The opinion of the court was delivered by: COSTANTINO
MEMORANDUM OF DECISION AND ORDER
This is a motion by the Government to place under seal for a sixty (60) day period audio tapes admitted into evidence at the sentencing hearing of the defendant, Alfred Carpentier ("Carpentier"). Carpentier has not opposed the motion, but both The New York Times Company, publisher of the New York Times ("the Times"), and the New York News, Inc., publisher of the New York Daily News ("the News"), have opposed the motion on First Amendment grounds and on the basis of the common law right of access to information admitted into evidence at a public hearing. For reasons set forth below, the Government's motion is denied.
The defendant Carpentier along with his co-defendant Alexander Alexandro ("Alexandro") was indicted and found guilty of certain crimes committed in the course of a covert investigation conducted by the Federal Bureau of Investigation ("F.B.I."), commonly known as "Abscam." The main characters in all of the Abscam investigations were Melvin Weinberg ("Weinberg"), a Government informant, and Special Agent Anthony Amoroso of the F.B.I., who in his undercover capacity was known as Tony DeVito ("DeVito").
The evidence at trial showed that Carpentier first met Weinberg in December of 1978, and that the two continued to meet quite frequently in the following months to discuss and negotiate various business transactions. During one of those meetings, Carpentier mentioned that in the past he had dealt with corrupt United States Immigration and Nationalization Service ("INS") inspectors, and that they could no doubt be of some assistance to Weinberg's and DeVito's employer-the fictitious Arab Sheik who controlled Abdul Enterprises, Ltd., a sham Middle Eastern company ostensibly interested in investing money in the United States.
In a subsequent meeting, Weinberg and DeVito pursued Carpentier's offer. They told Carpentier that their boss, the "Sheik", wanted to assist a friend in obtaining permanent residence status in the United States for the friend's son. The friend and the son were likewise fictitious.
On May 30, 1979, Carpentier met with Weinberg and DeVito to set up the meeting with the INS agent, Alexandro. On May 31, 1979, Carpentier attended a meeting with Alexandro, Weinberg and DeVito to plan the deal. During the following months, the details of a fraudulent immigration transaction were worked out and money was exchanged between the defendants and DeVito and Weinberg. The majority of these transactions were taped with audio and/or video recording devices.
On October 31, 1980, the defendant Carpentier was convicted after a jury trial of conspiracy to commit bribery, 18 U.S.C. § 371 and of conflict of interest. 18 U.S.C. §§ 202, 203. In the conspiracy count, Carpentier was found guilty of conspiring with Alexandro to receive money in return for Alexandro's official misconduct. In the latter, Carpentier was found guilty of aiding and abetting Alexandro in performing acts of official misconduct. As for Alexandro, he was convicted on the same date of the substantive bribery count, 18 U.S.C. § 201(c), the substantive conflict of interest count, 18 U.S.C. § 203, and the conspiracy count, 18 U.S.C. § 371.
The sentencing of both Carpentier and Alexandro was delayed for several months at the request of the defendants to permit the defendants and the court to follow the "due process" hearings then being conducted before the Hon. George C. Pratt of this court. Those hearings, held upon the motion of other Abscam defendants, focused on alleged improprieties committed during the entire Abscam investigation. Judge Pratt in United States v. Myers, et al., -- - F. Supp. -- (E.D.N.Y.1981) concluded that there were no such due process violations. Since that decision, neither defendant in this action has pursued any relief on the basis of the due process violations,
and sentencing for both defendants was scheduled for September 22, 1981.
On that date, Alexandro was sentenced to a four-year term of incarceration, but Carpentier's sentence was again adjourned to enable the Government to obtain authorization from the Attorney General of the United States to move to close Carpentier's sentencing hearing pursuant to 28 C.F.R. § 50.9. After the sentence was adjourned, the Government furnished the court with approximately six-to-eight hours of tapes which the Government was to admit in evidence at the sentencing hearing. With the understanding that the hearing was to be closed, the court agreed to listen to the tapes in camera to expedite the sentencing hearing.
After another adjournment at the Government's request and after some discussion in Washington, D.C. between the press and the Justice Department, the Government informed the press and the court on November 13, 1981 that it would not seek to close the hearing. The sentencing hearing, also known as a Fatico hearing, began in open court on November 16, 1981. See United States v. Fatico, 579 F.2d 707 (2d Cir. 1978), remanded, 458 F. Supp. 388 (E.D.N.Y.), aff'd, 603 F.2d 1053 (2d Cir. 1979),
cert. denied, 444 U.S. 1073, 100 S. Ct. 1018, 62 L. Ed. 2d 755 (1980).
Before the Fatico hearing again commenced on November 19, 1981, the defendant made a tactical decision not to play the tapes and to bypass examining any witnesses concerning the content of those tapes. The Government then moved to admit the tapes in evidence without playing the tapes in open court. Although the Government had been willing to play the tapes if the defendant sought to challenge their content, it altered that position once it learned that Carpentier had decided to limit his rebuttal case. In short, the Government then asked that the tapes, already admitted in evidence, be placed under seal for sixty days as their disclosure, according to the Government, would jeopardize an ongoing grand jury investigation. At this point, the Times and the News appeared before the court in opposition to the motion.
The issue before this court is whether to allow the public and press access to tapes admitted into evidence without seal by the Government during a public sentencing hearing. The Supreme Court has enunciated the principle that "(what) transpires in the courtroom is public property," Craig v. Harney, 331 U.S. 367, 374, 67 S. Ct. 1249, 1254, 91 L. Ed. 1546 (1947). While "access to governmental information is subject to a degree of restraint dictated by the nature of the information and countervailing interests in security or confidentiality," Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 586, 100 S. Ct. 2814, 2832, 65 L. Ed. 2d 973 (1980) (Brennan, J., concurring); see, e.g., Houchins v. KQED, Inc., 438 U.S. 1, 98 S. Ct. 2588, 57 L. Ed. 2d 553 (1978), "(t)he commission of crime, prosecutions resulting from it, and judicial proceedings arising from the prosecutions ... are ... events of legitimate concern to the public and ... fall within the responsibility of the press to report the operations of government." Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 492, 95 S. Ct. 1029, 1044, 43 L. Ed. 2d 328 (1975). Accordingly, the court concludes that, on the basis of the growing trend in the Supreme Court, see Richmond ...