U.S. v. Gurney, No. 75-3338

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore GEWIN, AINSWORTH and SIMPSON; SIMPSON
Parties, 3 Media L. Rep. 1081 UNITED STATES of America, Plaintiff-Appellee, v. Edward J. GURNEY et al., Defendants, Miami Herald Publishing Company et al., Movant-Appellants.
Docket NumberNo. 75-3338
Decision Date12 September 1977

Page 1202

558 F.2d 1202
39 A.L.R.Fed. 857, 3 Media L. Rep. 1081
UNITED STATES of America, Plaintiff-Appellee,
v.
Edward J. GURNEY et al., Defendants,
Miami Herald Publishing Company et al., Movant-Appellants.
No. 75-3338.
United States Court of Appeals,
Fifth Circuit.
Sept. 12, 1977.

Page 1204

Parker D. Thomson, Sanford L. Bohrer, Susan W. Diner, Miami, Fla., for Miami Herald.

William C. Ballard, St. Petersburg, Fla., for Times Publishing Co.

John L. Briggs, U. S. Atty., Jacksonville, Fla., Claude H. Tison, Jr., Asst. U. S. Atty., Tampa, Fla., for plaintiff-appellee.

Appeals from the United States District Court for the Middle District of Florida.

Before GEWIN, AINSWORTH and SIMPSON, Circuit Judges.

SIMPSON, Circuit Judge:

Appellants, The Miami Herald Publishing Company (publisher of The Miami Herald ), The Times Publishing Company (publisher of The St. Petersburg Times ), Gene Miller, a reporter for The Miami Herald, and Angel Castillo, a reporter for The St. Petersburg Times, seek review of district court rulings

Page 1205

denying their requests to examine certain trial documents in a criminal proceeding. 1

I. BACKGROUND

The trial in the case of United States v. Edward J. Gurney, et al., began on February 25, 1975. The case involved an incumbent United States senator at the time of indictment and generated considerable public interest. The proceedings were the subject of extensive news coverage. Several accommodations were made by the trial judge for representatives of the news media. Provisions were made for a telephone room for wire service representatives, reserved seating was secured for the press, and convenient but inconspicuous seating was furnished to a newspaper sketch artist.

The district judge discussed jury management questions with counsel before the trial began. Sequestration was considered, but defense counsel chose not to request such action in view of other measures adopted to insulate the jury. The judge admonished the jurors daily not to discuss the case, not to read any newspapers other than those cleared by counsel and given to the jurors by the Clerk, and not to listen to or view broadcasts concerning the trial. The attorneys were informed that the district judge expected to grant appropriate requests to conduct some of the proceedings ancillary and preliminary to the reception of evidence out of the hearing of the public.

After the trial got under way and the government began putting on its case in chief, consisting in large part of documentary proof, the appellant newsmen sought to inspect various documents and exhibits, some of which were in evidence and some of which were only identified. The Clerk refused access to many of these items pursuant to oral directions of the district judge. Appellants then filed their "Petition for Hearing and for Vacation of Restrictions on Press and Other News Media" directed to the district court's denial of access. In this petition, the newspapers and reporters asked the trial court to remove the restrictions on their access to: (1) exhibits offered at trial for identification but not yet admitted; (2) exhibits admitted but not yet read to the jury; (3) exhibits offered but rejected; (4) the transcript of the grand jury testimony of Senator Gurney; (5) the witness list; (6) names and addresses of the jurors; and (7) defense exhibit # 79, a copy of a purported statement of a witness, Larry Williams, to the F.B.I., which had been received in evidence. The petitioners asked further that the judge vacate any prior rulings entered during the trial as to such matters and that he reduce to writing those rulings not vacated.

On July 1, 1975, after conducting a hearing, the district judge entered a written order permitting: (1) inspection of exhibit # 79; (2) inspection of a list of witnesses; and (3) examination by petitioners of exhibits received in evidence, subject to the availability of the Court's trial clerk. He denied: (1) unlimited disclosure of Senator Gurney's grand jury testimony; 2 (2) disclosure of the names and addresses of the jurors; (3) access to the bench conferences with counsel; 3 and (4) access to exhibits identified but not received into evidence.

On July 16, 1975, the district judge orally denied appellants' further request for access to the transcript of a proffer of testimony received by the judge in camera at a bench conference. On July 30, 1975, after the jury was sequestered during its deliberations, appellants asked for leave to inspect a written communication to the judge from

Page 1206

the jury. A similar request was made on July 31, as to a communication from the trial judge to the jury. The district court orally denied both requests. 4 Appellants seek reversal of the district court's rulings. 5

Appellants' primary claim is that the district judge violated their First Amendment rights when he denied the press access to various exhibits and transcripts, the jury list, and the written communications between the judge and the jury. Also at issue is whether the district judge violated the First and Fifth Amendments by failing to: (1) hold a hearing and (2) issue a "special order" 6 regarding each of the appellants' requests to view materials. After careful consideration of the issues presented, we find that the district court's actions did not violate appellants' First or Fifth Amendment rights. Thus, we affirm the district judge's rulings.

II. JURISDICTION

We must consider at the outset the jurisdictional questions of standing, finality, and mootness.

The appellee United States concedes that the reporters and their respective newspapers have standing to challenge the district court's decisions regarding appellants' claimed right of access to the various trial documents. The appellants were the direct targets of the district court's rulings. The two requirements for establishing standing have been met i. e. (1) there is a claim of injury in fact; and (2) the interest sought to be protected is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question. Data Processing Service v. Camp, 397 U.S. 150, 153-54, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970). Appellants have arguably suffered an injury with respect to newsgathering. Moreover, the district court's determinations arguably affected appellants' rights under the First Amendment. See Columbia Broadcasting System, Inc. v. Young, 522 F.2d 234, 237-38 (6th Cir. 1975). We conclude that appellants' standing is established.

The government contends that, although the July 1, 1975, written order was final and appealable, the three subsequent

Page 1207

oral rulings (July 16, 30 and 31) were not final orders, but merely incidental, non-reviewable regulations of trial management.

Title 28, U.S.Code § 1291 provides that "(t)he courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts . . ." The desire for judicial economy and the avoidance of unnecessary piecemeal appeals underlie the final judgment rule. See C. Wright, A. Miller, & E. Cooper, Federal Practice & Procedure: Jurisdiction, § 3911 (1976); 9 J. Moore, Federal Practice P 110.07 (2d ed. 1975).

The "collateral order" doctrine established by the Supreme Court in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), provides an expansive interpretation of the finality requirement. A "collateral order" is one which finally determines a claim of right "separable from, and collateral to, rights asserted" in the main cause of action. Cohen, supra, 337 U.S. at 546-47, 69 S.Ct. at 1225-1226. Four basic requirements generally must be satisfied before a matter is reviewable under the collateral order doctrine. First, the matter must have been finally disposed of by the district court. But, if there is a "plain prospect that the trial court may itself alter the challenged ruling, there is little justification for immediate appellate intrusion. It is enough that no further consideration is contemplated". Wright, Miller and Cooper, supra, § 3911 at 470. Second, the matter reviewed must be "separable from, and collateral to, rights asserted in the action". Cohen, supra, 337 U.S. at 546-47, 69 S.Ct. at 1225-1226. Finally, if denial of review entails the risk of "irreparable injury", and the case involves "a serious and unsettled question", the appeal should be granted. See Wright, Miller and Cooper, supra, § 3911 at 470-71; Moore, supra P 110.10 at 133.

In view of the underlying purpose of the final judgment rule and the particular facts in this case, we believe that the district judge's four rulings in question had sufficient finality to permit appeal. Although the three oral rulings may have lacked procedural formality, the appeal can be justified in light of: (1) the improbability of further consideration by the trial court; (2) the close similarity of issues disposed of by the written order and the oral rulings; and (3) the general importance of the rights involved. Moreover, the questions presented here could affect many other cases. See Wright, Miller and Cooper, supra.

Mootness presents the final procedural hurdle. Appellee concedes that the appeal here is not moot. We agree. Despite the conclusion of the Gurney trial, the specific issues presented by the appellants are of a continuing nature. A case such as this one presents a controversy "capable of repetition yet evading review", Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), because "the underlying criminal proceeding would almost always terminate before the appellate court hears the case". United States v. Schiavo, 504 F.2d 1, 5 (3rd Cir. 1974), cert. denied, 419 U.S. 1096, 95 S.Ct. 690, 42 L.Ed.2d 688. See also Nebraska Press Assn. v. Stuart,, 427 U.S. 539, 96 S.Ct....

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119 practice notes
  • U.S. v. Chagra, Nos. 82-1263
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • March 14, 1983
    ...main action; (3) entails a risk of irreparable injury; and (4) involves a serious and unsettled question of law. United States v. Gurney, 558 F.2d 1202, 1206-07 (5th Cir.1977), cert. denied, 435 U.S. 968, 98 S.Ct. 1606, 56 L.Ed.2d 59 (1978). Applying these tests in Gurney, we found that the......
  • Hunt v. Tucker, No. CV-94-N-1851-NE.
    • United States
    • U.S. District Court — Northern District of Alabama
    • March 9, 1995
    ...press from conferences at the bench and in chambers where such conferences are distinct from trial proceedings); United States v. Gurney, 558 F.2d 1202, 1210 (5th Cir.1977) (holding that "bench conferences between judge and counsel outside of public hearing are an established practice, ... ......
  • O'Hair v. White, No. 79-1397
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 12, 1982
    ...Processing Service Organizations v. Camp, 397 U.S. 150, 153-54, 90 S.Ct. 827, 829-30, 25 L.Ed.2d 184 (1970); United States v. Gurney, 558 F.2d 1202, 1206 (5th Cir. 1977), cert. denied, 435 U.S. 968, 98 S.Ct. 1606, 56 L.Ed.2d 59 (1978); Scenic Hudson Preservation Conference v. FPC, 354 F.2d ......
  • U.S. v. Beckham, POST-NEWSWEEK
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • June 13, 1986
    ...Cir.1982); In re Application of National Broadcasting Company (Myers), 635 F.2d 945, 949 n. 1 (2d Cir.1980); United States v. Gurney, 558 F.2d 1202, 1207 (5th Cir.1977), cert. denied, 435 U.S. 968, 98 S.Ct. 1606, 56 L.Ed.2d 59 (1978); United States v. Schiavo, 504 F.2d 1, 5 (3d Cir.) (en ba......
  • Request a trial to view additional results
119 cases
  • U.S. v. Chagra, Nos. 82-1263
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • March 14, 1983
    ...main action; (3) entails a risk of irreparable injury; and (4) involves a serious and unsettled question of law. United States v. Gurney, 558 F.2d 1202, 1206-07 (5th Cir.1977), cert. denied, 435 U.S. 968, 98 S.Ct. 1606, 56 L.Ed.2d 59 (1978). Applying these tests in Gurney, we found that the......
  • Hunt v. Tucker, No. CV-94-N-1851-NE.
    • United States
    • U.S. District Court — Northern District of Alabama
    • March 9, 1995
    ...press from conferences at the bench and in chambers where such conferences are distinct from trial proceedings); United States v. Gurney, 558 F.2d 1202, 1210 (5th Cir.1977) (holding that "bench conferences between judge and counsel outside of public hearing are an established practice, ... ......
  • O'Hair v. White, No. 79-1397
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 12, 1982
    ...Processing Service Organizations v. Camp, 397 U.S. 150, 153-54, 90 S.Ct. 827, 829-30, 25 L.Ed.2d 184 (1970); United States v. Gurney, 558 F.2d 1202, 1206 (5th Cir. 1977), cert. denied, 435 U.S. 968, 98 S.Ct. 1606, 56 L.Ed.2d 59 (1978); Scenic Hudson Preservation Conference v. FPC, 354 F.2d ......
  • U.S. v. Beckham, POST-NEWSWEEK
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • June 13, 1986
    ...Cir.1982); In re Application of National Broadcasting Company (Myers), 635 F.2d 945, 949 n. 1 (2d Cir.1980); United States v. Gurney, 558 F.2d 1202, 1207 (5th Cir.1977), cert. denied, 435 U.S. 968, 98 S.Ct. 1606, 56 L.Ed.2d 59 (1978); United States v. Schiavo, 504 F.2d 1, 5 (3d Cir.) (en ba......
  • Request a trial to view additional results

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