In Re: Hearst-Argyle ( 2001 )

  •                      _______________________
                          FOR THE FIFTH CIRCUIT
                               No. 00-30953
                            cons/w 00-31042 and
    JAMES HARVEY BROWN, also known as Jim Brown; ALFRED FOSTER
    SANDERS, III, also known as Foxy Sanders; EDWIN W. EDWARDS,
    also known as The Governor; ROBERT A. BOURGEOIS, also known
    as Bob Bourgeois, DAVID JUDD DISIERE, RONALD R. WEEMS, also
    known as Ron Weems,
    JAMES HARVEY BROWN, also known as Jim Brown; EDWIN
    WASHINGTON EDWARDS, also known as The Governor; RONALD R.
    WEEMS, also known as Ron Weems,
    the Advocate, Saturday and Sunday Advocate, the “News Media”,
              Appeals from the United States District Court
                   for the Middle District of Louisiana
    Saturday and Sunday Advocate); HEARST-ARGYLE TELEVISION
    CAPITAL CITY PRESS (The Advocate, Saturday and
                         Petitions for Writ of Mandamus
                      to the United States District Court
                     for the Middle District of Louisiana
                                   May 1, 2001
    Before JOLLY, JONES and SMITH, Circuit Judges.
    EDITH H. JONES, Circuit Judge:
                By appeals or, in the alternative, petitions for a writ
    of mandamus, various “News Media”,1 challenge measures used by the
    court to protect juror anonymity in a much-publicized criminal
    trial.    Those measures included certain orders implementing an
    anonymous jury order, and the district court’s refusal to grant the
    News Media’s motion for post-verdict access to juror information.
    Finding that a portion of the district court’s orders supplementing
    its anonymous jury order was an unconstitutional prior restraint,
    we reverse in part.     We reject, however, the News Media’s requests
                The “News Media” include Times-Picayune Publishing Corporation, the
    Associated Press, Capital City Press, Inc., Gannett River States Publishing,
    Inc., Hearst-Argyle Television, Inc. (WDSU-TV), WGNO Inc., WWL-TV Inc., Emmis
    Television Broadcasting L.P. (WVUE-TV) and the Louisiana Press Association.
    that       the   district    court    be   ordered        to   release    the   jurors’
    identifying information and juror questionnaires.
                                         I. BACKGROUND
                     Former   Louisiana    Governor       Edwin    Edwards    and   several
    others, including state Insurance Commissioner Jim Brown, were
    indicted         for   various   federal         crimes    allegedly     committed   in
    connection with a “‘sham settlement’ that derailed a $27 million
    lawsuit threatened by the state against David Disiere, president of
    Cascade Insurance Co., a failed automobile insurance carrier.”
    United States v. Brown, 
    218 F.3d 415
    , 418 (5th Cir. 2000).                           The
    indictment included numerous counts of conspiracy, mail and wire
    fraud,      insurance      fraud,    making      false     statements,    and   witness
    tampering.         The trial at issue in this appeal was the second of
    three federal prosecutions involving former Governor Edwards.                        In
    the    first      trial,    Edwards    and       several    other   defendants     were
    convicted in June, 2000, of charges based on bribery to obtain a
    riverboat gambling license.                The third trial, also involving
    bribery allegations, was held in March, 2001.                    The jury convicted
    Cecil Brown on seven out of nine counts.                   Edwards was an unindicted
    co-conspirator in that case and appeared as a witness for Brown.2
                     Trial on this second indictment began on September 18,
    2000.       On October 11, Edwards and Shreveport lawyer Ronald Weems
                A fourth related trial for federal tax evasion by former Edwards aide
    Andrew Martin will commence in July, 2001.
    were acquitted of all charges. Brown was acquitted on most charges
    but convicted on seven counts of making false statements to an FBI
    agent.    The district court threw out two of these counts.
         A.    Pretrial Proceedings
               On March 31, 2000, the United States filed a motion for
    the impanelment of an anonymous jury.             The defendants opposed the
    motion.    On July 13, the district court continued the trial until
    September 18, 2000, and it granted the Government’s motion for an
    anonymous jury.
               The News Media, as intervenors, requested on July 26 that
    the district court reconsider its approval of an anonymous jury.
    In the alternative, the News Media asked for access to the names,
    addresses, and places of employment of the jurors upon entry of the
    verdict, to the extent that the information might be withheld
    during trial.
               The    district       court   issued   reasons    for    granting    the
    anonymous jury motion on August 9. Stating that anonymity has long
    been an important element of the jury system, the court reasoned
    that its    order      “merely    increased   the   degree    of    anonymity    by
    withholding      the    jurors’     names,    addresses,      and     places    of
    employment.”      The court found that three of five non-exclusive
    factors3 that the Fifth Circuit has stated may justify impaneling
    an anonymous jury were present in this case.               First, there have
    been charges that the defendants have attempted to interfere with
    the   judicial    process    or   witnesses   through    witness     tampering,
    attempting to bribe a judge, attempting to illegally terminate a
    federal investigation and influencing a court-appointed special
    master.     Two   of   the   defendants    have   pled    guilty    to   witness
    tampering, another to misprision of a felony. In addition, Edwards
    was convicted in the first trial of interfering with Louisiana’s
    judicial and      administrative     processes    for    licensing    riverboat
                Second, the district court stated that an anonymous jury
    is appropriate when defendants face a lengthy incarceration and
    substantial monetary penalties, as they did here. Third, this case
    has received extensive publicity, enhancing the “possibility that
    jurors’ names would become public and expose them to intimidation
    and harassment.”       Krout, 66 F.3d at 1427.           In addition, in the
    previous     Edwards    trial,     “despite      extensive    and     expensive
    precautions by the United States Marshals Service to protect the
                As discussed in United States v. Krout, the five factors are: “(1)
    the defendants’ involvement in organized crime; (2) the defendants’ participation
    in a group with the capacity to harm jurors; (3) the defendants’ past attempts
    to interfere with the judicial process or witnesses; (4) the potential that, if
    convicted, the defendants will suffer a lengthy incarceration and substantial
    monetary penalties; and, (5) extensive publicity that could enhance the
    possibility that jurors’ names would become public and expose them to
    intimidation and harassment.” 
    66 F.3d 1420
    , 1427 (5th Cir. 1995).
    anonymity of the jury, certain members of the media aggressively
    followed, identified, and contacted jurors in violation of the
    anonymous jury order. . . .”           Therefore, the district court
    concluded, “the media’s intense interest in gaining access to the
    jurors’ names, addresses, and place of employment strongly counsels
    the Court to protect the panel from foreseeable harassment by the
    media and others.”    The district court continued: “Any attempts by
    the media or others to interfere with this order will not be
               On August 10, the district court denied the Media’s
    motions   for   reconsideration   of   the   anonymous   jury   order   and
    deferred ruling on the media’s alternative motion for access to
    jury information upon entry of verdict but stated that “[i]n the
    meantime, the media is ordered not to attempt to circumvent this
    Court’s ruling preserving the jury’s anonymity.”
               The News Media promptly appealed, challenging: (1) the
    district court’s August 9, 2000 Order to the extent it stated that
    “any attempt by the media or others to interfere with this Order
    will not be tolerated”; (2) the district court’s August 10, 2000
    minute entry stating that “the media is ordered not to circumvent
    this Court’s ruling preserving the jury’s anonymity”; and (3) the
    district court’s minute entry of August 10, 2000 indefinitely
    deferring the News Media’s request for post-verdict access to the
    jurors’ names, addresses, places of employment and the juror
    questionnaires.4      The News Media do not, however, challenge the
    substantive merit of the anonymous jury order.
          B.    The Trial and Its Aftermath
                Voir    dire   began   on    September   18,   2000.     After    the
    district court closed portions of the jury voir dire, the News
    Media sought a writ of mandamus ordering the district court to open
    the voir dire proceedings to the public and the press and to
    transcribe immediately and release any portion of voir dire held
    behind closed doors.        The district court entered its reasons for
    closing the voir dire on September 19, 2000.                On October 3, the
    News Media filed a notice of appeal regarding the same matter.
                On October 11, before the verdict was announced, the
    district court told the jurors that it was not going to release
    their identities unless they wished to waive or release themselves
    from anonymity. The trial judge also informed the jurors that they
    did not have to speak to anyone about the case and that, absent
    court   order,     they    could   not   be   interviewed    about   the     jury
    deliberations, but that they could discuss their general reactions
    to the trial.      When asked by the district court whether they wished
    to waive anonymity, none of the jurors indicated a desire to do so.
    However, the judge stated that if any juror later sought to be
                On September 5, the News Media filed a mandamus petition challenging
    the same orders.     This court consolidated the writ of mandamus with the
    aforementioned appeals.
    released from the confidentiality agreement, the court would put an
    order in the record identifying the person.
                The News Media immediately sought a post-verdict writ of
    mandamus    ordering      the   district   court   to   release   the   names,
    addresses and places of employment of the anonymous jurors and the
    completed juror questionnaires that were sealed during the trial.
    In the alternative, the News Media also filed a notice of appeal.
                On October 16, the court granted a motion to unseal the
    transcript of the closed voir dire.5          The district court denied the
    News Media’s motion for access to juror questionnaires, however, on
    the grounds that the questionnaires assured the jurors that all
    information would remain confidential and that the court would not
    breach this confidentiality agreement.              The court offered to
    release the questionnaires of consenting jurors, but it again
    refused    to   release    jurors’   names,    addresses,   and   places   of
    employment (without their consent).           Further, the court repeated
    that if any juror requested to be released from the confidentiality
    agreement, the court would place an order in the record identifying
    the juror.      The News Media have appealed and sought mandamus to
    reverse these orders.
                The district court’s order granting the motion to unseal the
    transcript of the closed voir dire renders moot the mandamus petition of
    September 18, 2000.
                The court went to extraordinary lengths to preserve the
    integrity of the jury system and conduct a fair trial in the face
    of relentless publicity, some of it generated by the parties
    themselves. Eager media have entertained the citizens of Louisiana
    and beyond with nonstop coverage of the current prosecutions of
    Louisiana’s colorful ex-Governor.           The court’s protective measures
    in this trial included: (1) a gag order on all trial participants;6
    (2) an anonymous, but not sequestered jury; (3) closure during
    trial of the jury selection process; (4) the August 9 and 10 orders
    that admonished against any attempt to circumvent or interfere with
    the   anonymous    jury   order;    and     (5)   post-verdict    orders    that
    (a) continue, until each individual juror requests otherwise, the
    confidentiality      of     juror   identity      and   questionnaires,      and
    (b)   shroud   the   jury    deliberations.         These   orders   have    not
    noticeably interfered with vigorous press coverage, except to limit
    inquiry into the background and makeup of the jury.                  Among all
    these orders, the News Media appealed the (now-moot) closure of
    jury selection, the non-circumvention orders and the post-verdict
    juror identification orders.7          They argue in addition that the
                The gag order on trial counsel, defendants and potential witnesses
    in this second Edwards trial was upheld after an appeal by defendant Harvey Brown
    in United States v. Brown, supra. The News Media appeared as amici in that
                Following oral argument, on October 6, 2000, this court dismissed
    without prejudice, on grounds of prematurity, that portion of the News Media’s
    appeal/mandamus petition challenging the indefinite deferral of their motion for
    post-verdict access to juror information. The issue is again before us on appeal
    cumulative effect of all the protective orders denied public access
    to the trial.       Each of the News Media’s issues deserves close
                                  II.   DISCUSSION
                Because this case involves constitutional and other legal
    questions, we review the district court’s orders de novo.                   See
    American Civil Liberties Union of Mississippi, Inc. v. Mississippi,
    911 F.2d 1066
    , 1069 (5th Cir. 1990).        “Specific factual findings of
    the district court on the issue are, of course, entitled to review
    under the clearly erroneous standard.”           Id.
          A.    The District Court’s Orders that the Media Not Circumvent
                Its Anonymous Jury Order8
    after the court entered its post-verdict juror identification orders.
                At the outset, we must consider whether the non-circumvention order
    is moot and whether our jurisdiction is defeated.       Two conditions must be
    satisfied in such a case for jurisdiction to be valid and the order considered
    not moot: “‘(1) the challenged action [must] in its duration [be] too short to
    be fully litigated prior to its cessation or expiration, and (2) there [must be]
    a reasonable expectation that the same complaining party would be subjected to
    the same action again.’”    Gannett Co., Inc. v. DePasquale, 
    443 U.S. 368
    , 377,
    99 S. Ct. 2898
    , 2904 (1979)(quoting Weinstein v. Bradford, 
    423 U.S. 147
    , 149, 
    96 S. Ct. 347
    , 349 (1975). Considering an order prohibiting the public and press
    from a pretrial suppression hearing, the Supreme Court concluded in Gannett that
    it had jurisdiction to review such a controversy and that the case was not moot.
    Id. The Court stated that a pretrial hearing was too short in duration to permit
    full review and that an order denying access to a transcript would nearly always
    be lifted prior to the completion of appellate review. The Court also concluded
    that it was reasonable that the petitioner, a newspaper publisher, would be
    subject to similar closure orders in the future. Id. Likewise, in Nebraska
    Press Assoc. v. Stuart, 
    427 U.S. 539
    96 S. Ct. 2791
     (1976), the Court reviewed
    an order restraining the news media from publishing or broadcasting accounts of
    confessions or admissions. The Court held that the controversy was “capable of
    repetition” because the defendant’s conviction could be reversed and the trial
    court could issue “another restrictive order to prevent a resurgence of
    prejudicial publicity before [the defendant’s] retrial.” Id. at 546, 96 S.Ct.
    at 2797. Because similar circumstances exist here, we likewise conclude that the
    controversy is neither moot nor our jurisdiction defeated.           This is a
                This is the first time an appellate court has been asked
    to consider how far a trial court may go, consistent with the First
    Amendment, in enforcing an order on juror anonymity.                  The News
    Media contend that the district court’s orders amounted to a prior
    restraint, “freezing” their publication of information about the
    jurors and juror     conduct that might arise during trial.            Nebraska
    Press Ass’n v. Stuart, 
    427 U.S. 539
    , 559, 
    96 S. Ct. 2791
    , 2803
    (1976).     The government responds that since the court’s orders
    intended no more than to prevent publication of information from
    which the jurors could be identified, they fell within the court’s
    broad discretion to manage the trial.
                Between the parties’ positions lies an area of agreement:
    the court could determine that maintaining jury anonymity was
    “controversy . . . capable of repetition under circumstances in which each
    repetition may evade review.” United States v. Chagra, 
    701 F.2d 354
    , 358 (5th
    Cir. 1983).
          In addition, our appellate jurisdiction lies under the collateral order
    doctrine.   “Congress has limited the jurisdiction of this Court to ‘final
    decisions of the district courts.’” U.S. v. Brown, 
    218 F.3d 415
    , 420 (5th Cir.
    2000). Although the district court’s orders are not final orders, the Supreme
    Court has recognized a collateral order exception to this final order requirement
    because “certain decisions of the district court are final in effect although
    they do not dispose of the litigation.” Davis v. East Baton Rouge Parish Sch.
    78 F.3d 920
    , 925 (5th Cir. 1996). Such orders may be appealed “if they (1)
    are conclusive, (2) resolve important questions that are separate from the
    merits, and (3) are effectively unreviewable on appeal from the final judgment
    in the underlying action.” Brown, 218 F.3d at 420. Courts have applied this
    doctrine to appeals of orders affecting the media’s First Amendment rights. See,
    e.g., United States v. Gurney, 
    558 F.2d 1202
    , 1206-07 (5th Cir. 1977).        The
    challenge to the district court’s orders meet these criteria because: (1) the
    orders were conclusive “with no further consideration . . . contemplated,”
    Gurney, 558 F.2d at 1206; (2) they involve important questions unrelated to the
    merits of the case; (3) and the issues would otherwise essentially be
    unreviewable on appeal from the final judgement.
    necessary to prevent extraneous harassment and intimidation of
    jurors.    It could enter an order preventing court personnel from
    disclosing, or the media from eliciting official court records that
    would identify the jurors.          The News Media have conceded these
    points by not appealing the anonymous jury order itself.               We must
    assume that that order, unusual as it is, was both fully supported
    in the record and fully enforceable against parties within the
    court’s control.9
                The media assert, however, that the non-circumvention
    orders threaten also to proscribe independent newsgathering, e.g.
    any story not derived from confidential court records, that might
    deal with jurors. While this is a self-justifying argument, to the
    extent that the media never properly sought clarification of the
    orders,10 it is not without force.           The language of the court’s
    orders, which restricts “interference” and “circumvention”, is
    ambiguous. Alternatively, it may connote “not going around” either
    the substance of the order, i.e. by destroying juror anonymity, or
                Compare 28 U.S.C. § 1863(b)(7) (a jury plan “may . . . permit . . .
    [the court] to keep these [jurors’] names confidential in any case where the
    interests of justice so require.”).
                We decline to consider self-serving correspondence that the media
    sent the trial court in an effort to clarify the judge’s non-circumvention
    orders. Neither such correspondence, nor the court’s alleged oral interpretation
    of the order, is part of the record. The motion to supplement the record to
    include this correspondence is denied.
    the integrity of court procedures, i.e. by obtaining confidential
    court data.
               The latter interpretation poses no problem.                   While the
    news media are entitled to receive, investigate and report on all
    public proceedings involved in a trial, the right to gather news,
    much like other first amendment rights, is not absolute.                 See In re
    Express News Corp., 
    695 F.2d 807
    , 809 (5th Cir. 1982) (citing Zemel
    v. Rusk, 
    381 U.S. 1
    , 17, 
    85 S. Ct. 1271
    , 1281 (1965)).                It does not
    “guarantee     journalists     access      to   sources   of    information      not
    available to the public generally.”               Id.     (citing Branzburg v.
    408 U.S. 665
    , 684, 
    92 S. Ct. 2646
    , 2658 (1972)); see also
    United   States     v.   Gurney,    
    558 F.2d 1202
    ,    1208    n.9   (5th   Cir.
    1977)(“‘When representatives of the communications media attend
    trial they have no greater rights than other members of the
    public.’”) (quoting Estes v. Texas, 
    381 U.S. 532
    , 584, 
    85 S. Ct. 1628
    , 1654 (1965) (Warren, C.J., concurring)).                 As this court has
    held, a trial court may refuse to allow the media to inspect
    documents not a matter of public record, including jurors’ names
    and addresses; such orders are distinct from prior restraints.
    Gurney, 558 F.2d at 1210.           To the extent the orders warned the
    media    not   to    publish       information     illegally       gleaned      from
    confidential court files, it was justified.               See     Florida Star v.
    491 U.S. 524
    , 534, 
    109 S. Ct. 2603
    , 2609 (1989).11              Similarly,
    although the media generally have a right to publish information
    that they obtain, “[n]either the First Amendment nor the Fourteenth
    Amendment mandates a right of access to government information or
    sources of information within the government’s control.”               Houchins
    v. KQED, Inc., 
    438 U.S. 1
    , 15, 
    98 S. Ct. 2588
    , 2597 (1978).
                If the court intended the former connotation, however,
    then it could be tricky to determine how much information revealed
    in an independently gathered news article might compromise juror
    anonymity.    Nevertheless, a violation of the orders would subject
    the press to sanctions.        The orders thus plausibly constituted a
                In Florida Star v. BJF, 
    491 U.S. 524
    109 S. Ct. 2603
     (1989), the
    Court held that imposing damages on a newspaper for publishing the name of a rape
    victim violated the First Amendment. In so doing, however, the Court refused to
    hold broadly that truthful publication may never be punished consistent with the
    First Amendment.    Id. at 532, 109 S.Ct. at 2609 (“Our cases have carefully
    eschewed reaching this ultimate question, mindful that the future may bring
    scenarios which prudence counsels our not resolving anticipatorily.”). Rather,
    the government “retains ample means of safeguarding significant interests upon
    which publication may impinge.” Id. at 533, 109 S.Ct. at 2609. This includes
    protecting anonymity.
          To the extent sensitive information rests in private hands,
          the government may under some circumstances forbid its non-
          consensual acquisition. . . .        To the extent sensitive
          information is in the government’s custody, it has even
          greater power to forestall or mitigate the injury caused by
          its release. The government may classify certain information,
          establish and enforce procedures ensuring its redacted
          release, and extend a damages remedy against the government or
          its officials where the government’s mishandling of sensitive
          information leads to its dissemination.
    Florida Star, 491 U.S. at 534, 109 S.Ct. at 2609.          In Florida Star, the
    imposition of damages was unconstitutional in part because the government itself
    made the information available to the media.
    prior restraint because it gagged the press from reporting some
    kinds of independently gathered stories pertinent to the trial.12
                Prior    restraints     on    publication    by   the   press    are
    constitutionally disfavored in this nation nearly to the point of
    extinction.     To avoid redundancy in the case reports, we forbear
    repeating the background and caselaw that compel this conclusion
    under the First Amendment.        See generally Nebraska Press Ass’n v.
    427 U.S. 539
    96 S. Ct. 2791
     (1976); Brown, supra.                    But
    vital as it is to protect freedom of the press, especially in
    reporting about the criminal justice system,13 the rights of the
    press may collide with a criminal defendant’s equally significant
    Sixth Amendment right to a fair trial.                “In general, a prior
    restraint (usually directed at the press) will be upheld only if
    the government can establish that ‘the activity restrained poses
    either a clear and present danger or a serious and imminent threat
    to a protected competing interest.’”                Brown, 218 F.3d at 424
    (citing Levine v. U.S. Dist. Court, 
    764 F.2d 590
    , 595 (9th Cir.
    1985) (citations omitted)).         In Nebraska Press, the Supreme Court
    examined    a   restraint   against      pretrial   publication     of   certain
                 “A prior restraint . . . has an immediate and irreversible sanction.
    If it can be said, that a threat of criminal or civil sanctions after publication
    “chills” speech, prior restraint ‘freezes’ it at least for the time.” Nebraska
    Press, 427 U.S. at 559, 96 S.Ct. at 2801.
                See generally Sheppard v. Maxwell, 
    334 U.S. 333
    86 S. Ct. 1507
    evidence inculpating the defendant.                The state courts had intended
    to stanch excessive publicity that might taint a small town’s jury
    pool.     The Court examined the evidence before the trial judge to
    determine “(a) the nature and extent of pretrial news coverage; (b)
    whether other measures would be likely to mitigate the effects of
    unrestrained        pretrial      publicity;       and    (c)   how   effectively   a
    restraining order would operate to prevent threatened danger.” 427
    U.S.    at   562,    96   S.Ct.    at     2804.     The    district    court’s   non-
    circumvention orders in this case must be examined by the Nebraska
    Press criteria.
                  In    Nebraska Press, the court’s gag order was first
    examined in light of the goal of minimizing prejudicial pretrial
    publicity. In this Edwards prosecution, by contrast, the court was
    trying to prevent harassment and intimidation of venire members and
    jurors by the press and the defendants.                   Evidence supporting the
    court’s fears of an imminent and serious threat from both these
    sources was abundant.          Two of the defendants had been charged in
    the indictment and pled guilty to witness tampering and another to
    misprision of a felony.              This particular prosecution involved
    charges      of    interfering     with    state    judicial     processes   through
    attempted bribery of a judge, attempting illegally to terminate a
    federal investigation, and influencing a court-appointed special
    master.      In the first Edwards prosecution, allegations that the
    former Governor and his son bugged the office of an FBI agent had
    been severed for separate trial.                Edwards was convicted in the
    first   trial     of     interfering     with     Louisiana’s    judicial     and
    administrative processes for licensing riverboat casinos.                   During
    the first trial, the media had identified and pursued jurors and
    attempted to interview them despite an anonymity order.                Repeated
    allegations of juror misconduct were raised in the first trial,
    necessitating inquiries by the court concerning possible outside
    influences   on     those     jurors.    In     this   prosecution,   the    media
    zealously sought to access sealed information.                  Finally, when
    Governor Edwards was tried on criminal charges several years ago,
    there was evidence of possible attempts to influence jurors through
    their relatives.        The district court could well conclude that the
    integrity and independence of the jury process were at risk.
                Protecting against these unique threats to the integrity
    of the jury process posed a significant challenge in addition to
    and different from the relatively well-charted field of excessive
    pretrial publicity.           To a greater extent than in Nebraska Press,
    then, the trial court could justifiably find a clear and present
    danger to the integrity of the jury process if juror anonymity were
                Because the fair trial threat in this case originates
    from different sources from that in Nebraska Press, the evaluation
    of less restrictive means, the second of the Supreme Court’s
    criteria,    must      also    differ.     In    Nebraska   Press,    the   Court
    enumerated several alternatives that would minimize the effect of
    excessive publicity short of gag orders on the press.                     Those
    alternatives included imposing gag orders on trial participants,
    granting a change of venue, delaying the trial, or sequestering
    jurors.    In Brown, this court has already upheld a gag order on the
    trial participants in the second Edwards trial, while emphasizing
    the determined efforts of defendants and all counsel to circumvent
                For purposes of combating direct intimidation by the
    press or the defendants, however, the only obvious alternative to
    enforcing juror anonymity seems to be sequestration.               Because the
    media did not challenge the anonymous jury order, they should not
    be able to back into the issue with a collateral attack.                 And in
    any event, “sequestering the jury imposes well-known and serious
    burdens.”    Brown, 218 F.3d at 431.        Moreover, juror anonymity and
    sequestration are remedies for overlapping but distinct problems.14
    Sequestration protects the jury from trial publicity, extraneous
    influences and harassment.        See e.g., Mayola v. State of Ala., 
    623 F.2d 992
    , 1002 (5th Cir. 1980); United States v. Harris, 
    458 F.2d 14
                The ABA Standards for Criminal Justice Fair Trial and Free Press
    states, in its section about the conduct of a criminal trial when problems
    relating to the dissemination of potentially prejudicial materials are raised,
    that “[a]s an alternative to sequestration in a case where there is a significant
    threat of juror intimidation during or after the trial, the court may consider
    an order withholding public disclosure of jurors’ names and addresses as long as
    that information is not otherwise required by law to be a matter of public
    record.” ABA Standards, § 8-3.6(b).
    670, 674 (5th Cir. 1972)(“The purpose of sequestering is, the cases
    agree,    to    protect   the   jury   from   interference.”).      Anonymity
    protects, in addition to the jurors, the venire persons and the
    jurors’ families from influence exerted by outside parties.                See
    Krout, 66 F.3d at 1427 (“‘[T]he use of an anonymous jury is
    constitutional when, 'there is strong reason to believe the jury
    needs    protection'      and   the   district   court   'tak[es]   reasonable
    precautions to minimize any prejudicial effects on the defendant
    and to ensure that his fundamental rights are protected.'")(quoting
    United States v. Wong, 
    40 F.3d 1347
    , 1376 (2d Cir. 1994)).                  To
    insist on a sequestered, but not anonymous, jury in this case would
    not necessarily have prevented undue influence being brought to
    bear through harassment of jurors’ families.             Sequestration is an
    imperfect alternative to address the court’s particular concerns
    about juror intimidation in this case.
                   The third factor discussed in Nebraska Press was the
    efficacy of the prior restraint.             The Supreme Court demonstrated
    that the Nebraska courts’ order preventing publication of certain
    inflammatory information was overbroad, unenforceable, and unlikely
    to fulfill its purpose.         On examination, this is the Achilles heel
    of the district court’s noncircumvention orders.              In the instant
    case, the gag order is generally, though not fully, enforceable,
    since acts that would compromise a juror’s anonymity would almost
    surely take place within the court’s jurisdiction, no matter where
    publication occurred.15       But the district court could not punish
    every potentially offending publication outside its jurisdiction.
    Moreover, the court’s orders are overbroad, based on the ambiguity
    of   the   terms   “circumvent”       and    “interfere”    and   the   various
    gradations of information that, if published, might conceivably
    reveal a juror’s identity.       The orders may also ultimately fail to
    achieve their purpose; restraining the press from independent
    investigation and reporting about the jurors would not necessarily
    deter defendants who have already manifested a willingness to
    tamper with court processes. Just as obviously, however, enforcing
    a prior restraint on the press would make it more difficult for the
    defendants to obtain information compromising juror integrity.
    Without a prior restraint on these overeager media representatives,
    juror anonymity might not be enforceable at all.
                With considerable doubt, we conclude that under the
    standards of Nebraska Press, particularly the requirement that a
    court’s    prior   restraint     order      be   narrowly   efficacious,     the
    noncircumvention     orders    were    unconstitutional     insofar     as   they
    interdicted the press from independent investigation and reporting
    about the jury based on facts obtained from sources other than
                There is of course the possibility that a member of the media might
    innocently, and without knowledge of the court’s noncircumvention order, publish
    information that violated the anonymity of jurors, but we need not hypothesize
    so far for purposes of this case.
    confidential court records, court personnel or trial participants.
    Our doubt is based on the uncertainty whether the press would have
    cooperated with an anonymous jury order whose enforceability was so
    limited.   Can it be that the First Amendment prevents a court from
    fully enforcing orders it strongly believes necessary to protect
    jurors, the jury system and the defendant’s fair trial rights?
    Since the Supreme Court has not in recent history upheld any limit
    on the press,16 we decline to be the first court to do so.      We also
    hope that the press understand that their enormous power under the
    First Amendment should be tempered with respect for the judicial
    system that protects the press as well as criminal defendants and
    that inherent in such respect there should be deference to the
    spirit of the court’s anonymous jury order.
         B.    The Order Denying Post-Verdict Access to Juror
               The News Media assert that there is no compelling reason
    justifying continued “secrecy” about the jurors.         In particular,
    they submit that the district court’s reason for not releasing
    jurors’ names and addresses - its promise of confidentiality - is
    insufficient, and the “severe restriction” on the News Media’s
    ability to contact jurors is not narrowly tailored to prevent a
    substantial threat to the administration of justice.         Since the
    judicial system is presumptively open, access to information about
               Apart from dicta in Florida v. BJF - supra.
    jurors cannot be denied absent extraordinary circumstances.                   We
    disagree with this characterization of the court’s reasoning, the
    News Media’s interpretation of the scope of the court’s order, and
    their reading of caselaw.
                Tensions between First Amendment rights and the right of
    an accused to trial by an impartial jury frequently develop in a
    “sensational” case like this.         Nebraska Press, 427 U.S. at 551, 96
    S.Ct. at 2799.       While a denial of access to confidential court
    information may hamper newsgathering, this burden is thought to be
    incidental    when    strong     governmental     interests      are   involved.
    Gurney, 558 F.2d at 1209.          Ensuring that jurors are entitled to
    privacy and protection against harassment, even after their jury
    duty has ended, qualifies as such an interest in this circuit.
    United States v. Harrelson, 
    713 F.3d 1114
    , 1116 (5th Cir. 1983);
    Express News, 695 F.2d at 810;              Gurney, 558 F.2d at 1210 n.12
    (“[T]he judge was following a well-established practice when he
    refused to publicly release the jury list, which included the
    names, addresses, and other personal information about the jurors.
    Such    protection    of   the    privacy    of   the   jurors     was   clearly
    permissible, and certainly appropriate in a trial which attracted
    public attention as this one did.”).17 The judge’s power to prevent
                We note that in Press-Enterprise Co. v. Superior Court of California,
    the Supreme Court held that a trial court could not constitutionally close all
    but three days of six weeks of voir dire to protect privacy interests of
    prospective jurors without considering alternatives to closure and articulating
    harassment and protect juror privacy does not cease when the case
    ends.       Harrelson, 713 F.2d at 1117; see also United States v.
    823 F.2d 111
    , 120 (5th Cir. 1987)(“[A]lthough post-trial
    restrictions on news gathering must be narrowly tailored, the
    jurors are entitled to privacy and protection from harassment even
    after completing their duties.”).
                     The News Media preliminarily complain that the district
    court      did     not   issue    findings     that    support   continued   juror
    anonymity.         Specific findings are not required in this circuit
    where      the    reasons   for    the   court’s      decision   are   obvious   and
    compelling.        In a case where a district court placed restrictions
    on proposed interviews with discharged jurors, this court stated
    that there was no need for the district court judge to hold
    hearings18 before issuing such an order, especially in a highly
    findings to support the broad order. 
    464 U.S. 501
    , 510, 
    104 S. Ct. 819
    , 824
    (1984). The Court, however, was concerned with the broad sweep of the closure
    order and stated that the trial judge could seal “such parts of the transcript
    as necessary to preserve the anonymity of the individuals sought to be
    protected.” Id. at 513, 104 S.Ct. 825-26. Applying Press-Enterprise, in Edwards
    this court stated that “the Press I Court instructed that redaction of juror
    names or portions of the transcript may constitute a reasonable alternative to
    safeguard jurors from unwarranted embarrassment and yet preserve the competing
    interests served by disclosure.” Edwards, 823 F.2d at 120. Likewise, this court
    rejects the News Media’s argument that “‘minor discomfort’ of jurors does not
    warrant the level of solicitude afforded the jurors in Press I,” finding instead
    that the “usefulness of releasing jurors' names appears to us highly
    questionable.” Id.
                 The ABA Standards for Criminal Justice Fair Trial and Free Press
    state that a court may issue a closure order denying access to specified portions
    of judicial proceedings or related documents only after the parties and the
    public are provided reasonable notice and an opportunity to be heard.         ABA
    Standards, § 8-3.2(b)(1). In addition, the standards state that the court should
    publicized case.     Harrelson, 713 F.2d at 1117.           “A federal judge is
    not the mere moderator of a jury trial; he is its governor for the
    purpose of insuring its proper conduct.”             Id.    The trial court has
    broad   discretion,     “‘based    on   law   and    on    his    own   and   common
    experience,’ over aspects of the trial concerning the ‘handling of
    jurors,’ e.g. sequestration, juror access to information, and
    ‘harassment    of   jurors.”      Edwards,     823    F.2d       at   116   (quoting
    Harrelson, 713 F.2d at 1117); see also Gurney, 
    558 F.2d 1202
    , 1209
    (“Within this discretion, therefore, the district judge can place
    restrictions on parties, jurors, lawyers, and others involved with
    the proceedings despite the fact that such restrictions might
    affect First Amendment considerations.”).                 The district court’s
    order maintaining a level of post-verdict juror anonymity must be
    make specific findings that: “(A) unrestricted access would pose a substantial
    probability of harm to the fairness of the trial or other overriding interest
    which substantially outweighs the defendant’s right to a public trial; (B) the
    proposed order will effectively prevent the aforesaid harm; and (C) there is no
    less restrictive alternatively reasonable available to prevent the aforesaid
    harm.” The Reporter’s Key to the standards makes clear that the principle of
    access extends to jury selection, although it does not indicate whether this
    section applies to the release of information regarding anonymous jurors. The
    Reporter’s Key accompanying that section of the standards governing the selection
    of a jury, Standard § 8-3.5, discusses whether a court may restrain the press
    from knowing and/or publishing the names and addresses of jurors. The Reporter’s
    Key suggested that “[c]ourts may withhold jurors’ names and addresses upon
    particularized findings that ‘the interests of justice so require.’” However,
    “[t]he mere desire of jurors to maintain privacy is not enough to support a
    decision to withhold names and addresses.” Reporter’s Key to ABA Standard § 8-
    3.2, This court’s cases have afforded greater
    discretion to the district court than the ABA Standards recommend. Although this
    court takes these recommendations into consideration, we are not bound by them
    and have previously declined to follow them. See United States v. Capo, 
    595 F.2d 1086
    , 1092 n.6 (5th Cir. 1970) (refusing to adopt an ABA Standard regarding
    jurors exposed to pre-trial publicity because it would require that this court
    invoke its supervisory powers where the trial court took appropriate measures).
    placed in context.       It rests on an earlier promise of anonymity,
    which itself was grounded in well-documented threats by the media
    and the defendants to jurors’ privacy and independence.                      The
    drumbeat     of    publicity    surrounding     the   Edwards     prosecutions
    continues to this day.         Requiring the court to recite such details
    and repeat obvious facts would be a meaningless exercise.19
                Turning to the scope of the court’s order, the News Media
    overlook that this court refused, in Harrelson, to hold that a
    district judge abused his discretion by banning repeated requests
    for post-trial juror interviews where jurors expressed a desire not
    to be interviewed.       Harrelson, 713 F.2d at 1118.         There is little
    practical difference between the Harrelson order and the district
    court’s order in the instant case. Here, the district judge polled
    the jurors before releasing them from service to ask whether they
    wished to have their names made public.               None desired to waive
    anonymity.        The judge informed the jurors that if anyone later
    wanted to have his identity released, he could do so.             Both orders,
    though slightly different in mechanism, have the same effect; they
    protect the jurors from unwanted harassment.               As this court has
                The cases from other circuits on which the News Media rely for a rule
    requiring specific findings were invariably those where the trial courts made no
    effort to support their orders, and the case circumstances did not justify them.
    See U.S. v. Antar, 
    38 F.3d 1348
     (3d Cir. 1994); In re Globe Newspaper Co., 
    920 F.2d 88
     (1st Cir. 1990); but compare U.S. v. Three Juveniles, 
    61 F.3d 86
    Cir. 1995) (upholding federal statute allowing closure of federal prosecutions
    involving juveniles).
          [c]ommon sense tells us that a juror who has once
          indicated a desire to be let alone and to put the matter
          of his jury service behind him by declining to be
          interviewed regarding it is unlikely to change his mind;
          and if he does, he is always free to initiate an
          interview. The court’s order does no more than forbid
          nagging him into doing so.
    Id. at 1118.    Moreover, the district court’s order does not ban all
    media interaction with the jurors, it just allows the jurors to
    signal      their    willingness    to      submit      to     media   contact.20
    Significantly, at least one juror was interviewed following the
    conclusion of the trial.
                 The News Media rely principally on this court’s decision,
    In   re    Express-News   Corp.,   
    695 F.2d 807
       (5th    Cir.   1982),    to
    challenge the district court’s post-verdict order limiting jury
    contact.     In Express-News, we vacated a district court rule that
    categorically       forbade   interviews    of    any   juror    concerning     the
    deliberations or the jury verdict, except by leave of court granted
    upon good cause shown.        Id. at 807.     Such a restriction could not
    be imposed on newsgathering “unless it is narrowly tailored to
    prevent a substantial threat to the administration of justice.”
    695 F.2d at 810.
                While the News Media assume that the post-verdict juror anonymity
    permitted by the court’s order violates their right of access to juror
    identities, what they are really complaining about is the enhanced difficulty of
    contacting former jurors to interview them. The court’s order does not mandate
    anonymity; it permits it.
                  Express-News marks only the beginning of this court’s
    series   of    cases    on   post-verdict   access    to    jurors,   however.
    Recently, this court upheld an order limiting access to jurors.
    See United States v. Cleveland, 
    128 F.3d 267
    , 269 (5th Cir. 1997).
    There, the judge instructed the jurors that they had no obligation
    to speak to anyone about the case.           In addition, she instructed
    that “absent a special order by me, no juror may be interviewed by
    anyone concerning the deliberations of the jury.              I also instruct
    you that the lawyers and the parties are not to attempt to question
    you without an order from me.”         The order was held sufficiently
    narrow because it applied only to interviews with the jurors
    themselves and only concerning their deliberations, but did not
    apply to the verdict itself.          Id. at 269.          The order did not
    foreclose “questions about a juror’s general reactions,” id., nor
    did it “prevent jurors from speaking out on their own initiative.”
    Id.   Also in contrast to Express-News, the order did not impose
    restrictions on post-verdict interviews and then condition those
    restrictions by requiring “those who would speak freely to justify
    special treatment by carrying the burden of showing good cause.”
    Id. at 270 (quoting Express-News, 695 F.2d at 810).            That the order
    was unlimited in time was not in itself dispositive, because we
    previously     upheld    similar   restrictions      in    Harrelson,   supra.
    Likewise, the fact that the order applied equally to jurors willing
    to speak and to those desiring privacy was not decisive.                         Cleveland
    was distinguishable from Express News because it attracted a great
    deal of media coverage.            Id.
                The district court’s order denying the request for juror
    identifying       information       and   questionnaires         in     this      case     is
    analogous    to    the    order     upheld     in   Cleveland.             The    order    is
    sufficiently narrow.         It has no requirement for a showing of good
    cause for conducting post-verdict interviews.                     It merely states
    that the court will not release juror information without the
    juror’s consent.         The judge affirmatively asked the jurors whether
    they wished to relinquish their privacy.21                Any juror may, at any
    time, voluntarily decide to relinquish his confidentiality.                               The
    only   restriction        placed     on   such      interviews        is    the    court’s
    instruction that jurors may not be interviewed concerning juror
    deliberations absent a special order from the judge.                               This is
    consistent with our understanding that “[c]ompelling governmental
    interest[s] in the integrity of jury deliberation require that the
                In In the Matter of Dallas Morning News Co., 
    916 F.2d 205
    , 206 (5th
    Cir. 1990), this court denied a petition for writ of mandamus under a similar set
    of circumstances.    There, a newspaper requested that this court direct the
    district court to conduct voir dire proceedings in public, attended by the press.
    We recommended that the district court, “rather than closing a portion of the
    voir dire proceeding in anticipation of privacy concerns, . . . inform the
    prospective jurors carefully, in advance, that any of them may request to be
    questioned privately . . .” Id. at 206. The judge here followed a similar
    practice by asking the jurors whether they wished to be released from their
    confidentiality agreements.
    privacy of such deliberations and communications dealing with time
    be preserved.”   Gurney, 558 F.2d at 1210-11.
               According   to   this   circuit’s   established   caselaw,
    protecting jurors from post-verdict harassment and invasions of
    privacy is a legitimate concern. The measures used by the district
    court, while at the outer limit of permissible restrictions, were
    narrowly tailored to prevent real threats to the administration of
    justice, not just in this case but in the subsequent related
    prosecutions.    If jurors voluntarily waive their anonymity and
    consent to interviews on matters other than jury deliberations, so
    be it.   They need not become unwilling pawns in the frenzied media
    battle over these cases.
               The News Media finally contend that they do not desire
    simply juror interviews but the basic information revealed by the
    jurors’ names, addresses and still-confidential questionnaires.
    Juror anonymity, in other words, should have ceased when the trial
    ended.   No caselaw requires this result, and the question appears
    closely tied to the rationale for initially convening an anonymous
    jury, an order they did not appeal.     Threats of intimidation and
    harassment do not necessarily end with the conclusion of trial.    In
    these prosecutions, several post-verdict motions have assailed
    jurors’ conduct; without continuing anonymity, jurors would remain
    vulnerable to abuse by those acting for the defendants.      There may
    be cases where a district court would abuse its discretion by
    refusing to revoke an order of juror anonymity post-trial, but this
    is not one of them.
           C.   The Synergistic Impact of Closure Orders
                Although the News Media failed to challenge the initial
    jury anonymity order, they nevertheless assert that the closure and
    gag orders designed to protect the integrity of trial, even if not
    individually unconstitutional, cumulatively deprived the public of
    the constitutional openness required in our criminal trials. These
    orders included (a) the gag order on trial participants, upheld by
    this   Court   in   Brown,   supra;    (b)    the   sealing   of   the   juror
    questionnaires; (c) the initial closure of most of the voir dire
    hearings; (d) the noncircumvention orders preventing identification
    during trial of the jurors; and (e) the confidentiality orders
    protecting the jury after trial.           Under the circumstances of this
    case, they did not.
                Very real threats were posed by excessive media coverage,
    by the trial participants’ eagerness to manipulate the News Media,
    and by the risk of jury harassment and taint.                 The judge was
    empowered and entitled to counteract each of these threats in order
    to assure a fair trial.      With the sole exception of the overbroad
    noncircumvention orders, her actions were appropriate.             And as for
    the public perception of the trial’s fairness, it cannot have been
    harmed.     Except for a blackout on the jurors’ identities, media
    coverage of the trial was extensive.              The public knew what was
    going on.       They knew that the jury rendered split verdicts,
    exonerating all but defendant Brown and convicting him only on some
    of the counts.        The public can perceive that the jurors were
    neither    in   the   prosecution’s     pocket,    nor,   because    of   their
    anonymity, could they have been improperly influenced by the
    defendants.22 The result of the trial seems to belie any contention
    that the public’s rights to a transparent criminal justice system
    were unconstitutionally compromised.
                                  III.    CONCLUSION
                For the foregoing reasons, we first conclude that the
    district court imposed an unconstitutional restraint to the extent
    it ordered the News Media not to interfere with or circumvent the
    anonymous jury order by wholly independent, legal newsgathering.
    We reverse the district court’s orders to that extent and, in light
    of our disposition, deny the mandamus petition on this matter.
    Second, the district court’s order of October 16 granting the News
    Media’s motion to unseal the transcript of the closed voir dire
    renders the News Media’s petition for writ of mandamus moot on that
    issue and we deny it without prejudice.               Third, we affirm the
    court’s post-verdict orders maintaining juror confidentiality,
                In commenting on how juror anonymity might have affected the public’s
    perception of the openness and fairness of the trial, we do not reach the direct
    question whether anonymity was justified. That question is not before us.
    limiting the release of juror information, and placing restrictions
    on juror interviews.
              The orders of the district court are AFFIRMED in Part,
    REVERSED in Part.   Petitions for writ of mandamus are DENIED.