Valley Broadcasting Co. v. U.S. Dist. Court for Dist. of Nevada

Citation798 F.2d 1289
Decision Date02 September 1986
Docket NumberNo. 86-7103,86-7103
Parties, 13 Media L. Rep. 1347 VALLEY BROADCASTING COMPANY, Petitioner, v. UNITED STATES DISTRICT COURT FOR the DISTRICT OF NEVADA, Respondent, United States of America, Anthony Spilotro, et al., Real Parties in Interest.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Janet Frasier Phillips, Las Vegas, Nev., for petitioner.

L.J. O'Neale, Dept. of Justice, Washington, D.C., for respondent.

Mandamus from the United States District Court for the District of Nevada.

Before GOODWIN, NORRIS and HALL, Circuit Judges.

CYNTHIA HOLCOMB HALL, Circuit Judge:

This case requires us to decide whether the public's common law right to copy and inspect public records and documents includes the right to copy audio and videotape exhibits as they are received in evidence during a criminal trial.

Valley Broadcasting Company (Valley Broadcasting) brought this petition for writ of mandamus after the district court denied its request to copy certain audio and video tapes as they were admitted into evidence in United States v. Spilotro, et. al., CR-LV-83-11-LDG (Spilotro), a prominent RICO conspiracy case now underway in Nevada. That case arises from a 1983 indictment alleging that Anthony Spilotro and numerous others engaged in various racketeering enterprises associated with the so-called "Hole-in-the-Wall Gang." 1 The indictment alleges that Spilotro and others planned and conducted a series of residential burglaries and distributed the stolen proceeds through a fencing network.

On January 31, 1985, Valley Broadcasting's television station, KVBC-TV, filed an application to permit its correspondents to attend all judicial proceedings in the case and to copy all evidence, including audio and video tapes, after admission into evidence. On June 17, 1985, the district court granted the application. On January 14, 1986, after three weeks of voir dire, the jury was empaneled, and the Spilotro trial commenced. On February 6, 1986, several exhibits consisting of black and white photographs were admitted into evidence and displayed in open court. The district court In denying Valley Broadcasting's request for access to the tapes, the district court relied upon the Fifth Circuit's opinion in Belo Broadcasting Corp. v. Clark, 654 F.2d 423, 434 (5th Cir.1981). The district court held that Valley Broadcasting's common law right of physical access to the tapes in evidence was outweighed by: (a) the administrative and mechanical difficulties attending inspection and copying of the tapes, including the possibility of erasure or loss of the originals; (b) the difficulty of selecting jurors in related but yet untried cases; and (c) the danger that jurors in the Spilotro trial itself might be exposed to press reports and that a mistrial might result.

denied KVBC-TV access to the exhibits and informed its counsel that the district court's prior order granting access to all exhibits had been temporarily restrained. On February 21, the district court lifted its restrictions on access to all exhibits except for certain audio and video tapes. It is access to these items of evidence that Valley Broadcasting now seeks in its petition for writ of mandamus. 2

In response to an order of this court to supplement the record, the government has submitted copies of the indictments in the cases the government contends bear some relation to the evidence sought to be copied by Valley Broadcasting. One of those cases, United States v. Spilotro, et al., CR-LV-83-116-LDG (the "witness" case), is based on an indictment alleging that Anthony Spilotro along with Wayne Matecki conspired to obstruct justice and to interfere with the civil rights of Sherwin Lister, a government informant and witness, by causing or conspiring to cause his death. The other criminal action, United States v. Spilotro, et al., CR-LV-81-92-HEC (the "jewelry" case), involves an indictment alleging that Spilotro along with several others operated a racketeering scheme for the distribution of jewelry stolen from Illinois and New York establishments. Among the defendants in that action is Joseph C. Blasko, a former detective with the Organized Crime Bureau of the Las Vegas Metropolitan Police Department.

The government has also provided us with the transcripts of the audio and video tapes which may be introduced in the Spilotro trial. These tapes generally record conversations occurring during the planning or commission of residential burglaries. The district court also has confirmed that copies of the original audio and video tapes are in existence and are in the possession of the Federal Bureau of Investigation (FBI).

MANDAMUS

Mandamus is an "extraordinary remedy" that should be invoked only in "exceptional circumstances," Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269, 273, 19 L.Ed.2d 305 (1967), and we have articulated several objective criteria designed to guide us in the exercise of our power to issue such a writ. In considering whether to grant a petition for writ of mandamus we must determine whether:

(1) The party seeking the writ has no other adequate means, such as a direct appeal, to attain the relief he or she desires. (2) The petitioner will be damaged or prejudiced in a way not correctable on appeal.... (3) The district court's order is clearly erroneous as a matter of law. (4) The district court's order is an oft-repeated error, or manifests a persistent disregard of the federal rules. (5) The district court's order raises new and important problems, or issues of law of first impression.

Bauman v. United States District Court, 557 F.2d 650, 654-55 (9th Cir.1977).

These factors are to be considered in the aggregate and often require a careful Valley Broadcasting cannot attain the requested relief on direct appeal because the tapes it seeks to copy will lose much of their newsworthiness during the pendency of the trial. Furthermore, because KVBC-TV seeks to obtain the tapes for contemporaneous broadcast, when presumably they will pack the greatest punch, delay will prejudice its application "in a way not correctable on appeal." Bauman, 557 F.2d at 654. Finally, this case raises a question of first impression in this circuit. Accordingly, we find that KVBC-TV's petition satisfies three of the five Bauman factors. In these circumstances, we believe that whether mandamus should issue turns on whether the district court's denial of Valley Broadcasting's application for immediate access to the tapes was "clearly erroneous as a matter of law." Id.

                weighing before an appellate court can determine whether a writ should issue. 3   Nonetheless, the factors are not intended to "supplant reasoned and independent analysis" but rather "serve only as a useful starting point, an analytic framework for determinations regarding the propriety of mandamus relief."   In re Cement Antitrust Litigation, 688 F.2d 1297, 1301 (9th Cir.1982), aff'd sub nom.  Arizona v. United States District Court, 459 U.S. 1191, 103 S.Ct. 1173, 75 L.Ed.2d 425 (1983)
                
PRECEDENT

The issue of when members of the public or the news media have the right to copy and inspect judicial records has never been fully addressed by the Supreme Court. See Nixon v. Warner Communications, Inc., 435 U.S. 589, 598, 98 S.Ct. 1306, 1312, 55 L.Ed.2d 570 (1978). The question, however, has been considered recently by several courts of appeals. See, e.g., United States v. Beckham, 789 F.2d 401 (6th Cir.1986); United States v. Guzzino (In re CBS, Inc.), 766 F.2d 302 (7th Cir.1985); United States v. Edwards (In re Video-Indiana, Inc.), 672 F.2d 1289 (7th Cir.1982); United States v. Criden (In re National Broadcasting Co.), 648 F.2d 814 (3d Cir.1981). At the outset, it is important for us to delineate which rights are implicated by this question and which are not.

The first and fourteenth amendments secure the public's constitutional right to attend criminal trials, 4 see Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980). See also Radio and T.V. News Association v. United States District Court, 781 F.2d 1443, 1446-47 (9th Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 2276, 90 L.Ed.2d 719 (1986), a right which is essential to publicizing the workings of criminal justice. United States v. Mouzin, 559 F.Supp. 463, 466 (C.D.Cal.1983). Because courtroom space is inherently limited, and because the public is dispersed, the media plays an indispensable representative role in gathering and disseminating to the public current information on trials. Richmond Newspapers, 448 U.S. at 573, 581-82 n. 18, 100 S.Ct. at 2829-30 n. 18; Beckham, 789 F.2d at 406. In this case, however, KVBC-TV was granted access to the proceedings themselves and was provided with transcripts of the exhibits admitted into evidence. Any first amendment rights to which existing case law entitled Valley Broadcasting were amply satisfied Valley Broadcasting enjoys a common-law right to copy and inspect the judicial records in the Spilotro trial which is independent of the Constitution. The common-law right of access has historically developed to accomplish many of the same purposes as are advanced by the first amendment. For example, courts have recognized that exercise of the right helps the public keep a watchful eye on public institutions, State ex rel. Colscott v. King, 154 Ind. 621, 621-27, 57 N.E. 535 (1900), and the activities of government, State ex rel. Youmans v. Owens, 28 Wis.2d 672, 677, 137 N.W.2d 470 (1965). Yet the common-law right is not of constitutional dimension, is not absolute, and is not entitled to the same level of protection afforded constitutional rights. Warner Communications, 435 U.S. at 597-98, 98 S.Ct. at 1311-12.

by the district court's provision for media access to the trial itself.

The common law right of access...

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