U.S. v. Inzunna, 03CR2434JM.

• Citation: 303 F.Supp.2d 1041
• Decision Date: 05 February 2004
• Docket Number: No. 03CR2434JM.,03CR2434JM.
• Court: U.S. District Court — Southern District of California
• Parties: UNITED STATES of America, Plaintiff, v. Ralph INZUNZA, et al., Defendants.

303 F.Supp.2d 1041

UNITED STATES of America, Plaintiff, v. Ralph INZUNZA, et al., Defendants.

No. 03CR2434JM.

United States District Court, S.D. California.

February 5, 2004.

Guylin Cummins, Esq., Gray Cary Ware & Freidenrich, San Diego, CA, Counsel for Copley Press, Inc.

Robert Ciaffa, Esq, Michael Wheat, Esq., Paul Cook, Esq., San Diego, CA, Counsel for Plaintiff.

R.J. Coughlan, Jr., Coughlan, Semmer & Lipman, LLP, San Diego, CA, Counsel

for Michael Zucchet: (and specially appearing for Ralph Inzunza and David Cowan).

Dominic Gentile, Esq., Law Offices of Dominic Gentile, Las Vegas, NV, Counsel for Lance Malone.

Frank Ragen, II, Esq., Law Offices of Frank Ragen, San Diego, CA, Counsel for Charles Lewis.

ORDER GRANTING MOTION TO ITERVENE; DENYING MOTION FOR ACCESS TO SEALED COURT DOCUMENTS

MILLER, District Judge.

INTRODUCTION

This case presents the question whether the qualified First Amendment right of public access attaches to Title III wiretap materials and search warrant affidavits following the return of indictments but prior to a substantive challenge to those materials. The Copley Press, Inc. ("Copley"), publisher of The San Diego Union-Tribune, moves to intervene in this action to obtain access to all sealed records filed with the court in this case. The Government and Defendants Ralph Inzunza, Michael Zucchet, and Charles Lewis (collectively "Council Members") oppose the motion. Defendant Lance Malone appeared at the hearing and voiced his nonopposition to Copley's motion. Having carefully considered the record, pertinent legal authorities, and the arguments of counsel, the court grants the motion to intervene but denies the motion for access to sealed records without prejudice.

BACKGROUND

Because the parties are familiar with the allegations contained in the indictment, the court provides only a brief summary of the counts set forth in the indictment. On August 28, 2003 Defendants Council Members, Lance Malone, Michael Galardi, John D'Intino, and David Cowan were charged in a 39 count indictment. All Defendants except David Cowan are charged in Count 1 with conspiracy to commit wire fraud, in violation of 18 U.S.C. § 371. Counts 2-34 identify 33 separate acts whereby Defendants (except Cowan) allegedly used wire communications in interstate commerce in furtherance of the alleged conspiracy to defraud the public of their intangible right to honest service, in violation of 18 U.S.C. § 1346, and wire fraud, in violation of 18 U.S.C. § 1343. Count 35 and 36 allege that, on February 7, 2002 and again on October 14, 2002, Defendant Inzunza, aided by Zucchet, Galardi, Malone and D'Intino, unlawfully affected interstate commerce by "unlawfully obtain[ing] money from defendants Galardi, Malone, and D'Intino for the benefit of defendant Zucchet" in violation of 18 U.S.C. §§ 1951 (the Hobbs Act) and 1952 (Interstate Transportation in Aid of Racketeering). Counts 37 and 38 allege that Defendants Galardi, Malone, and D'Intino engaged in bribery of a police officer on May 4, 2001 and October 18, 2002 in violation of Cal.Penal Code § 67.5, all in violation of 18 U.S.C. §§ 1951 and 1952. Count 39 alleges that Defendant Cowan made a willful and materially false statement to the FBI when he stated "that he never discussed with Lance Malone the `no-touch' provision" of the San Diego ordinance in violation of 18 U.S.C. § 1001.

On December 4, 2003 the Government filed its response and opposition to Defendants' discovery motions related to possible Government misconduct. In that response, the Government submitted to the court, under seal, nine pages of intercepted telephone conversations. The Government submitted transcripts of the intercepts to support its argument that the undercover agent "had only one, exceedingly brief, telephonic contact with Defendants Inzunza and Lewis, separately." (Response at p. 6:17-19). At the time of the December 11, 2003 motions hearing, Defendants withdrew their discovery motion with respect to possible government misconduct, without prejudice, subject to renewal at a later date. Shortly thereafter, Copley filed its motion to unseal the transcript placed under seal as well as "all sealed records." (Motion at p. 1:9-10). In response to Copley's motion, the Government filed under seal copies of the intercepted telephone transcripts earlier submitted and the federal search warrant affidavit executed on May 14, 2003.

DISCUSSION

Motion to Intervene

Neither the Government nor Copley dispute that the public and press have a presumptive qualified right to seek access to pretrial criminal proceedings and documents. Whether the court treats the motion to intervene as a miscellaneous civil motion seeking access to court records, see In re Application of New York Times, 708 F.Supp. 603, 604 (S.D.N.Y.1989), or as a motion to intervene pursuant to Federal Rule of Civil Procedure 24(b), the result is the same. Copley has standing to seek access to court records.

Motion for Access to Sealed Records

The First Amendment recognizes "a general right to inspect and copy public records and documents, including judicial documents and records." Phoenix Newspapers v. United States Dist. Court, 156 F.3d 940, 946 (9th Cir.1998) (quoting Nixon v. Warner Communications, 435 U.S. 589, 597, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978)). However, "there is no right of access which attaches to all judicial proceedings, even all criminal proceedings." Id.; Times Mirror Co. v. United States, 873 F.2d 1210, 1217 (9th Cir.1989). In addition to a constitutional right of access, "there is a strong presumption in favor of the common law right to inspect and copy

judicial records." Phoenix Newspapers, 156 F.3d at 946.

Press-Enterprise II

Any discussion of the qualified First Amendment right of public access to criminal proceedings and records must begin with the leading case of Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) (Press-Enterprise II). Press-Enterprise II sets forth the analytical framework to be followed in a case such as this. Under the two-step framework adopted by the Supreme Court, the court determines in the first instance whether a qualified First Amendment right of access attaches to the proceeding or documents at issue and, if so, then the court determines whether closure serves a compelling interest. The first step "emphasize[s] two complementary considerations" which should be separately analyzed on the threshold question of whether the First Amendment right of access even attaches to the proceeding or document. Id. at 8, 106 S.Ct. 2735. The court first considers "whether the place and process have historically been open to the press and general public." Id. Then, the court considers "whether public access plays a significant positive role in the functioning of the particular process in question." Id; Oregonian Publ'g Co. v. United States Dist. Court, 920 F.2d 1462, 1465 (9th Cir.1990). If these two "considerations of experience and logic" favor disclosure, a qualified First Amendment right of access attaches to the documents in question.

Once the court determines that a First Amendment right of access attaches to the particular proceeding or documents at issue, the proceedings or documents cannot be closed to the public absent a specific finding "that closure is essential to preserve higher values and is narrowly tailored to serve that interest." Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) (Press-Enterprise I). The court must articulate that interest and make "findings specific enough that a reviewing court can determine whether the closure order was properly entered." Id. The Supreme Court "has made clear that criminal proceedings and documents may be closed to the public without violating the First Amendment only if three substantive requirements are satisfied: (1) closure serves a compelling interest; (2) there is a substantial probability that, in the absence of closure, this compelling interest would be harmed; and (3) there are no alternatives to closure that would adequately protect the compelling interest." Oregonian Publ'g, 920 F.2d at 1466; Press-Enterprise II, 478 U.S. at 13-14, 106 S.Ct. 2735. In the context of disclosure of Title III intercepts, Press-Enterprise II requires the court to "balance the public's right of access against the privacy and fair trial interests of defendants, witnesses and third parties." United States v. Gerena, 869 F.2d 82, 85 (2d Cir.1989). The court must also consider "the privacy interest of innocent third parties as well as those of defendants that may be harmed by disclosure of the Title III material and should weigh heavily in a court's balancing equation in determining what portions of motion papers in question should remain sealed or should be redacted." Id.

In light of the standards developed to analyze qualified First Amendment right of access issues, the court turns to the experience and logic considerations.¹

The Experience Consideration

In determining right of access issues, the historic context of the particular criminal proceeding at issue is significant not only "because the Constitution carries the gloss of history," but also because "a tradition of accessability implies the favorable judgment of experiences." Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 605, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982). Certain aspects of criminal proceedings, such as access to criminal trials, have traditionally been open to the public throughout this country's history and even before in England, Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 569, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980) ("at the time when our organic laws were adopted, criminal trials both here and in England had long been presumptively open" to the public), but other aspects of criminal proceedings have not been open to the public. See Douglas Oil Co. v. Petrol Stops Northwest, ...