U.S. v. Brooklier

• Decision Date: 31 August 1982
• Docket Number: Nos. 80-5808,80-7556,s. 80-5808
• Citation: 685 F.2d 1162
• Parties: 8 Media L. Rep. 2177 UNITED STATES of America, Plaintiff-Appellee, v. Dominick Phillip BROOKLIER, Samuel Orlando Sciortino, Louis Tom Dragna, Michael Rizzitello, Jack Locicero, Defendants, The Times Mirror Company, Publisher of the Los Angeles Times, and Gene Blake, Non-Party Appellants. The TIMES MIRROR COMPANY and Gene Blake, Petitioners, v. UNITED STATES DISTRICT COURT FOR the CENTRAL DISTRICT OF CALIFORNIA, Respondent, and Dominick Phillip Brooklier, et al., Real Parties.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1162

685 F.2d 1162

8 Media L. Rep. 2177

UNITED STATES of America, Plaintiff-Appellee, v. Dominick Phillip BROOKLIER, Samuel Orlando Sciortino, Louis

Tom Dragna, Michael Rizzitello, Jack Locicero, Defendants,

The Times Mirror Company, Publisher of the Los Angeles

Times, and Gene Blake, Non-Party Appellants.

The TIMES MIRROR COMPANY and Gene Blake, Petitioners, v. UNITED STATES DISTRICT COURT FOR the CENTRAL DISTRICT OF

CALIFORNIA, Respondent,

and

Dominick Phillip Brooklier, et al., Real Parties.

Nos. 80-5808, 80-7556.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 14, 1981.

Decided Aug. 31, 1982.

Robert S. Warren, Gibson, Dunn & Crutcher, Los Angeles, Cal., for Time Mirror Co.

Frank Gooch, Flint & MacKay, Los Angeles, Cal., for amicus Hearst.

Michael D. Dempsey, Rogers & Wells, Los Angeles, Cal., for Newsweek, Assoc. Press.

Howard Gillingham, Los Angeles, Cal., for Brooklier, et al.

Alexander Williams, Asst. U. S. Atty., Los Angeles, Cal., for U. S. A.

Appeal from the United States District Court for the Central District of California.

Before BROWNING, Chief Judge, KENNEDY and HUG, Circuit Judges.

BROWNING, Chief Judge:

An indictment was returned charging a number of defendants with violations of the Racketeer Influenced and Corrupt Organizations Act (RICO) 18 U.S.C. §§ 1961-1968. The indictment alleged defendants were members of a criminal enterprise known as "La Cosa Nostra" engaged in extorting money from dealers in pornographic material through violence and fear, and had committed other illegal acts, including murder, to prevent exposure of the extortion scheme.

The Times Mirror Company, a newspaper publisher, and Gene Blake, a Times Mirror reporter, seek review by appeal and petition for mandamus of four orders of the district court barring access by the media and the public to certain portions of the proceedings under the indictment.

Times Mirror and Blake filed an Emergency Petition for Writ of Mandamus or Prohibition and a notice of appeal in this court while the trial was still in progress. Argument was heard on the petition. On the same day the jury returned a verdict convicting the defendants. The district court released the transcripts of the closed proceedings. This court declined to issue an emergency writ and consolidated the petition for writ of mandamus with the pending appeal.

I.

Although the trial has long since ended and transcripts of the closed proceedings have been released, the controversy is not moot since closure orders of the kind involved here are capable of repetition, yet evade review. Globe Newspaper Co. v. Superior Court, --- U.S. ----, ----, 102 S.Ct. 2613, 2618, 73 L.Ed.2d 248 (1982); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 563, 100 S.Ct. 2814, 2821, 65 L.Ed.2d 973 (1980); Gannett Co. v. De Pasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979); Sacramento Bee v. United States District Court, 656 F.2d 477, 480 (9th Cir. 1981).

The United States suggests closure is not likely to be repeated in view of the recent adoption and implementation by the Department of Justice of regulations recognizing "the vital public interest in open judicial proceedings," and the government's "general overriding affirmative duty to oppose their closure." 28 C.F.R. § 50.9. We are not persuaded. The government did not seek the closures that occurred in this case, and nothing in the record suggests opposition by the government would have prevented them.

II.

This circuit has not recognized standing to appeal in persons such as Times Mirror and Blake who, though denied access to the proceedings, were not parties to the case below. United States v. Sherman, 581 F.2d 1358, 1360 (9th Cir. 1978). But see United States v. Criden, 675 F.2d 550, 552 (3d Cir. 1982); Belo Broadcasting Co. v. Clark, 654 F.2d 423, 425-26 (5th Cir. 1981); United States v. Hubbard, 650 F.2d 293, 309 (D.C.Cir.1980). The appeal is therefore dismissed.

We have, however, recognized standing in such persons to seek review by petition for writ of mandamus of orders denying them access to the proceedings. United States v. Sherman, supra, 581 F.2d at 1360; Sacramento Bee, supra, 656 F.3d at 480-81. We therefore review the closure orders entered here on the petition for mandamus.

III.

Petitioners challenge four orders of the district court: an order partially closing the voir dire of prospective jurors; an order closing a hearing on a motion by a defendant to exclude from evidence a statement given by the defendant to the FBI; an order closing a hearing on a motion by a non-party to exclude from evidence certain tapes of interviews between the non-party and a government witness; and an order refusing to release the transcripts of these three in camera proceedings immediately rather than at the close of trial.

Petitioners contend each of these orders violates the first amendment right of the public, including the media, to access to criminal proceedings established by Richmond Newspapers, supra, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973. We do not reach the questions whether the closure orders were justified. We conclude that the district court did not satisfy the procedural prerequisites to entry of a closure order reflected in Gannett, Richmond Newspapers, and Globe Newspaper.

We consider the orders in turn.

A. Voir Dire

Two earlier indictments had been quashed, and pretrial proceedings under the third indictment were protracted. Three years elapsed between the return of the original indictment and the commencement of jury selection. The prosecution excited considerable public interest, and media coverage was fairly extensive during this period.

Selection of the jury began September 30, 1980. After questioning the potential jurors as a group in open court, the trial judge closed the voir dire to the media and the public and questioned prospective jurors individually in camera.

The record reveals no contemporaneous objection. When the voir dire began the next day, however, the trial judge noted there had been "a flurry of inquiries from the media wanting to know why they cannot be in my chambers, too." The court stated formal motions might be filed by the media based upon Gannett, and the court had therefore re-examined Gannett and had concluded that "on any sort of balancing test" the defendants' sixth amendment rights required closure. Later that day, the court announced it had received a note from a newspaper reporter requesting the remaining voir dire be opened. Defense counsel objected. The court indicated the request would be denied.

Two days later, on October 2, counsel for CBS, Inc., was heard in open court on an oral motion to open the voir dire. Counsel for defense and the government indicated they did not wish to change the in camera procedure, and the court denied CBS's motion.

The court noted it had rejected sequestering the jury as "a more extreme measure" than closure of a portion of the voir dire. The court stated it had weighed the first amendment rights of the media against the sixth amendment rights of the defendants in deciding to conduct individualized voir dire in chambers. The only specific reason given by the court for adopting this procedure was that potential jurors would answer more freely and spontaneously if questioned alone rather than in the presence of other potential jurors, and without hearing the others' answers. At a later point in the record, the court stated the voir dire was not closed to keep the media and the public out but to keep the other jurors away, "to have as small a setting as possible to elicit from the individual jurors some of the more initmate kinds of thinking on their part... It couldn't be done in as large a setting as would be required if we were to have the media present as well." The court repeated that after weighing the first and sixth amendment rights involved, the court believed it was necessary to continue to exclude the media from the voir dire of individual jurors "to give defendants as fair a trial as they can possibly have." The court referred to the "problems of publicity," described later in the record as a "large amount of (publicity) that could in some way prejudice them from being fair jurors." The court concluded, "it has become my duty to try to insulate these jurors from that as much as possible to insure that we have a fair and impartial jury." The court said a daily transcript of the voir dire was being prepared and would be made available and that the court did not anticipate any other portion of the case would be closed. The voir dire remained closed until concluded on October 10.

The government contends the public's first amendment right of access to criminal proceedings recognized in Richmond Newspapers applies only to "trials," that voir dire is a pre-trial procedure, and that the public therefore has no right of access to voir dire. We disagree. The voir dire is generally considered "part of the trial itself," Commercial Printing Co. v. Lee, 262 Ark. 87, 553 S.W.2d 270, 271 (1977); Great Falls Tribune v. District Court, 608 P.2d 116, 120-21 (Mont.1980). The Eighth Circuit has applied the right of public access to the voir dire without discussion. United States ex rel. Pulitzer Publishing Co., 635 F.2d 676 (8th Cir. 1980).

Moreover, the two principal considerations underlying the public's first amendment right of access to criminal proceedings-"(f)irst, the criminal trial historically has been open to the press and general public," and "(s)econd, the right of access to criminal trials plays a particularly significant role in the functioning of the judicial process and the government as a whole," Globe Newspaper, supra, --- U.S. at ----, 102 S.Ct. at 2619-20-apply to voir dire.

Under current practice, voir dire is normally conducted in open court. No evidence has been cited that historical practice was to the contrary.

There can be no doubt of the importance of public...