United States v. Mouzin, CR 82-518(B)-AWT.

• Decision Date: 16 March 1983
• Docket Number: No. CR 82-518(B)-AWT.,CR 82-518(B)-AWT.
• Citation: 559 F. Supp. 463
• Parties: UNITED STATES of America, Plaintiff, v. Barbara MOUZIN, et al., Defendants. National Broadcasting Company, Inc., a Delaware corporation, Applicant.
• Court: U.S. District Court — Central District of California

559 F. Supp. 463

UNITED STATES of America, Plaintiff, v. Barbara MOUZIN, et al., Defendants National Broadcasting Company, Inc., a Delaware corporation, Applicant.

No. CR 82-518(B)-AWT.

United States District Court, C.D. California.

March 16, 1983.

Stephen S. Trott, U.S. Atty., Alexander H. Williams, III, Chief Asst. U.S. Atty., Robert L. Brosio, Asst. U.S. Atty., Chief, Crim. Div., Robert J. Perry, Asst. U.S. Atty., Los Angeles, Cal., for the U.S.

Howard Weitzman, Jean Costanza, Weitzman & Re, Los Angeles, Cal., for Barbara Mouzin.

Edward M. Medvene, Patricia H. Benson, Mitchell, Silberberg & Knupp, Los Angeles, Cal., for Anthony Cantelli and Mr. C.

Raymond Takiff, Coral Gables, Fla., for Samuel Schuster.

Victor Palacios, Glendale, Cal., for Alphonso Carvajal.

Alvin S. Michaelson, Michaelson & Withey, Los Angeles, Cal., for Oscar Castano.

Donald L. Zachary, Tracy S. Rich, Robert G. Mendez, Burbank, Cal., for applicant National Broadcasting Co., Inc.

MEMORANDUM OPINION AND ORDER

TASHIMA, District Judge.

This is an application by National Broadcasting Company, Inc. ("NBC") to copy all video and audio tapes admitted into evidence during the trial of this criminal action.

The action involves a twelve-defendant, 28-count indictment. The indictment charges numerous substantive violations and three interlocking conspiracies to sell cocaine and to launder the cash proceeds of illegal cocaine sales through domestic and foreign financial institutions. Trial had just commenced against six of the defendants (including the corporate defendant) when this application was made. The trial of one defendant was severed because of the unavailability of his retained counsel. Trial of the severed defendant is to commence upon the completion of the current trial, which is estimated to last eight weeks.

The prosecution has disclosed that it will seek to introduce numerous video and audio tapes during the trial. The Court has reviewed the transcripts of substantially all of the audio tapes that the prosecution seeks to introduce. Most of the audio tapes were recorded during court-approved wiretaps of some of the defendants' telephone lines. A few are tape recordings of meetings attended by defendants and undercover government agents involved in the investigation that led to this indictment. The Court understands that the video tapes will depict some of the defendants at an office staffed by undercover agents, at which the government contends certain illegal currency transactions were conducted.

Written opposition to NBC's application has been filed by one of the defendants and several of the remaining defendants have orally opposed the application. The government does not oppose the application.

The issue raised by NBC's application appears to be one of first impression in this circuit, although it has been the subject of several decisions by courts in other circuits, as well as law review commentary.¹ Paying heed to a recent Supreme Court decision, all of the decisions on this issue recognize that an application to copy evidence is not supported by any Constitutional right. Rather, ruling on NBC's application requires only an assessment of the strength of the common law right of access to judicial records in the face of possible harms arising from copying of the tapes by NBC. I conclude, for the reasons set forth below, that in this instance the possible harm that could arise from dissemination of the taped evidence is too speculative and insubstantial to overcome the common law right of access to judicial records. Accordingly, NBC's application to copy the audio and video tapes admitted into evidence will be granted.

I. LEGAL PRINCIPLES APPLICABLE TO THIS APPLICATION

The starting point in the analysis of this application is the Supreme Court's decision in Nixon v. Warner Communications, Inc., 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978) (deciding application to copy tapes of conversations made in offices in the White House and the Executive Office Building that had been introduced at the trial of the Watergate conspirators). Warner Communications holds that an application to copy taped evidence finds support in neither the First Amendment guarantee of freedom of the press nor the Sixth Amendment guarantee of a public trial. Id. at 608, 98 S.Ct. at 1317. The Court stated, however, that applications to copy tapes must be evaluated in light of the common law right of access to inspect and copy judicial records and documents. Warner Communications does not define fully the contours of the common law right of access, because the Court there found that Congress had displaced the common law right of access as to presidential tapes by the Presidential Recordings Act. Id. at 603, 98 S.Ct. at 1315. Warner Communications makes clear, however, that deciding an application resting on the common law right of access involves "the task of weighing the interests advanced by the parties in light of the public interest and the duty of the courts." Id. at 602, 98 S.Ct. at 1314.

Courts of appeals in five circuits and several district courts have issued opinions that discussed how this balancing task should be approached. The outcome in all of these cases turned on each court's assessment of the importance of public access to judicial records in the face of the possible detrimental impact on criminal trials of disclosure. Because the Supreme Court's decision in Warner Communications fails to provide guidance on how this assessment should be made, the courts of appeals have announced widely varying formulations.

At one extreme, that most favoring access to judicial records, is the decision of the Second Circuit in In re Application of National Broadcasting Co. (United States v. Myers), 635 F.2d 945 (2d Cir.1980) ("Myers") (affirming district court's grant of an application to copy during trial). Myers held that only "the most extraordinary circumstances" would justify denial of an application to copy evidence admitted at a criminal trial. Under the Myers approach, the public's interest in criminal trials easily outweighs the potential prejudicial effects of publicity, even as to defendants who are yet to be tried on other indictments arising from the same undercover investigation.

At the other extreme is the decision of the Fifth Circuit in Belo Broadcasting Corp. v. Clark, 654 F.2d 423 (5th Cir.1981) (affirming denial of tape copying access by district court). Belo held that access should always be denied when a court is asked to balance the "non-constitutional right of physical access to courtroom exhibits and a defendant's due process right to a fair trial." Id. at 432. "It is better to err, if we must, on the side of generosity in the protection of a defendant's right to a fair trial before an impartial jury." Id. at 431.

The three other circuits that have addressed this issue have not found it capable of simple resolution by sweeping language. Instead, each of these courts has found that the common law right of access is of the same stature as the threats posed by disclosure. Accordingly, each of these courts has held that a decision on an application to copy can be reached only by balancing these two competing interests in light of the circumstances in the particular case in which copying is sought. Each of these courts adopted an approach that starts with a "strong presumption" that access should be allowed, which may be overcome upon a finding of "articulable facts" supporting denial because of the nature and gravity of the harms threatened by disclosure. See United States v. Edwards ex rel. Application of Video-Indiana, Inc., 672 F.2d 1289, 1294 (7th Cir.1982) (affirming district court's denial of access during trial); In re National Broadcasting Co., 653 F.2d 609, 613 (D.C.Cir.1981) ("In re NBC") (reversing district court's denial of access during trial); United States v. Criden ex rel. Application of National Broadcasting Co., 648 F.2d 814, 823 (3d Cir.1981) (reversing district court's denial of post-trial access to tapes).

Under these decisions, unsupported hypothesis or conjecture does not rise to the level of "articulable facts" required to support a denial of access. Edwards, 672 F.2d at 1294. See In re NBC, 653 F.2d at 618 (risk of potential prejudice at hypothetical second trial insufficient to support denial of access). Moreover, the potential harm must not be capable of resolution by a means less drastic than denial of access. Edwards, 672 F.2d at 1296 (cautionary instruction to jury appropriate to alleviate concern that jury would interpret granting of access as judicial endorsement of the evidence); In re NBC, 653 F.2d at 620 (excision of tapes would eliminate possible harms to third parties mentioned in tapes); Criden, 648 F.2d at 827-28 (voir dire could be used to eliminate jurors who had been biased by publicity at possible retrial).

In the absence of any controlling precedent from the Ninth Circuit, I choose to follow the approach adopted by the Third, Seventh, and D.C. Circuits. I believe that this approach most closely follows the command of Warner Communications. There, the Supreme Court initially affirmed the existence of a common law right of access, and held that resolution of controversies implicating this right must be resolved by weighing the interests advanced. This approach—whether or not it is labelled the "strong presumption" approach as other circuits have done—is also consistent with this Circuit's approach in determining whether a criminal proceeding should be closed to the public and the proper allocation of the burden of making the required showing. In United States v. Brooklier, 685 F.2d 1162, 1167 (9th Cir. 1982), the court held that one who seeks closure may discharge the burden of showing necessity to protect the fair trial guarantee by demonstrating a "substantial probability" that the protected right will be harmed. The value to be protected in that case, that "the...