U.S. v. Criden

• Decision Date: 26 March 1982
• Docket Number: 80-2482,Nos. 80-2309,s. 80-2309
• Parties: 8 Media L. Rep. 1297 UNITED STATES of America v. Howard L. CRIDEN, Harry P. Jannotti, Louis C. Johanson, George X. Schwartz. Appeal of PHILADELPHIA NEWSPAPERS, INC.
• Court: U.S. Court of Appeals — Third Circuit

Page 550

675 F.2d 550

8 Media L. Rep. 1297

UNITED STATES of America v. Howard L. CRIDEN, Harry P. Jannotti, Louis C. Johanson, George X. Schwartz.

Appeal of PHILADELPHIA NEWSPAPERS, INC.

Nos. 80-2309, 80-2482.

United States Court of Appeals,

Third Circuit.

Argued Oct. 28, 1981.

Decided March 26, 1982.

Samuel E. Klein (argued), Kohn, Savett, Marion & Graf, P.C., Philadelphia, Pa., for appellant.

Curtis R. Reitz, Philadelphia, Pa. (argued), Judith N. Renzulli, Wilson & Whittington, Wilmington, Del., for amici curiae.

Before SEITZ, Chief Judge, and VAN DUSEN and GIBBONS, Circuit Judges.

OPINION OF THE COURT

SEITZ, Chief Judge.

Philadelphia Newspapers, Inc. (PN) appeals from the district court's denial of its motion for immediate access to the transcript of a pretrial hearing held in camera. PN also appeals from the granting of defendant Howard Criden's motion to conduct a pretrial hearing in camera. This court has jurisdiction over the appeals under 28 U.S.C. § 1291 (1976). See United States v. Cianfrani, 573 F.2d 835, 845 (3d Cir. 1978), implicitly overruled on other grounds in Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979).

I. Facts

A. Transcript of the July 18 Hearing

This case arises from the Government's joint prosecution of four "Abscam" defendants, three of whom filed motions to suppress statements they gave to FBI agents. Accompanying Criden's motion was a letter requesting that the district court seal and impound his motion and that the court consider the motion entirely in camera. Criden stated in another letter that the Government did not object to closure. The Government proposed that the document be sealed pursuant to local court rule 4(c), which appears to be limited to protection of the confidentiality of grand jury proceedings. ¹ The letters, Criden's motion to suppress statements, and the Government's responses to defendants' motions to suppress were not noted on the docket until August 1981.

On July 18, 1980, a reporter for The Philadelphia Inquirer observed witnesses entering judicial chambers. The reporter made inquiry and was informed that testimony was being taken in camera. The closed evidentiary hearing was not announced in open court, and no prior notice was given to the public. The reporter requested access to the hearing, but was advised that the subject matter was confidential. On July 21, PN filed a motion to intervene in the pending cases and a motion for immediate access to the July 18 transcript. The court did not act on the first motion, ² but denied the second. It filed two memoranda concurrently, one publicly and one under seal. ³

In the public memorandum, the court did not disclose the nature either of the proceedings or of the motions to which the hearings were addressed, finding that the subject of the hearings involved "matters, the pretrial disclosure of which would inevitably impair or destroy the rights of both the Government and the defendant to a fair trial before an impartial tribunal." PN appealed from the order denying access to the July 18 transcript.

B. September Due Process Hearings

The second hearing at issue involved the defendants' pretrial motions for dismissal of the indictments on the grounds of Government overreaching and entrapment. The district court severed the trials of Schwartz and Jannotti from those of Criden and Johanson, but did not act on the motions to dismiss until after the trial of Schwartz and Jannotti. Criden and Johanson have not been tried in the United States District Court for the Eastern District of Pennsylvania, and indeed, the Government has moved to dismiss the indictments against them.

During the hearing on September 24 on the pretrial motions for dismissal of the indictments, defendants proposed to call as witnesses Criden and Angelo Errichetti, who faced an Abscam indictment in another federal district court. During a side-bar conference, counsel for Criden moved that testimony of his client be taken in camera. At the end of the conference, the court announced to those in the courtroom that "defendants who have not yet been tried or who await further trial are entitled to be heard in chambers regarding the substance of the case, and therefore this hearing will be closed to the public and the press."

After an hour recess, the court stated that it had received a request that the evidentiary hearing not be closed. The district court invited argument from any interested person. Counsel for Criden contended that the hearing was in the nature of a pretrial hearing and that the information to be brought out, if publicized, would impair Criden's right to a fair trial. The court ruled that counsel had made "a prima facie case for closing the hearing." Counsel for PN opposed closure, incorporating by reference argument made in support of PN's July 21 motion and asserting further that the matter was no longer just a pretrial proceeding.

The court ruled that any testimony of Criden, Errichetti, and Johanson would be taken in camera. The court noted that, as to Criden, Errichetti, and Johanson, the case was still in pretrial stages and that their testimony on the pending motions would not be admissible against them in their subsequent trials. The court filed a written order closing the proceeding.

PN appealed from this order. ⁴

II. Jurisdiction

PN appealed from two orders: one denying access to the transcript of the July 18 hearing and the other denying access to the September 24 hearing. Transcripts of both hearings are now available to the public, ⁵ and it is arguable that the cases are moot. Some cases, however, are reviewable as disputes that are "capable of repetition, yet evading review." Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911). The United States Supreme Court has stated that " 'in the absence of a class action, the "capable of repetition, yet evading review" doctrine was limited to the situation where two elements combined: (1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again.' " Murphy v. Hunt, --- U.S. ----, ----, 102 S.Ct. 1181, 1183, 71 L.Ed.2d 353 (1982)(per curiam) (quoting Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 348, 46 L.Ed.2d 350 (1975) (per curiam)).

We believe the two appeals before us are not moot under the standard stated in Murphy. In Gannett, the Court stated: "The order closing a pretrial hearing is too short in its duration to permit full review. And to the extent the order has the effect of denying access to the transcript .... (t)he order is 'by nature short-lived.' " 443 U.S. at 377, 99 S.Ct. at 2904 (quoting Nebraska Press Assn. v. Stuart, 427 U.S. 539, 547, 96 S.Ct. 2791, 2797, 49 L.Ed.2d 683 (1976)). Further, it is reasonable to expect that PN, a major newspaper publisher in the Philadelphia area, will be subjected to similar closure orders entered by the district courts in this circuit. See Gannett, 443 U.S. at 377-78, 99 S.Ct. at 2904-05. We therefore turn to the merits.

III. Arguments

PN contends that the public has a right of access to pretrial proceedings in criminal cases, guaranteed by the first amendment, which is enforceable absent clear and convincing evidence that shows to a substantial probability that: (a) irreparable damage to a fair trial will result from conducting public proceedings; (b) alternatives to closure will not protect adequately the right to a fair trial; and (c) closure will be effective in protecting against the perceived harm. PN also argues that the district court in this case erred because it closed the hearings: (a) without providing the public with notice and an opportunity to be heard on the issue of closure; (b) without taking evidence of the factors of likely prejudice and the efficacy of alternative means of preserving a fair trial; and (c) without articulating in writing the reasons justifying the closure. PN urges this court to reverse the orders of the district court and order the immediate release of the transcripts of all in camera hearings conducted to date.

Amici curiae argue that it was not an abuse of discretion for the district court to close the pretrial hearing because: (1) there was a reasonable likelihood that dissemination of information which might be disclosed in the closed hearing would impair the defendants' right to a fair trial; (2) reasonable alternatives to closure would not adequately protect that right; and (3) the limitations imposed extended no further than the circumstances required to protect that right. Amici curiae contend that the district court met appropriate procedural requirements for pretrial criminal hearings by: (1) assuring that a complete record was made of proceedings leading to a decision to conduct closed hearings; (2) articulating for the record the reasons for its decision to hold the hearings in camera; and (3) assuring that a complete record was made of evidentiary proceedings conducted outside the presence of the public.

IV. Discussion

We hold that: (1) the public has a first amendment right of access to pretrial suppression, due process, and entrapment hearings; (2) that motions for closure of such hearings must be posted on the docket to give notice to the public; and (3) that a district court, before closing a pretrial hearing, must consider alternatives to closure and state on the record its reasons for rejecting them. We conclude that the district court in closing the July 18 hearing, and thus in denying PN access to a transcript of the hearing, failed to articulate its reasons for rejecting alternatives to closure and failed to give appropriate notice of the motion to close. We also conclude that the district court in closing the September 24 hearing failed to articulate its reasons for rejecting alternatives to...