In Re:Intervenor Newark Morning Ledger Co. ( 2001 )

Opinions of the United
2001 Decisions States Court of Appeals
for the Third Circuit
7-18-2001
In Re:Intervenor Newark Morning Ledger Co.
Precedential or Non-Precedential:
Docket 01-1512
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Filed July 18, 2001
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 01-1512
I M P O U N D E D
NEWARK MORNING LEDGER CO.,
Publisher of The Star-Ledger,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
D.C. Miscellaneous No. 99-mc-00281
(Honorable John C. Lifland)
Argued May 15, 2001
Before: SCIRICA, GARTH and STAPLETON, Circuit Judges
(Filed July 18, 2001)
DONALD A. ROBINSON, ESQUIRE
(ARGUED)
Robinson & Livelli
Two Penn Plaza East, 11th Floor
Newark, New Jersey 07105
Attorney for Appellant,
Newark Morning Ledger Co.,
Publisher of The Star-Ledger
DEMETRA LAMBROS, ESQUIRE
(ARGUED)
JAMES E. CASTELLO, ESQUIRE
United States Department of Justice
Criminal Division-Appellate Section
601 D Street, N.W., Suite 6206
Washington, D.C. 20530
Attorneys for Appellee,
United States of America
THEODORE V. WELLS, JR.,
ESQUIRE (ARGUED)
Paul Weiss Rifkind Wharton &
Garrison
1285 Avenue of the Americas
New York, New York 10019-6064
DAVID E. BARRY, ESQUIRE
Pierce Atwood
One Monument Square
Portland, Maine 04101
Attorneys for Appellee,
John Doe 1
ADAM S. HOFFINGER, ESQUIRE
ROBERT A. SALERNO, ESQUIRE
Piper Marbury Rudnick & Wolfe
1200 19th Street, N.W., Suite 700
Washington, D.C. 20036
Attorneys for Appellee,
John Doe 2
THOMAS J. CAFFERTY, ESQUIRE
ARLENE M. TURINCHAK, ESQUIRE
McGimpsey & Cafferty
285 Davidson Avenue, Suite 404
Somerset, New Jersey 08873
Attorneys for Amicus Curiae-
Appellants, The New Jersey Press
Association, The Associated Press,
Bloomberg, LP Philadelphia
Newspapers, Inc. The New York
Times
2
KATHERINE HATTON, ESQUIRE
Philadelphia Newspapers, Inc.
Legal Department
400 North Broad Street
Philadelphia, Pennsylvania 19102
Attorney for Amicus Curiae-
Appellant, Philadelphia
Newspapers, Inc.
OPINION OF THE COURT
SCIRICA, Circuit Judge.
The issue on appeal is whether the District Court erred
in temporarily sealing the initial filings and hearings
concerning a contempt motion filed under Fed. R. Crim. P.
6(e)(2) pending its determination whether secr et grand jury
material would be disclosed. Our opinion in United States
v. Smith, 123 F.3d 140 (3d Cir. 1997), provides the rule of
decision in this matter. We will affirm.
I.
On February 13, 2001, the Newark Star Ledger
discovered that a motion had been filed under seal in
District Court. The Star Ledger believed the motion sought
contempt proceedings against United States Justice
Department attorneys or agents for leaking secret grand
jury information to the media, in violation of Fed. R. Crim.
P. 6(e)(2).1 The Star Ledger filed a motion to intervene and
to unseal the motion. After granting the motion to
intervene, the District Court conducted a bifur cated hearing
to determine whether the motion should be unsealed and
whether subsequent filings and proceedings should be
sealed. The first hearing occurred in a closed session.
After the initial hearing, the court opened the pr oceedings
_________________________________________________________________
1. Fed. R. Crim. P. 6 (e)(2) provides, "[A]n attorney for the government
. . . shall not disclose matters occurring befor e the grand jury . . . .
A
knowing violation of Rule 6 may be punished as a contempt of court."
3
stating it had made a "preliminary deter mination to deny
access to all the filings and proceedings" holding that "at
least for now [it] should not and must not open [the]
proceedings to the public because of its grand jury context."
The Star Ledger contended the motion for contempt
proceedings did not implicate grand jury infor mation. For
this reason, it argued the motion and pr oceedings were
entitled to a presumption of openness under Fed. R. Crim.
P. 6 (e)(5).2 But the District Court held the filings "related to
grand jury proceedings" and under Fed. R. Crim. P. 6(e)(6)3
and United States v. Smith, 123 F.3d 140 (3d Cir. 1997),
they must remain sealed pending a deter mination whether
secret grand jury information was implicated. After making
this determination, the District Court stated it would open
all non-secret filings and proceedings. 4 The Star Ledger
_________________________________________________________________
2. Fed. R. Crim. P. 6(e)(5) provides,"Closed Hearing. Subject to any right
to an open hearing in contempt proceedings, the court shall order a
hearing on matters affecting a grand jury pr oceeding to be closed to the
extent necessary to prevent disclosure of matters occurring before a
grand jury."
3. Fed. R. Crim. P. 6(e)(6) provides,"Sealed Records. Records, orders,
and subpoenas relating to grand jury pr oceedings shall be kept under
seal to the extent and for such time as is necessary to prevent disclosure
of matters occurring before a grand jury."
4. In open session, the court stated,
[A]s everyone knows, we have in these papers allegations that well
recognized principles of grand jury secr ecy have been violated,
and
there are some specifics in the papers .. . . [I]n my judgment, it
would be inappropriate to disclose them at this time, and
inappropriate in the sense that allegations, if disclosed, would
necessarily disclose at least one party's view as to what went on
before a grand jury.
* * *
I agree that absent the grand jury aspect of this case, the
situation
of a citizen who happens to be a United States Senator complaining
about improper activities by the executive branch would be a matter
of intense public interest. That goes without saying.
But the motion before me is in the context of grand jury
proceedings
and that puts it in an entirely differ ent light, and requires me
to
evaluate the presumption of public access in the context of the
countervailing presumption of grand jury secr ecy.
I am satisfied that these allegations and these pr oceedings must
remain under seal.
4
appealed.5
II.
The District Court had jurisdiction under 18 U.S.C.
S 401. We have jurisdiction over afinal order denying
access to court records and proceedings under 28 U.S.C.
S 1291. United States v. Antar, 38 F .3d 1348, 1355-56 (3d
Cir. 1994) ("[O]rders either granting or denying access to
portions of a trial record are appealable as final orders
pursuant to S 1291."); United States v. Simone, 14 F.3d 833,
836 (3d Cir. 1994) (court order denying public access to
post-trial proceedings was final order and appealable under
S 1291). We exercise plenary r eview over the District Court's
decision to deny access to and seal trial recor ds. Antar, 38
F.3d at 1357. Although we generally r eview factual findings
for clear error, when the First Amendment is implicated, we
exercise independent appellate review. On a First
Amendment right of access claim, our scope of r eview of
factual findings "is substantially broader than that for
abuse of discretion." Smith, 123 F .3d at 146.
III.
The Supreme Court has recognized a First Amendment
right of access to most criminal proceedings. See, e.g.,
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 578
(1980); Nixon v. Warner Communications, Inc., 435 U.S.
589, 597 (1978) ("It is clear that the courts of this country
recognize a general right to inspect and copy public records
and documents, including judicial recor ds and
documents."); Antar, 38 F.3d at 1359-60. This right of
access promotes important societal inter ests including
confidence in the judicial system. See, e.g. , Press-Enterprise
Co. v. Super. Ct., 478 U.S. 1, 11-12 (1986); Leucadia, Inc. v.
Applied Extrusion Techs., Inc., 998 F .2d 157, 161 (3d Cir.
1993). We have extended this right of access to many pre-
trial criminal proceedings including pr e-trial suppression,
due process, and entrapment hearings.6 United States v.
_________________________________________________________________
5. The New Jersey Press Association filed an amicus curiae brief arguing
the District Court erred in sealing the pr oceedings.
6. In Richmond Newspapers, Inc., the Supr eme Court held the
presumption of openness in criminal proceedings extends beyond the
5
Criden, 675 F.2d 550, 554 (3d Cir . 1982). But this right of
access is not unlimited. Under certain circumstances the
right of public access may be outweighed by countervailing
principles.7 United States v. Smith, 787 F.2d 111, 114 (3d
Cir. 1986). Among the few limitations to the First
Amendment right of access in criminal hearings, none is
more important than protecting grand jury secrecy. Douglas
Oil Co. of Cal. v. Petrol Stops N.W. , 441 U.S. 211, 218
_________________________________________________________________
trial to many other stages of a criminal case including preliminary
hearings and post trial proceedings. 448 U.S. at 573. The Supreme
Court has developed a two part test to deter mine whether the First
Amendment right of access attaches to a particular stage of a criminal
proceeding. See Press-Enterprise Co. , 478 U.S. at 8-9. This test asks
whether (1) experience and (2) logic favor public access. Id. Under the
experience prong, courts consider whether "the place and process have
historically been open to the press and the general public." Id. at 8.
Under the logic prong, courts consider whether"public access plays a
significant positive role in the particular process in question." Id. In
making this logic determination courts look to six factors,
[Whether access] (1) Promot[es] . .. informed discussion of
government affairs by providing the public with [a] more complete
understanding of the judicial system; (2) pr omot[es] . . . the
public
perception of fairness which can be achieved only by permitting
full
public view of the proceedings; (3) provid[es] a significant
therapeutic value as an outlet for community concer n, hostility,
and
emotion; (4) serv[es] as a check on corrupt practices by exposing
the
judicial process to public scrutiny; (5) enhanc[es] . . . the
performances of all involved; and (6) discourag[es] . . . perjury.
United States v. Smith, 787 F.2d 111, 114 (3d Cir. 1986) (summarizing
United States v. Criden, 675 F.2d 550, 556 (3d Cir. 1982)).
7. Even if experience and logic favor a pr esumption of access, a court
may still seal a proceeding if closure is justified by overriding
principles.
Press-Enterprise Co., 478 U.S. at 9 (wher e the constitutional right of
access exists, "proceedings cannot be closed unless . . . closure is
essential to preserve higher values and is narr owly tailored to serve
that
interest"). The court must make "particularized findings on the record"
when it closes proceedings despite finding a presumption of access. Id.These findings must " `establish[ ] the existence of a compelling
governmental interest, and . . . demonstrat[e] that absent limited
restrictions upon the right to access, that other interest[s] would be
substantially impaired.' " Smith,123 F.3d at 147 (quoting Antar, 38 F.3d
at 1359).
6
(1979). The Supreme Court has held that grand jury
proceedings must remain secret noting,
[S]everal distinct interests [ar e] served by safeguarding
the confidentiality of grand jury proceedings. First, if
preindictment proceedings were made public, many
prospective witnesses would be hesitant to come
forward voluntarily, knowing that those against whom
they testify would be aware of that testimony.
Moreover, witnesses who appear befor e the grand jury
would be less likely to testify fully and frankly, as they
would be open to retribution as well as inducements.
There also would be the risk that those about to be
indicted would flee, or would try to influence individual
jurors to vote against indictment. Finally, by preserving
the secrecy of the proceedings, we assur e that persons
who are accused but exonerated by the grand jury will
not be held up to public ridicule.
Douglas Oil Co., 441 U.S. at 218-19 (inter nal citations
omitted).
In United States v. Smith, 123 F.3d 140 (3d Cir. 1997), we
held the broad secrecy historically af forded to grand jury
proceedings should, in certain circumstances, extend to
non-grand jury proceedings when secret grand jury
material may be disclosed. We also held ther e is no
presumptive First Amendment or common law right of
access to court documents that involve materials pr esented
before a grand jury, including initial motions,filings and
proceedings alleging contempt under Fed. R. Crim. P. 6(e).
Smith, 123 F.3d at 150 ("[I]f the district court seals a
proceeding or brief because it would disclose grand jury
matters, there is no First Amendment right of access to it
even if it also concerns possible impr oper actions by
government officials.").
A.
In Smith, the Newark Star Ledger sought access to
records and proceedings in the sentencing phase of a
criminal proceeding. The underlying criminal case in Smith
involved participants in a state lottery kickback scheme
who were convicted on various felony char ges. Before
7
sentencing, the government submitted its sentencing
recommendations to the court. The memorandum also
referenced other uncharged individuals allegedly involved in
the kickback scheme. After submitting the memorandum to
the court, the government made the memorandum public
by placing it on its website and providing copies to the
media.
The uncharged individuals maintained the gover nment's
disclosure of the memorandum which included the identity
of grand jury witnesses violated Fed. R. Crim. P . 6(e). The
District Court ordered the government to remove the
sentence memorandum from its website pending a
determination whether it actually contained grand jury
material. The court also ordered the parties to file under
seal any further motions and documents concer ning the
potential Fed. R. Crim. P. 6(e) violation. The court stated
that it would determine at a later date "whether there is
sufficient implication of Rule 6(e) . . . to warrant closure" of
future proceedings. Smith, 123 F .3d at 145. Subsequently,
the government and the uncharged individuals filed briefs
under seal.
The Newark Star Ledger moved to intervene to obtain the
parties' motions and filings and to have access to further
proceedings. Denying the newspaper's request for access,
the court reasoned "the very reason[the briefs are] sealed
is there may be material in them which af fects Rule 6(e)."
Id. After review, the court said it would disclose all non-
grand jury materials. The Star Ledger appealed contending
it had a First Amendment and common law right of access
to all this information.
Recognizing the First Amendment right of access to pre-
trial criminal proceedings, we held ther e was no right of
access when grand jury materials are involved, stating that
Douglas Oil [ ] implicitly makes clear that grand jury
proceedings are not subject to a First Amendment right
of access under the test of `experience and logic.'
Historically, such proceedings have been closed to the
public. Moreover, public access to grand jury
proceedings would hinder, rather than further, the
efficient functioning of the proceedings.
8
Id. at 148. Observing that the secrecy of grand jury
proceedings also extends to collateral pr oceedings
containing grand jury material, we stated, "Rather than
according secrecy only to grand jury pr oceedings
themselves, the rules provide a presumption of secrecy to
all proceedings that `affect' grand jury proceedings.
Concomitantly, not only are grand jury materials
themselves to be kept secret, but so ar e all materials that
`relate to' grand jury proceedings." Id. at 149; see also In re
Grand Jury Subpoena (Doe No. 4 v. Doe No. 1), 103 F.3d
234, 237 (2d Cir. 1996) ("The plain language of the Rule
shows that Congress intended for its confidentiality
provisions to cover matters beyond those actually occurring
before the grand jury."). Fed. R. Crim. P . 6(e)(6) provides
that "[r]ecords, orders, and subpoenas relating to grand jury
proceedings shall be kept under seal to the extent and for
such time as is necessary to prevent disclosur e of matters
occurring before a grand jury." (emphasis added). Similarly,
Fed. R. Crim. P. 6(e)(5) provides, "Subject to any right to an
open hearing in contempt proceedings, the court shall order
a hearing on matters affecting a grand jury pr oceeding to
be closed to the extent necessary to prevent disclosure of
matters occurring before a grand jury."
Applying these rules, we stated the critical question in
determining whether to unseal the proceedings and
materials relating to the uncharged individuals' motion was
"whether [they] w[ould] disclose grand jury matters so that
they `affect' or `relate to' grand jury proceedings within the
meaning of Rule 6(e)(5) and 6(e)(6)." Smith , 123 F.3d at 150
(citing 1 Charles Alan Wright, Federal Practice and
Procedure S 106, at 250 (1982) ("The rule of secrecy applies
. . . to anything that might tend to reveal what happened in
the grand jury room.")); see also Fed. R. Crim. P. 6 advisory
committee's note ("[Rule 6(e)(5)] make[s] it clear that certain
hearings which would reveal matters which have previously
occurred before a grand jury or ar e likely to occur before a
grand jury with respect to a pending or ongoing
investigation must be conducted in camera in whole or in
part in order to prevent public disclosur e of such secret
information."). We concluded the materials at issue (i.e., the
sentencing memorandum and the filings surr ounding it)
were sufficiently related to grand jury proceedings so that
9
disclosure could potentially interrupt and af fect the grand
jury proceedings. Smith, 123 F.3d at 150.
Although the pending motions in Smith wer e post-trial
motions, the heart of the alleged misconduct was an
allegation that the government disclosed secr et grand jury
information. Id. at 149. We stated,
[T]he ultimate issue to be decided by the district court
is whether attorneys for the government committed any
wrongdoing [but] . . ., this question cannot be resolved
without the district court's determining whether that
sentencing memorandum includes Rule 6(e) material.
Thus the focus of the proceedings befor e the district
court is on the question whether the disputed material
contained in the sentencing memorandum is in fact
grand jury material. In this proceeding, grand jury
matters may potentially be disclosed.
Id. at 150.
We stated, "A court should close a hearing to decide
whether disclosure is warranted if that hearing would
necessarily disclose grand jury matters." Id. (emphasis in
original). Therefore, the District Court in Smith did not err
in initially sealing the motions and proceedings because,
Faced with a bona fide claim that 6(e) material was
disclosed in the sentencing memorandum, the [district]
court prevented further disclosures of that material,
thereby preserving the "status quo," while the parties
briefed the question and the court brought them in for
a hearing . . . . If the district court made [the 6(e)]
determination in a public proceeding, it would further
disseminate the potential secrets in doing so.
Id. at 152. There was another r eason for sealing the
proceedings. The government intended to present actual
grand jury material to prove that it did not unlawfully
disclose grand jury secrets in the sentence memorandum in
violation of Fed. R. Crim. P. 6(e). Because the government
averred it was going to present actual grand jury material
in the proceedings, an ex parte in camera examination was
appropriate to prevent disclosure. Id. at 151 (citing In re
Grand Jury, 103 F.3d 1140 (3d Cir . 1997) ("Ex parte in
10
camera hearings have been held proper in or der to preserve
the ongoing interest in grand jury secr ecy.")).
Addressing the Star Ledger's argument that the District
Court should have redacted the briefs and filings and
provided public access to all non-grand jury information,
we found no error in the determination to seal all the
proceedings because,
[T]he district court simply cannot deter mine what
material is secret and what can be disclosed to the
public without determining whether the sentencing
memorandum contains Rule 6(e) material. Yet that
decision, in turn, cannot be made without the benefit
of the briefs and in particular, without the benefit of
oral argument.
* * *
Under these circumstances requiring access to some
aspects of the hearing will be cumbersome, impractical,
and inefficient.
Id. at 153.
In Smith, we concluded the District Court pr operly sealed
all the materials until such time as it decided what, if any,
grand jury secrets were implicated. Per mitting public
access to certain portions of the filings and pr oceedings
while excluding them from other portions of the proceeding
would create a "revolving door" hearing. Id. "Courts cannot
conduct their business that way, and we will not tie the
hands of the district court in this fashion." Id.
B.
We believe Smith controls her e. The District Court had to
first determine whether the information alleged to have
been leaked implicated secret grand jury infor mation before
determining whether to initiate contempt pr oceedings. As
we held in Smith, "[A] court should close a hearing to decide
whether disclosure is warranted if that hearing would
necessarily disclose grand jury matters." 123 F .3d at 150.
11
Premature disclosure might divulge secret grand jury
information.8
Furthermore, the government r epresented that in future
hearings concerning the motion it intended to present
undisclosed grand jury material in order to pr ove that no
Fed. R. Crim. P. 6(e) violation occurr ed. In these
circumstances, the court properly sealed the proceedings
pending its initial determination of whether secret grand
jury material was implicated. Id. at 152; see accord In re
Motions of Dow Jones & Co. Inc., 142 F.3d 496, 501 (D.C.
Cir.) ("As a matter of judicial administration, initially closing
all ancillary proceedings makes good sense. If a hearing is
about something `affecting' a grand jury investigation, there
will nearly always be a danger of revealing grand jury
matters."), cert. denied, 525 U.S. 820 (1998).
But the Star Ledger contends the District Court could
have simply redacted grand jury information and permitted
access to the rest of the materials.9 See In re Dow Jones,
_________________________________________________________________
8. As we stated in Smith, "[Supr eme Court precedent] implicitly makes
clear that grand jury proceedings are not subject to a First Amendment
right of access under the test of `experience and logic.' " 123 F.3d at
150;
see also S. Beale, et al., 1 Grand Jury Law & Practice S 5:8.1 (2d ed.
2000) ("Unlike other criminal proceedings to which a First Amendment
right of access has been found, there is no tradition of openness in
grand jury proceedings. The tradition of secr ecy extends to proceedings
ancillary to a grand jury investigation, and ther eby precludes any First
Amendment right of access to those proceedings.") (footnotes omitted).
Regardless of the intense public interest in this matter, when grand jury
material is implicated there is no presumptive First Amendment right of
access to the material. Smith, 123 F .3d at 150 ("[I]f the district court
seals a proceeding or brief because it would disclose grand jury matters,
there is no First Amendment right of access to it even if it also concerns
possible improper actions by government officials.").
9. On appeal the Star Ledger and amicus contend that even if we do not
find a presumption of access under "experience and logic," the District
Court's closure of all the proceedings was not narrowly tailored. See
Press-Enterprise, Co., 479 U.S. at 9 (once a presumptive right of access
is found, this may be overcome "only by an overriding interest based on
findings that closure is essential to pr eserve higher values and is
narrowly tailored to serve that interest."). Nor did the District Court
here
issue particularized findings identifying a compelling governmental
12
142 F.3d at 502 ("In all events, if the[court] can allow some
public access without risking disclosure of grand jury
matters -- either because of the subject of the pr oceedings
removes the danger or because the proceedings may be
structured to prevent the risk without disruption or delay,
Rule 6(e)(5) contemplates that this shall be done.") (internal
citation omitted). It contends that the court could have
revealed the names of the parties alleged to have leaked the
information, without revealing matters currently before the
grand jury. We disagree. The District Court properly
recognized that it was required to determine whether secret
grand jury information was leaked, and whether the
information in the complaining party's motion implicated
secret grand jury material. As we held in Smith, the better
practice is to initially seal the entire pr oceedings and
inform[ ] the parties that [the court] will disclose all
nonsecret aspects of . . . the briefs, and the hearing as
soon as it determines which aspects of those papers
and proceedings are secret . . . .[T]hat access is
enough to satisfy any right of access that the
newspapers may have to the nonsecret aspects of the
proceedings.
123 F.3d at 153-54.
_________________________________________________________________
interest which would be impaired if the pr oceedings were not sealed.
Smith, 123 F.3d at 147 (court must "establish the existence of a
compelling governmental interest and . . . demonstrat[e] that absent
limited restrictions upon the right to access that other interests would
be
substantially impaired").
But we see no error. As we held in Smith, once the court finds that
neither experience nor logic require a pr esumptive First Amendment
right of access, there is no need to addr ess whether the court's actions
were narrowly tailored. 123 F.3d at 151 (once court determines there is
no presumptive First Amendment right of access, the "inquiry ends
[t]here, and [there is no need] to reach the question whether the district
court made particularized findings that the need for closure outweighed
the interest in public access").
13
C.
1.
On appeal, the Star Ledger attempts to distinguish Smith
on the facts. It contends the complaining parties in Smith
(i.e., the uncharged individuals mentioned in the sentence
memorandum) actually appeared before the grand jury, but
here, it claims the complaining party was neither a target
of an investigation nor a witness before the grand jury. For
this reason, it argues, permitting access to the motions and
filings would have revealed only what a non-witness,
without knowledge of grand jury testimony, believed was
secret grand jury information. Because the complaining
party lacked "actual knowledge" of what occurr ed before the
grand jury, the Star Ledger contends the filings and
proceedings would not have revealed any grand jury
secrets. Disclosure, therefor e, would not have violated Fed.
R. Crim. P. 6(e) because the motion was based merely on
"rumor, innuendo, speculation, and infor mation already in
the public domain."10 Br . of amicus curiae at 4.
But the complaining party's "knowledge" is immaterial
during the initial stages of a Rule 6(e) proceeding. Because
a motion alleging government misconduct may contain
potential grand jury secrets, Fed. R. Crim. P . 6(e) requires
_________________________________________________________________
10. Amicus argue the complaining party's allegation was based on
information already reported in the press and therefore was not secret
information. See In re Dow Jones, 142 F.3d at 505 ("It is true that`Rule
6(e) does not create a type of secrecy which is waived once public
disclosure occurs' . . . . But it is also true that `when information is
sufficiently widely known . . . it has lost its character as Rule 6(e)
material.' ") (quoting In re North, 16 F.3d 1234, 1245 (D.C. Cir. 1994)).
But even if the motion is based on information already reported in the
media, this information may still be secr et grand jury material. As we
held in Smith,
[I]t is clear to us that a court is simply not powerless, in the
face of
an unlawful disclosure of grand jury secr ets, to prevent all
further
disclosures by the government of those same jury secrets. In other
words, even if grand jury secrets ar e publicly disclosed, they may
still be entitled to at least some protection from disclosure.
123 F.3d at 154.
14
the proceedings be initially sealed until the court can
determine what, if any, secret grand jury information is
implicated. Smith, 123 F.3d at 152.
2.
The Star Ledger also contends that under Fed. R. Crim.
P. 6(e) grand jury contempt proceedings are presumptively
open to the public and should be closed only to the extent
necessary to prevent improper disclosure.11 See In Re Grand
Jury Investigation (DiLoreto), 903 F .2d 180, 182 (3d Cir.
1990). But the Star Ledger's reliance on DiLoreto is
misplaced. DiLoreto did not involve grand jury secrets or
even grand jury testimony. In DiLoreto we held the district
court should disclose the termination date of a grand jury
investigation so that an individual held in contempt for
refusal to testify would be put on notice when his contempt
status would end.12 Id. at 183-84 (discussing survey "which
reveals that in the vast majority of United States District
Courts, the commencement and termination dates of the
grand jury are matters of public recor d"). The public
disclosure in DiLoreto, ther efore, did not implicate secret
grand jury testimony.
3.
The Star Ledger's contention that only "cor e" grand jury
material is subject to disclosure is not supported by case
law. Smith, 123 F.3d at 149 (" `The plain language of . . .
Rule [6(e)] shows that Congress intended for its
_________________________________________________________________
11. In connection with this argument the Star ledger notes that in
contrast to Smith where there was no independent right of public access
to the leaked document, (i.e., the sentencing memorandum) here there is
a presumptive right of access to filings in a contempt motion. It argues
that in Smith the sentence memorandum was pr esumptively confidential
under Fed. R. Crim. P. 32, while in the pr esent case there is a
historically rooted practice of openness in contempt proceedings.
But this distinction is not dispositive. The pr esumption of open access
is lost once grand jury materials are pr esent. Smith, 123 F.3d at 148-49.
12. DiLoreto was being held in custody until the termination of the grand
jury investigation.
15
confidentiality provisions to cover matters beyond those
actually occurring before the grand jury.' ") (quoting In Re
Grand Jury Subpoena, 103 F.3d at 237). The secrecy
afforded to grand jury materials under Fed. R. Crim. P. 6(e)
extends beyond the actual grand jury proceeding to
collateral matters, including contempt proceedings, which
relate to grand jury proceedings and may potentially reveal
grand jury information. Id. ("[N]ot only are grand jury
materials themselves to be kept secret, but so are all
materials that `relate to' grand jury pr oceedings."). For this
reason, we believe the District Court pr operly delayed
public access to the materials and proceedings until a
proper determination could be made whether the motion
implicated secret grand jury information. Id. at 153.
4.
The Star Ledger also contends Fed. R. Crim. P . 6(e)(5)
provides that contempt proceedings ar e presumptively
entitled to public access, even when grand jury material is
present. It cites a series of cases wher e courts have held
that contempt proceedings should be open to the public.
See In re Oliver, 333 U.S. 257 (1948); In re Iowa Freedom of
Info. Council, 724 F.2d 658, 661 (8th Cir . 1983) ("[T]he
protection of the First Amendment extends to pr oceedings
for contempt, a hybrid containing both civil and criminal
characteristics.");13 In re Rosahn, 671 F.2d 690, 697 (2d Cir.
1982).
But these cases only address the adjudicative process. In
re Oliver, 333 U.S. at 273 (holding one man grand jury that
held witness in contempt and sentenced him to prison was
contempt proceeding to which there was a right to public
access);14 In re Rosahn, 671 F.2d at 697 ("[A] contempttrial
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13. The Star Ledger's reliance on In r e Iowa Freedom of Information
Council, 724 F.2d at 661, is misplaced because it does not address the
secrecy afforded to grand jury materials but rather whether trade secrets
are entitled to secrecy. As we noted in Smith, when grand jury material
is at issue, the First Amendment right of access demands a different
analysis. Smith, 123 F.3d at 150.
14. In In re Oliver, the Court stated,
16
may properly be closed to the public when substantive
grand jury matters are being considered.") (emphasis
added)). Here, the initial motions and hearings did not
involve adjudicative procedures in a contempt proceeding.
The District Court was at the preliminary stage of sorting
out whether secret grand jury material was implicated.
As the Court of Appeals for the D.C. Circuit r ecently
recognized there are several stages to a criminal contempt
proceeding, explaining,
First, the district court must determine whether the
plaintiff has established a prima facie case [i.e., that a
Fed. R. Crim. P. 6(e)(2) violation has occurr ed] . . . .
Second, if the court determines that a prima facie case
has been established, the burden shifts to the
government to "attempt to explain its actions" in a
show cause hearing. If the government fails to rebut
the prima facie case, a violation of Rule 6(e)(2) is
deemed to have occurred . . . . The court then
determines what remedy will be sufficient.
In re Sealed Case No. 98-3077, 151 F .3d 1059, 1067-68
(D.C. Cir. 1998) (internal citations omitted). Here, the
District Court had not even reached the first stage, whether
_________________________________________________________________
In the case before us, the petitioner was called as a witness to
testify in secret before a one-man grand jury conducting a grand
jury investigation. In the midst of petitioner's testimony the
proceedings abruptly changed. The investigation became a `trial,'
the
grand jury became a judge, and the witness became an accused
charged with contempt of court -- all in secret. Following a
charge,
conviction and sentence, the petitioner was lead away to prison--
still without any break in the secrecy.
* * *
In view of this nation's historic distrust of secr et proceedings,
their
inherent dangers to freedom, and the universal requirement of our
federal and state governments that criminal trials be public, the
Fourteenth Amendment's guarantee that no one shall be deprived of
his liberty without due process of law means at least that an
accused cannot be thus sentenced to prison.
333 U.S. at 272-73.
17
the complaining party had established a prima facie case of
a Fed. R. Crim. P. 6(e)(2) violation. Rather the court was
making an initial determination of whether the information
in the motion implicated grand jury materials.15 As we held
in Smith, this initial stage may be closed so long as, upon
motion, the court re-opens the adjudication pr oceedings.16
123 F.3d at 149 n.13 ("All that must be accessible to
public, upon the contemnor's request, is the`final stage' of
contempt proceedings."); see also Levine v. United States,
362 U.S. 610, 618 (1960) (during "final stages" of a
contempt proceeding the courtroom should be "opened so
that the act of contempt, and the consequent adjudication
and sentence might occur in public."), r eh'g denied, 363
U.S. 858 (1960).17
5.
In sum, the District Court properly sealed the initial
filings and motions so that it could deter mine whether
secret grand jury information was implicated. The court
held that after it determined what, if any, information was
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15. The Star Ledger argues that we should adopt a rule that both pre-
contempt and actual contempt proceedings ar e presumptively open to
the public because all stages of a contempt pr oceeding involve
considerations of due process to which the public has a right to be
informed. It argues that to the extent grand jury material is present in
the initial stages of a contempt proceeding the court should redact any
grand jury material from the otherwise open pr oceedings.
We decline to adopt such a rule. As we held in Smith, when
information relating to a grand jury investigation is present in the
initial
stages of a contempt proceeding, there is no presumption of public
access and the court must prevent the disclosur e of this secret grand
jury material by sealing the proceedings. 123 F .3d at 151 ("[T]he briefs
and hearing will necessarily reveal grand jury material . . . . Not only
was the district court justified in sealing them, it was required to do so
absent a showing of an overriding interest.").
16. Of course, during this final contempt adjudication, the court may
redact any materials that reveal secr et grand jury information.
17. We need not address the Star Ledger's argument that the Smith court
erred in stating that access to final contempt proceedings is limited to
the alleged contemnor and does not permit access to the general public.
18
secret grand jury material, it would open the proceedings
and disclose all non-grand jury materials. W e see no error.18
IV.
For the foregoing reasons, we will affir m the judgment of
the District Court.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
_________________________________________________________________
18. On June 20, 2001 the District Court issued afinal order denying the
complaining party's motion for contempt proceedings. But the District
Court did not unseal all the records pertaining to the motion nor did it
lift the seal on future proceedings. Under Smith, we believe the District
Court should complete its review of the pr oceedings and after
determining what, if any, materials contain secret grand jury
information, unseal all non-secret material.
19