U.S. v. Beckham

Decision Date13 June 1986
Docket NumberPOST-NEWSWEEK,Nos. 83-1811,83-1812 and 84-1389,s. 83-1811
Citation789 F.2d 401
Parties, 12 Media L. Rep. 2073 UNITED STATES of America, Plaintiff-Appellee, v. Charles BECKHAM, et al., Defendants-Appellees, v.STATIONS, MICHIGAN, INC., et al., Non-Party Appellants.
CourtU.S. Court of Appeals — Sixth Circuit

Maura D. Corrigan, U.S. Atty., Detroit, Mich., for plaintiff-appellee.

Deborah J. Gaskin, Detroit, Mich., Thomas O'Brien, Ann Arbor, Mich., Richard E. Zuckerman, Troy, Mich., Neil H. Fink, Fink & Larene, David F. Dumouchel, David Griem, N.C. Deday LaRene, Detroit, Mich., for defendants-appellees.

John J. Ronayne, III (argued) Chester E. Kasiborski, Jr., Van Til, Kasiborski & Ronayne, Richard E. Rassel, Raymond J. Carey (argued), James E. Stewart, Butzel, Long, Gust, Klein, Van Zile, Bronson Murray, Detroit, Mich., for non-party appellants.

Before JONES, CONTIE and MILBURN, Circuit Judges.

NATHANIEL R. JONES, Circuit Judge.

Members of the news media appeal the district court's denials of permission to copy tape-recordings that were admitted as evidence in a criminal trial, transcripts of these tape-recordings that were used by the jury, and documentary exhibits. They argue that both the Constitution and the common law provide a right to contemporaneous access to copy these materials. On review, we find that the district court's orders did not violate the constitutional rights of the appellants and that, under the common law, the district court did not abuse its discretion in denying permission to copy the tape-recordings and transcripts. We find, however, that the district court did abuse its discretion under the common law in declining to rule on the application to copy the documentary exhibits and in refusing to grant permission to copy the documentary exhibits. Accordingly, we affirm the district court's orders in part and reverse in part.


The criminal prosecution involved in this appeal began in Detroit in the summer of 1983. The defendants, including a city official, were accused of defrauding the City of Detroit. It was public knowledge that the government had audiotapes and videotapes (hereinafter "the tapes") to present at trial. See In re Post-Newsweek Stations, Michigan, Inc., 722 F.2d 325, 327 (6th Cir.1983) (denying petition for writ of mandamus to compel court to release these tapes). In August 1983 the district court held a suppression hearing, but members of the media made no application to inspect or copy the tapes. As described by this Court in Post-Newsweek Stations:

The trial began on September 26, 1983. Arrangements were made to guarantee the press unfettered access to the trial. Front-row seats were reserved for the press; the tapes were played in a manner which permitted public viewing; and all evidentiary rulings were made in open court. The media petitioners first intervened to challenge the closure of jury voir dire. Initially, the voir dire had been conducted in chambers because of excessive pretrial publicity. The defendants, however, withdrew their request to close the voir dire, and the process was moved to the jury room which permitted public viewing. Inexplicably, questions during voir dire did not address the possibility of jury sequestration, despite the extensive pretrial media attention surrounding the case. On September 29, a jury was impaneled.

Testimony in the case began on October 3. On October 5, the district court adjourned the proceedings until October 11 to consider several evidentiary issues. Throughout this time the district court received no formal application from the media for access to the tapes, even though on October 3 it had decided that certain portions of the tapes would be admitted into evidence.

Id. The tapes were broadcast in open court over a loudspeaker. The jurors were given earphones with volume controls. The jurors were also given transcripts of the tapes, which they followed while listening to the tapes. The district court instructed the jurors that only the tapes were evidence. The court explained that the transcripts were a mere visual aid, and it repeated several times that the jurors were not to rely on the transcripts when the tapes were unclear or the transcripts were at variance with the tapes.

Appellants (hereinafter the Media) first attempted to obtain copies of the tapes, transcripts and exhibits by making a request to government counsel. This request was formalized on October 7, 1983, when the Media filed an application to the court for contemporaneous access to all tapes, transcripts and documentary exhibits admitted into evidence or used at trial. The court heard argument on the Media application that same day, but because of the importance of the issues raised, it withheld ruling on the merits for ten days to allow the criminal defendants time to respond. The court refused, however, to stay the criminal proceedings during that ten-day period.

On October 10, 1983, the Media petitioned this Court for a writ of mandamus. In that petition, the Media requested that the district court be compelled either to render a decision on their application or to grant a stay of the criminal proceedings until such decision was rendered. In the alternative, the Media requested an order granting them contemporaneous access to inspect and copy the tapes, transcripts and documentary exhibits. Contemporaneous access is access at the time the evidence is presented in court or at the end of the day in which the evidence is introduced. See app. at 235, 251.

On October 13, the Court denied the Media's petition. On October 17, 1983, the district court issued an order denying the Media's application for contemporaneous access to the tapes. The Media then moved for a clarification of the order, seeking to determine whether the order also denied access to the transcripts and other documentary exhibits. In response to this motion for clarification, the district court on October 21 issued a second order that denied contemporaneous access for the purpose of copying the transcripts, but granted the right to inspect all documentary trial exhibits. The order stated, however, that the court was "not ruling on petitioners' application to copy these trial exhibits." App. at 170, 185.

The Media made another attempt to gain access to the tapes and transcripts, and the right to copy the documentary trial exhibits, by making a request at the conclusion of proofs in the criminal trial. The district court denied this request on the ground that the jury was not yet discharged, and that after the jury deliberation the court would no longer have possession nor supervisory control over the evidence. App. at 176.

Shortly thereafter, this court issued its opinion regarding the denial of the Media's mandamus petition. We found that the district court had not rendered a final appealable order and that mandamus was not appropriate when the only conduct at issue was the discretionary granting of a ten-day delay for additional study and briefing. In Re Post-Newsweek Stations, Michigan, Inc., 722 F.2d 325 (6th Cir.1983).

The jury was dismissed on December 13, 1983, having reached guilty verdicts against three defendants on some counts, but having been unable to render a verdict on the remaining defendants and counts. Retrial was scheduled to begin in February 1984, but was later adjourned.

In January 1984, the Media filed applications for contemporaneous access to the tapes, transcripts and documentary trial exhibits, in anticipation of the second trial. Argument was heard on these applications on February 10 and June 7. On June 7, 1984, the district court stated that

With respect to the media's renewed request for contemporaneous access to the documentary exhibits, we have again determined that contemporaneous access to the documentary exhibits does not threaten defendants' due process right to a fair trial. Accordingly, we direct the Assistant United States Attorney in charge of this case to submit to the United States Marshal, at the close of each day, all of the documents that are put into evidence on that day. The Marshal will then make these exhibits available to the media.

App. at 282. Apparently under the local rules of court, the district court does not take custody of trial exhibits, and the parties are responsible for their own exhibits. See app. at 166. The district court denied the Media's request for contemporaneous access to the tapes and transcripts:

We, therefore, conclude that on balance the media's common law right of access does not entitle it to contemporaneous access to the audio and visual tapes introduced into evidence. We do not find it an undue burden on this common law right, in light of the important constitutional fair trial rights of the defendants to delay access until the conclusion of all the evidence.

App. at 285. The Media filed appeals from the district court's final orders of October 17 and 21, 1983, and June 7, 1984.

On June 14, 1984, this Court denied the Media's requests to (1) stay the retrial, (2) advance consideration of the appeal, and (3) reverse the district court's order and remand with directions to enter orders permitting appellants to inspect and copy all audio and video tapes, transcripts of tapes or exhibits contemporaneously with their introduction or use at trial.

The retrial of the criminal case, which commenced on June 18, 1984, ended with guilty verdicts on August 14, 1984. The Media then sought copies of the tapes from the United States Attorney's office, which responded that it required guidance from the district court. On August 23, 1984, the Media filed a request for post-trial access to copy the audio and video tapes that had been introduced into evidence. There was no request for copies of the transcripts or documentary exhibits.

In a post-trial hearing, the government agreed to provide copies of...

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