Opinion
CR F 99-5217 AWI
November 1, 2000
MEMORANDUM OPINION AND ORDER RE MOTION TO UNSEAL JUDICIAL RECORDS
On September 28, 2000, Intervenors the Hearst Corporation, Associated Press, McClatchy Newspapers, Inc., Exin, LLC, and Knight-Ridder, Inc., ("Intervenors") filed a motion to unseal judicial records in this case, setting the hearing on the matter for October 23, 2000. The court entered an order on October 3, 2000, setting a briefing schedule and resetting the hearing for October 30, 2000. On October 13, 2000, the Government filed a notice that it takes no position with respect to Intervenors' motion. On October 16, 2000, Defendant Cary Stayner filed an opposition to Intervenors' motion.
Pursuant to an order entered by the court on October 17, 2000, Defendant's presence at the hearing on this matter was waived.
BACKGROUND
In the course of pretrial motions in this case, the Government was directed to file a proffer of the evidence which it contended satisfied the "serious physical abuse" element of the "heinous, cruel and depraved" statutory aggravating factor pursuant to 18 U.S.C. § 3592(c)(6), such as would justify imposition of the death penalty. At Defendant's request, the Government's proffer was filed under seal. On July 7, 2000, Intervenors filed their Motion to Vacate Order Sealing Government's Proffer Re: "Heinous, Cruel and Depraved." In a Memorandum Opinion and Order entered July 31, 2000, the court denied Intervenors' motion to vacate the court's order sealing the Government's proffer.In the Memorandum Opinion and Order, the court found that the issue of unsealing the Government's proffer was most correctly analyzed under the common law right to inspect and copy public documents. The court found, however, that either under the common law standard or the First Amendment standard, the outcome would be the same. The court found that Intervenors had made the required threshold showing of a legitimate need for disclosure and that a qualified First Amendment right of access existed in the Government's proffer, which could be overcome "only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailor to serve that interest." Press Enterprise v. Superior Court of California for the County of Riverside, 478 U.S. 1, 9, 106 S.Ct. 2735 (1986). The court concluded that the temporary sealing of the Government's proffer and Defendant's response served the compelling or overriding interest of protecting Defendant's due process rights to a fair trial. See Gannett Co. v. DePasquale, 443 U.S. 368, 378-79, 99 S.Ct. 2898, 2904-05 (1979).
On August 28, 2000, Intervenors filed a petition for writ of mandate in the United States Court of Appeals for the Ninth Circuit. Intervenors sought an order compelling the court to issue a new order unsealing the Government's proffer. On September 13, 2000, Defendant entered pleas of guilty to the charges in the superceding indictment. Defendant is scheduled to be sentenced on November 30, 2000.
On September 18, 2000, the Ninth Circuit denied the petition for writ of mandate on the ground that the Government and Defendant had "entered into a plea agreement that moots the possibility of a death sentence." On September 27, 2000, Intervenors filed the motion now before the court. Intervenors seek to unseal not just the proffer and response, but all sixteen documents listed in the court's Informational Order Re Sealed Documents, filed August 30, 2000.
DISCUSSION
In their present motion, Intervenors argue that the court has already held that they have standing in this matter, that there is a presumptive right of access to judicial files in a criminal action both under the common law and under the First Amendment, and that if access is required under either standard, such access must be granted. Intervenors correctly claim that the court previously declined to unseal the proffer because it found that to do so would create a substantial probability of prejudice to Defendant's right to a fair trial. Intervenors now contend that because Defendant has pled guilty to the charges against him, and the court has accepted the plea, no reason remains to keep the judicial records under seal. Essentially, Intervenors contend that because there will be no trial in this case, the court's basis for keeping the records in this case sealed has ceased to exist.
In regard to the documents docketed as numbers 63 and 68, which are the Government's proffer and Defendant's response, Intervenors argue that the court has already determined that they meet the two-part, First Amendment standard for presumed public access, and that Defendant's plea simply enhances the second portion of the analysis. Intervenors argue that the prosecution's decision to agree to Defendant pleading guilty on the condition that he not be sentenced to death, and the court acceptance of the plea, are matters of legitimate public concern. Intervenors argue that the factual basis underlying the charges will allow the public to better understand how the different components of the criminal justice system operate and how decisions are made.
In regard to documents docketed as numbers 10, 19, 23, 31 and 35, described in the court's Informational Order Re Sealed Documents as payment vouchers, Intervenors state that they can only assume that these vouchers involve some expenditure connected with Defendant's defense. Intervenors claim that while an argument could be made that such information might jeopardize a defendant's right to a fair trial, the fact that there will now be no trial in this case eliminates that argument.
Finally, Intervenors address documents docketed as numbers 37 and 38 (concerning an ex parte application for subpoena duces tecum), numbers 45-47 (concerning an ex parte application for transportation for the purposes of medical testing), and numbers 29, 30, 32 and 33 (concerning an ex parte motion for order permitting disclosure of grand jury information which was subsequently withdrawn). Intervenors claim that the lack of any further description of these documents prevents them from making a detailed legal argument, but repeat their general argument about the presumptive right of access to judicial records. Intervenors also repeat their argument that the court's sole basis for previously denying the motion to unseal was protection of Defendant's right to a fair trial. Intervenors emphasize that because of Defendant's guilty plea, no trial will occur in this case.
Defendant presents several separate contentions in support of his opposition to Intervenors' motion to unseal the judicial records in this case. First, Defendant contends that Intervenors are incorrect in arguing that the justification for sealing documents docketed as numbers 63 and 68 has disappeared because Defendant has entered guilty pleas. Defendant argues that it is well-established that a conviction does not become final until entry of judgment and sentencing. See Fed.R.Crim.Pro. 32(d) (a guilty plea does not become final and may be withdrawn for any fair or just reason before sentence is imposed); Teague v. Lane, 489 U.S. 288, 314 n. 2 (1989) (O'Connor, J., joined by Rehnquist, C.J., Scalia, J., and Kennedy, J.) ("a criminal judgment necessarily includes the sentence imposed upon the defendant");Parr v. United States, 351 U.S. 513, 518 (1956) ("Final judgment in a criminal case means sentence.") (quoting Berman v. United States, 302 U.S. 211, 212 United States v. Douglas, 974 F.2d 1046, 1048 n. 2 (9th Cir. 1992)(same). Defendant notes that the pleas in this case were pursuant to Rule 11(e)(1)(C), Federal Rules of Criminal Procedure, which gives him the right to withdraw his pleas and proceed to trial if the court does not impose the sentence upon which the parties agreed. Defendant argues, therefore, that none of the sixteen documents listed in the Informational Order may be unsealed based on Intervenors' incorrect assertion that the pleas of guilty preclude the possibility of trial. Defendant concludes that until such time as the convictions are final, the court's sealing orders must remain in full force and effect.
In response, Intervenors argue initially that the Ninth Circuit does not believe Defendant's argument, because it denied Intervenors' petition for writ of mandate without prejudice on the ground that the government and Defendant had "entered into a plea agreement that moots the possibility of a death sentence." Intervenors argue that the Ninth Circuit is of the belief that this matter has been resolved by the plea agreement, and that there will be not trial.
Intervenors also argue that none of the cases cited by Defendant for the proposition that a conviction does not become final until entry of judgment and sentencing has any relevance here. Intervenors correctly argue, for example, that Teague v. Lane, addresses the retroactive application of new constitutional rules of criminal procedure. See Parr v. United States, 351 U.S. 513 (discussing finality for purposes of appeal); United States v. Douglas, 974 F.2d 1046 (conduct following guilty plea but prior to sentencing and entry of final judgment cannot be basis for conviction of being a felon in possession of a firearm).
The court rejects Intervenors' arguments. The court finds that the Ninth Circuit did not make a finding about the existence of a final judgment of conviction when it made the finding quoted by Intervenors. Further, the fact that the cases cited by Defendant involve different factual scenarios does not alter the courts' holdings on the definition of a final judgment in a criminal case. Accordingly, the court finds that it would be improper to unseal the Government's proffer and Defendant's response in this case until after the entry of final judgment.
Second, Defendant contends that Intervenors have not met the second prong of the Press-Enterprise test of showing that "public access plays a significant positive role in the functioning of the particularly process in question." Press Enterprise v. Superior Court, 478 U.S. 1, 8 (1986). Specifically, Defendant contends that the sole basis for Intervenors' previous motion to vacate the order sealing that proffer and the reply was an alleged interest of the public in understanding the prosecutorial decision to seek the death penalty. Defendant argues that because the Government has agreed to withdraw its Notice of Intent to Seek the Death Penalty, this public interest no longer exists.
In response to Intervenors' present argument that the prosecution's decision to agree to the plea agreements and this court's acceptance of the agreements are matters of legitimate public concern, Defendant argues that the Government' decision in entering into the plea agreements involves matters of prosecutorial discretion which are not even discoverable by the defense, "much less open to second guessing by the media." See Nichols v. Reno, 931 F. Supp. 748, 750 (D.Colo. 1996) (dismissing civil action alleging the Attorney General denied defendant access to information forming basis for decision to seek death penalty); Nichols v. Reno, 124 F.3d 1376, 1378 ("we adopt the reasoning set forth in Nichols v. Reno, 931 F. Supp. 748 (D.Colo. 1996)"). Compare United States v. McVeigh, 944 F. Supp. 1478, 1483 (D.Colo. 1996) (denying discovery of Department of Justice internal documents related to decision to seek death penalty).
In response to this argument, Intervenors argue that the cases cited by Defendant are ones in which efforts were made to force the prosecution to reveal its thought processes. Intervenors claim that in the present case, they do not seek to compel the prosecution to reveal anything of its thought process, other than as may be revealed by its public actions. Intervenors argue that the prosecution apparently realizes this, because it does not oppose release of the proffer. Intervenors stresses that this court previously held as follows:
The court further agrees with Intervenors that public access to the proffer would further the public's interest in understanding the criminal justice system. See Oregonian Publishing, 920 F.2d at 1465. Specifically the court finds that the public has an interest in knowing what facts underlie a case in which the Government has chosen to seek the death penalty and in knowing what facts the court relied upon in making its ruling denying Defendant's motion to strike the statutory aggravating factor based upon those facts. The court finds, therefore, that the second prong of the Press-Enterprise experience and logic test has been met.
Memorandum Opinion and Order re Motion to Vacate Order Sealing Government's Proffer re: "Heinous, Cruel and Depraved," 12:8-15. Intervenors argue that this public interest remains and is now supplemented by a legitimate public interest in the prosecutorial decision to accept a plea of guilty in exchange for a waiver of any effort to seek the death penalty. Intervenors conclude, therefore, that the public interest in the Proffer has increased, not decreased, as a consequence of Defendant's guilty plea, and the second prong of the Press-Enterprise test remains met.
The court agrees with Intervenors' arguments that the public's interest in obtaining information regarding the basis of the Government's decision to seek the death penalty continues to exist, and has actually increased, despite the entry of Defendant's guilty plea. The court therefore rejects Defendant's contention that Intervenors have not met the second prong of thePress-Enterprise test.
Third, Defendant contends that the sealing of the judicial record in this case serves the compelling and overriding interest of protecting Defendant's right to a fair trial in the state prosecution against him. Defendant correctly claims that this court has found that the temporary sealing of the Government' proffer and Defendant's response serves the compelling or overriding interest of protecting his due process right to a fair trial. Memorandum Opinion at 15. This court has also found that "the present unsealing of the Government's proffer would seriously prejudice Defendant's right to a fair trial because the court may later determine that the evidence contained therein is inadmissible" and that there is a substantial probability that unsealing the documents would "harm Defendant's right to a fair trial before an unbiased jury by disclosure of evidence which the court might find to be inadmissible at trial." Id. Further, the court has ruled that sealing the proffer and the response until Defendant has had an opportunity to be heard on a motion to suppress evidence will preserve his due process rights and Intervenors' disclosure rights. Id. at 16.
Defendant asserts that the State of California has filed a complaint charging him with three counts of murder and alleging five special circumstances, each of which, if found to be true, subject him to a state court death sentence. Defendant attaches a copy of the complaint to his opposition. Defendant argues that at the penalty phase of the state trial, evidence concerning the death of Ms. Armstrong will be introduced. Defendant argues that the unsealing of the proffer and response would seriously prejudice his right to a fair trial in state court, because that court may determine that the evidence in the documents is inadmissible. Defendant argues that the temporary sealing of the documents until the admissibility of his confession has been determined by the state court, or there is no possibility of a state court penalty trial, serves the compelling interest of protecting his due process right to a fair trial in the state capital case. Defendant concludes that given this court's previous ruling, it should order the temporary sealing of the proffer and response, subject to modification upon the resolution of a state motion to suppress or any other change in circumstances which eliminates his compelling due process interest.
In reply, Intervenors correctly point out that Defendant has cited no case from any jurisdiction in which a portion of a judicial file in one criminal prosecution was sealed even after the conclusion of the prosecution because of the possibility, or even a certainty, of the adjudication of other criminal charges in another court. Intervenors argue that under Defendant's reasoning, a person charged with a string of crimes in different jurisdictions would be entitled to have every record of every such case sealed until all charges against him have been tried in all jurisdictions. If this were the law, there would certainly be some case law addressing the issue. As Intervenors point out, Defendant has not cited any.
Intervenors further argue that even if Defendant's hypothetical scenario comes true, the Government's Proffer will not create a substantial probability of prejudice to his right to a fair trial. Intervenors claim that by the time the state prosecution seeks to admit the Government's proffer in this case, Defendant will already have been convicted by the same jury of three brutal rapes and murders. Intervenors argue that Defendant cannot argue that his right to a fair penalty phase trial in such circumstances will be jeopardized by the public disclosure years earlier of the Government's proffer. See Seattle Times v. U.S. Dist. Crt., 845 F.2d 1513, 1518 (9th Cir. 1988) (any prejudice is vitiated by the passage of time between disclosure and trial).
The court finds that Intervenors' argument about Defendant's lack of authority for contending that this court should act so as to preserve his right to a fair trial in state court is well-taken. The court cannot speculate about the potential effects the unsealing of documents in this case could have on the pending state prosecution, and without legal authority, this court cannot consider this argument as a basis for ordering the continued sealing of records in this case.
This court previously concluded that the temporary sealing of the Government's proffer and Defendant's response served the compelling or overriding interest of protecting Defendant's due process rights to a fair trial in this court. See Gannett Co. v. DePasquale, 443 U.S. 368, 378-79, 99 S.Ct. 2898, 2904-05 (1979). However, after the entry of a judgment of conviction, the need for a trial in this case will no longer exist. Accordingly, the court will order the unsealing of the Government's proffer and Defendant's response following the entry of final judgment in this case.
Fourth, Defendant contends that the documents numbers 10, 19, 23, 31 and 35, described as "payment vouchers" must not be unsealed. Defendant argues that assuming these documents do, as Intervenors assume, involve defense expenditures, they are not records to which the public and press has historically had access. Defendant relies upon United States v. Gonzales, 150 F.3d 1246, 1267 (10th Cir. 1998), in which the court held that the district court abused its discretion in ordering public release of materials related to appointment and compensation of counsel for indigent defendants under the Criminal Justice Act and backup documents for vouchers submitted in connection with services other than counsel. The court stated:
[T]he vouchers and related information are not trial documents in any accepted sense of that term. They do not go to the guilt, innocence or punishment of a defendant. They are not evidence of the crime. They are entirely ancillary to the trial.
The fact that the information is filed with the court, does not alter the situation. Not all documents filed with the court are considered "judicial documents." And, as indicated, the CJA documents are not directly related to the process of adjudication.150 F.3d at 1254-55 (footnotes and citations omitted). Therefore, the court held that there was no First Amendment right of access to CJA documents any more than there is a First Amendment right of access to administrative documents located in the executive branch. Id. at 1255. The court stated, "[p]ress access to information disclosed in the CIA process, most of which will not be introduced in the trial, will play a negative role in the criminal process." Id. at 1260.
In their reply, Intervenors contend although it is impossible to be sure from the limited description provided in the Informational Order, it appears that the documents under seal are payment vouchers which disclose the amount paid, but no attorney/client or work product information. Intervenors concede that there is justification for a court to disallow access to all detailed back-up documentation, particularly while the case is still pending, because detailed records could disclose defense strategy, as well as privileged material. Intervenors distinguish the present situation, however, in which the case is substantially over and all that is sought is the vouchers, not the back-up documentation. Intervenors conclude that the vouchers should be made public.
As Intervenors note, in Gonzales, the Tenth Circuit found that the district court properly exercised its discretion in deciding to release the total amount spent on counsel and the total amount spent overall as to each defendant at the end of that defendant's sentencing hearing. Gonzales, 150 F.3d at 1266. In the present case, the court finds that documents numbers 10, 19, 23, 31, and 35 are payment vouchers which contain no information which comes under the attorney/client privilege or could be considered attorney work product. Accordingly, the court will order these payment vouchers unsealed with the sole redaction of counsel's taxpayer identification number.
Fifth, Defendant addresses disclosure of documents numbers 37 and 38, concerning an ex parte application for a subpoena duces tecum, and numbers 45 to 47, concerning an ex parte application for transportation for the purpose of medical testing. Defendant contends that these are not pretrial documents to which the public and press have historically had access. Defendant again relies on Gonzales, discussed above, and language regarding the release of information related to the appointment and compensation of counsel. The court stated that the release of such documents was improper because, "allowing disclosure of the backup documentation to the attorneys' request for compensation may `subject innocent people who have been interviewed or investigated by Defendants to public speculation about their involvement in the crime." Id. at 1265. Release of such materials would "intrude on the privacy interests of the Defendant and will reveal privileged information provided by the Defendants . . . It may also put the government `in a position to investigate and bring new charges against [defendants who inculpate themselves in uncharged criminal conduct in order to obtain an adequate defense]' . . . These privacy interests do not cease at the conclusion of the litigation." Id. at 1266. Further, the court found that the unsealing of these documents "would reveal information protected by the attorney-client privilege and by the attorney work-product doctrine." The court concluded that "[c]ertainly, then, the privilege does not terminate when the Defendants' trials are over." Id.
Defendant argues that the reasoning in Gonzales applies in this case, because he was required to disclose to the court privileged, work product information relating to his reasons both for seeking a subpoena duces tecum and for seeking transportation for medical testing. Defendant concludes that these materials may not be unsealed.
In reply, Intervenors contend that Defendant has not carried his burden of justifying the continued sealing of these records. Intervenors argue that to the extent that Defendant's applications present evidence or argument on which the court relied in making its decisions, those applications constitute judicial records, and are presumptively open to the public. Intervenors conclude that in light of Defendant's failure to demonstrate a compelling reason for sealing these records, they should be open to the public.
The court finds that the release in an unredacted state of documents numbers 37 and 38 concerning an ex parte application for a subpoena duces tecum has a high probability of intruding on the privacy interests of the innocent third parties named in the application. The release of documents having such an intrusive effective was held to be improper in Gonzales, and the court finds that it has a responsibility to protect such innocent parties from unnecessary harassment and public speculation. Further, the court finds that such release could intrude upon the physician patient privilege. The court finds, therefore, that it would be improper to release these documents in an unredacted form. Accordingly, the court will order the release of documents numbers 37 and 38 only with the names of the third parties redacted.
In regard to documents numbers 45, 46 and 47 concerning an ex parte application for transportation for the purpose of medical testing, the court finds that the release of these documents in an unredacted state would violate both the attorney client privilege and the work product privilege. Further, the court finds that the release of these documents in an unredacted state would violate the physician patient privilege. Accordingly, the court will order the release of these documents only with the names of all third parties and the attached declaration redacted.
Sixth, Defendant addresses disclosure of documents concerning an ex parte motion for an order permitting disclosure of grand jury information filed, and then withdrawn, by the Government. The court's Informational Order reveals that this was a request pursuant to Rule 6(e)(3)(C)(iv) of the Federal Rules of Criminal Procedure. In opposition, Defendant contends that the filing and withdrawing of a request for disclosure by the Government may not defeat the general rule of secrecy regarding grand jury proceedings set forth in Rule 6(e)(2). Defendant argues that these are documents to which the public and press have historically not had access. Defendant concludes, therefore, that Intervenors may not have access to them.
In their reply, Intervenors argue that there is a fundamental difference between grand jury proceedings and motions made regarding them. Intervenors agree that the proceedings may be secret, and subject to disclosure only under limited circumstances. Intervenors argue, however, that discussions about whether grand jury proceedings should be disclosed are not secret. Intervenors argue that Defendant has not carried his burden of demonstrating that this portion of the judicial record should be sealed. Intervenors conclude that any portion of the Government's ex parte motion that does not constitute grand jury proceedings should be unsealed.
The court agrees with Intervenors' argument and finds no reason why the documents involving the Government's ex parte motion for order permitting disclosure of grand jury information should be sealed. Therefore, the court will order that documents numbers 29, 30, 32 and 33 be unsealed.
ORDER
In light of the foregoing, it is HEREBY ORDERED that:
1) Documents numbers 63 and 68 shall be UNSEALED following sentencing and the entry of final judgment in this case;
2) Documents 10, 19, 23, 31, and 35 shall be UNSEALED immediately with sole redaction of the elimination of counsel's social security number on each document;
3) Documents 37 and 38 shall be UNSEALED immediately with the names of all third parties redacted;
4) Documents 45, 46 and 47 shall be UNSEALED immediately with the names of all third parties and the attached declaration redacted;
5) Documents 29, 30, 32, and 33 shall be UNSEALED immediately.