U.S. v. Graham

• Decision Date: 01 August 2000
• Docket Number: WOKR-TV,WHEC-TV,Docket Nos. 01-1106,01-1108,01-1107,01-1109
• Citation: 257 F.3d 143
• Parties: (2nd Cir. 2001) UNITED STATES OF AMERICA, Appellee, v. DARRYL T. GRAHAM, ANTHONY F. LEONARDO, Jr., ALBERT M. RANIERI, Defendants-Appellants, 10,13, Intervenors,
• Court: U.S. Court of Appeals — Second Circuit

Page 143

257 F.3d 143 (2nd Cir. 2001)

UNITED STATES OF AMERICA, Appellee, v. DARRYL T. GRAHAM, ANTHONY F. LEONARDO, Jr., ALBERT M. RANIERI, Defendants-Appellants, WHEC-TV 10, WOKR-TV 13, Intervenors,

Docket Nos. 01-1106, 01-1107, 01-1108, 01-1109

August Term, 2000

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: April 26, 2001

Decided: July 16, 2001

Defendants appeal from an order of the District Court for the Western District of New York (Larimer, C.J.) directing that the media intervenors be allowed to inspect and copy audio and video tapes played at the defendants' pretrial detention hearing. We affirm. [Copyrighted Material Omitted] JOHN F. SPERANZA, Rochester, NY (Attorney for Anthony F. Leonardo, Jr.), & MICHAEL J. TALLON, Pittsford, NY (Attorney for Albert M. Ranieri) (Jay Ovsiovitch forWilliam Clauss, Federal Defender, Western District of New York (Attorney for Darryl T. Graham) on the brief), for Defendants-Appellants.

SHARON P. STILLER, Underberg & Kessler LLP, Rochester, NY (Christopher D. Thomas, Nixon Peabody LLP, Rochester, NY, on the brief), for the Intervenors.

Before: JACOBS, PARKER, KATZMANN, Circuit Judges.

KATZMANN, Circuit Judge:

In this appeal, we are asked to determine whether the District Court for the Western District of New York (Larimer, C.J.) erred in ordering that copies of certain audio and video tapes presented by the government at a pretrial detention hearing be made available to members of the broadcast media. We hold that the tapes played at the pretrial hearing are "judicial records" subject to the common law right of copying and inspection, and that the defendants have not overcome the strong presumption in favor of access to the tapes. We therefore affirm the order of the district court and vacate the temporary stay of the district court's order issued by this Court pending this appeal.

Background

On December 29, 2000, Darryl T. Graham, Anthony Leonardo, Jr., and Albert M. Ranieri were arrested by federal agents and charged with conspiracy to possess with intent to distribute and to distribute cocaine.¹ On that date, Magistrate Judge Jonathan W. Feldman ordered the defendants detained pending a detention hearing set for January 4, 2001. However, on January 4, a grand jury returned two indictments against the defendants. The first charged Mr. Leonardo and Mr. Graham with conspiracy to possess with intent to distribute and to distribute 5 kilograms or more of cocaine in violation of 21 U.S.C. § 846. The second charged Mr. Leonardo and Mr. Ranieri with an identical drug conspiracy count and with the use of a firearm in relation to a drug trafficking crime in violation of 21 U.S.C. § 924(c)(1). That same day, the defendants were arraigned and pleaded not guilty to the charges set forth in the indictments. The detention hearing was rescheduled for January 11, 2001.

On January 9, 2001, the defendants moved to seal the courtroom during the detention hearing, arguing that their right to a fair trial would be irreparably prejudiced if certain audio and video tapes that the government intended to present at the hearing were revealed to the public. The government opposed this motion. The Magistrate Judge notified the media of the motion, and invited them to intervene. Several press and broadcast media organizations accepted the invitation. The Magistrate Judge also ordered that the government submit under seal for in camera review a proffer setting forth the evidence it intended to present at the hearing. Oral argument was held on January 12, 2001, and the Magistrate Judge issued an written decision later that day granting in part and denying in part the defendants' motion.

In his January 12, 2001 Decision and Order, the Magistrate Judge divided the evidence listed in the government's proffer into three categories. "Category One" encompassed factual allegations related to the charges then pending against the defendants. "Category Two" included allegations regarding a 1990 unsolved armored truck robbery. As noted by the Magistrate Judge, Mr. Ranieri had been the driver of the armored truck involved in that robbery. "Category Three" encompassed "factual allegations involving one or more of the defendants which have not been previously subject to disclosure to the public through the media or otherwise." In the words of the Magistrate Judge, "[t]his final category is unique in the sense that it alleges specific uncharged conduct that is of such a nature that... the defendants would have a strong legal and factual argument that it is irrelevant, if not inadmissible, on the charges currently set forth in the pending indictments."

The Magistrate Judge granted the defendants' motion with respect to the Category Three evidence, finding that the allegations comprising that category -- which were "of the most serious nature" -- were irrelevant to the charges pending against the defendants, and had yet to be disclosed to the public. He concluded that at that time, "there exist[ed] a very real danger that public dissemination of the category three evidence would create a substantial probability of prejudice to the defendants in this case."

By contrast, the Magistrate Judge found that the information contained in Categories One and Two was already, in one form or another, within the public domain. With respect to the allegations in Category One, the Magistrate Judge noted that the criminal complaints filed against the defendants "specifically refer to and describe meetings between and among the defendants, many of which also involve a confidential informant.... Indeed, the complaints describe the substance of many... conversations and contain inculpatory verbatim quotes of the defendants as they allegedly engage in drug trafficking activities." As for the information contained in Category Two, the Magistrate Judge stated that "[a]lthough the [armored truck] robbery occurred in 1990, media attention to the story and specifically concerning Albert M. Ranieri can be fairly described as extensive and unwavering." Given the already substantial reporting as to the allegations contained in Categories One and Two, the court denied the defendants motion as to those categories. The Magistrate Judge noted that counsel remained free to avail themselves of "alternative approaches" such as requests for intensive voir dire, additional peremptory challenges, or a change of venue "should they believe their clients' right to a fair trial is threatened by prejudicial pretrial media coverage."

Accordingly, the Magistrate Judge ordered that the courtroom remain open during the detention hearing, except for that portion of the hearing that concerned Category Three information, during which the courtroom would be closed. The defendants appealed the Magistrate Judge's order to Chief Judge David G. Larimer, and the media intervenors cross-appealed. Chief Judge Larimer conducted his own in camera review of the proffer material and, after oral argument held on January 16, 2001, orally affirmed the Magistrate Judge's order in all respects.

On January 18, 2001, the detention hearing was held before the Magistrate Judge. During the portion of the hearing held in open court, the government played excerpts from a number of audio and video tapes featuring conversations between and among the defendants and a confidential informant, Anthony P. Delmonti. After the defendants presented their evidence, the courtroom was closed so that the Magistrate Judge could consider the Category Three evidence. The following day, the Magistrate Judge ordered Mr. Graham detained based on his risk of flight, and ordered Mr. Leonardo and Mr. Ranieri detained because of the danger they would pose to the community if released. These orders were not appealed.

One week later, one of the media intervenors, WHEC TV-10, made a motion to the district court requesting that the court permit "the copying of all video tapes and audio tapes played during that part of defendants' detention hearing which was open to the public." A second media outlet, WOKR TV-13, joined in this motion shortly thereafter. The media intervenors did not seek to unseal the information regarding Category Three evidence, and did not request permission to copy tapes played during the portion of the detention hearing that had been closed to the public. The defendants opposed the motion. Finding that the defendants had failed to make a showing of prejudice substantial enough to overcome the strong presumption of access to judicial records long recognized in this Circuit, the district court granted the intervenors' motion and ordered the government to turn over copies of the tapes played at the open session of the detention hearing. On February 26, the district court denied the defendants an opportunity to reargue the motion, but did stay its order until 5:00 P.M. that day. On February 27, this Court ordered a further stay of the district court's order pending this expedited appeal.

Appellate Jurisdiction and Standard of Review

Although the district court's order is not a final judgment, we have jurisdiction over the defendants' appeal from the order under the collateral order doctrine. See generally Cohen v. Beneficial Indus. Loan Corp, 337 U.S. 541, 545-47; Whiting v. Lacara, 187 F.3d 317, 319-320 (2d Cir. 1999); see also In re Application of Nat'l Broad. Co. (United States v. Myers), 635 F.2d 945, 949 n.2 (2d Cir. 1980) ("Myers"). The collateral order doctrine, "a narrow exception to the general rule that interlocutory orders are not appealable as a matter of right," see Schwartz v. City of New York, 57 F.3d 236, 237 (2d Cir. 1995), "'is limited to trial court orders affecting rights that will be irretrievably lost in the absence of an immediate appeal,'" see Whiting, 187 F.3d 317 at 319 (quoting Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 430-31 (1985)). "To fit within the collateral order exception, the interlocutory order must: "[i]...