • Bonnichsen v. U.S., Dept. of Army, Civil No. 96-1481-JE.
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    • United States District Courts. 9th Circuit. United States District Court (Oregon)
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    ...compelling the prison to allow television stations access to a prison)16; Oregonian Publishing Co. v. United States District Court, 920 F.2d 1462, 1467 (9th Cir.1990) (request by newspaper for access to sealed plea agreement); EEOC v. Erection Co., Inc., 900 F.2d 168 (9th Cir.1990) (request......
  • Oahu Publications Inc. v. Ahn, No. SCPW–13–0003250.
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    ...access criminal trials may be divided into procedural and substantive elements. Oregonian Pub. Co. v. U.S. Dist. Court for Dist. of Or., 920 F.2d 1462, 1466 (9th Cir.1990). The "procedural prerequisites to entry of an order closing a 133 Hawai'i 498331 P.3d 476 criminal proceeding to the pu......
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385 cases
  • State v. Sublett, No. 84856-4
    • United States
    • United States State Supreme Court of Washington
    • November 21, 2012
    ...must be disqualified for bias and to inquire into an attorney's possible conflict of interest); Oregonian Publ'g Co. v. U.S. Dist. Court, 920 F.2d 1462, 1465-66 (9th Cir. 1990) (First Amendment right of access to plea agreements). After applying the experience and logic test, courts have al......
  • U.S. v. Lexin, No. C 06 CR 0043 BEN.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • May 22, 2006
    ...positive role in the functioning of the particular process in question." Id; Oregonian Publishing Co. v. United States Dist. Court, 920 F.2d 1462, 1465 (9th Cir. 1990). If these two "considerations of experience and logic" favor disclosure, a qualified First Amendment right of access attach......
  • Bonnichsen v. U.S., Dept. of Army, Civil No. 96-1481-JE.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Oregon)
    • June 27, 1997
    ...compelling the prison to allow television stations access to a prison)16; Oregonian Publishing Co. v. United States District Court, 920 F.2d 1462, 1467 (9th Cir.1990) (request by newspaper for access to sealed plea agreement); EEOC v. Erection Co., Inc., 900 F.2d 168 (9th Cir.1990) (request......
  • Oahu Publications Inc. v. Ahn, No. SCPW–13–0003250.
    • United States
    • Supreme Court of Hawai'i
    • July 16, 2014
    ...access criminal trials may be divided into procedural and substantive elements. Oregonian Pub. Co. v. U.S. Dist. Court for Dist. of Or., 920 F.2d 1462, 1466 (9th Cir.1990). The "procedural prerequisites to entry of an order closing a 133 Hawai'i 498331 P.3d 476 criminal proceeding to the pu......
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1 books & journal articles
  • TRANSPARENCY IN PLEA BARGAINING.
    • United States
    • January 1, 2021
    ...Catty. (Press-Enterprise II), 478 U.S. 1, 7 (1986). (64) Id. at 8. (65) Oregonian Publ'g Co. v. U.S. Dist. Ct. for the Dist. of Or., 920 F.2d 1462, 1465 (9th Cir. (66) 6 LAFAVE ET AI.., supra note 39, [section] 24.1(a). (67) Douglas Oil Co. of Cal. v. Petrol Stops Nw., 441 U.S. 211, 219 (19......

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