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In re Application of Herald Co.

decided: April 24, 1984.


Appeal from an order of the District Court for the Northern District of New York (Howard G. Munson, Chief Judge) ordering the closing of the courtroom during the pretrial hearing on a motion to suppress.

Newman and Winter, Circuit Judges, and MacMahon, District Judge.*fn* MacMahon, District Judge, dissenting.

Author: Newman

NEWMAN, Circuit Judge:

This appeal requires consideration of the substantive standard to be applied and the procedure to be followed in adjudicating a defendant's request to exclude the public from a pretrial hearing -- in this case a hearing on a motion to suppress evidence. The Herald Company, publisher of the Syracuse Post Standard, appeals from the October 13 and November 9, 1983, orders of the District Court for the Northern District of New York (Howard G. Munson, Chief Judge) ordering the closing of the courtroom during the pretrial hearing of a motion to suppress made by defendant Michael Klepfer. Klepfer was indicated on March 17, 1983, on charges of making false statements to Government investigators and thereby obstructing justice, in violation of 18 U.S.C. ยงยง 1001, 1503 (1982). We remand for further consideration by the District Court.


The charges against Klepfer stem from an investigation begun in December 1980 by the Federal Bureau of Investigation into the background and qualifications of Raymond J. Donovan, President Reagon's nominee for Secretary of Labor. Thereafter, a Special Prosecutor was appointed to investigate allegations that Donovan, prior to his appointment as Secretary, had committed violations of federal law. On June 11, 1982, a witness in the investigation conducted by the Special Prosecutor was murdered. The indictment in this case charged that Klepfer had made false statements concerning Donovan to both the FBI and the Special Prosecutor. It also charged that he had falsely stated that the witness was murdered to prevent his revelation of an alleged scheme whereby a $20 million campaign contribution would be made by the International Brotherhood of Teamsters in return for Donovan's recommendation of presidential pardons for Russell Bufalino, a reputed organized crime figure, and Anthony Provenzano, a former Teamster official.

On April 28, 1983, Klepfer filed several motions, including a motion to suppress all oral statements made to federal investigators between January 21, 1981, and March 17, 1983, on the ground that the statements were obtained in violation of his Fifth and Sixth Amendment rights. The motions were heard in open court and denied in a decision filed July 29, 1983. The motion to suppress was denied on the ground that some of the statements were the ones alleged in the indictment to be false and, as to the others, no facts had been alleged to show that the statements had been given involuntarily, in a custodial setting, or after adversarial proceedings had begun. Subsequently, Chief Judge Manson granted Klepfer's motion to reconsider the denial of the motion to suppress, vacated that portion of the July 29 ruling that had denied the motion, and granted leave to file a supplemental suppression motion.

On September 23, 1983, Klepfer filed under seal his renewed motion to suppress and subsequently filed, also under seal, a memorandum in support of the suppression motion, a motion to exclude the public from the hearing on the suppression motion, and a brief in support of the closure motion. These matters were considered by the District Court on October 13, 1983, initially in open court. The Government stated its opposition to closing the courtroom:

The government does not feel that there is any greater threat posed by the continuance of an open hearing in a case that's already been made public where there's been a public indictment, there ha[ve] been newspaper articles and conclusions drawn from the articles and the public proceedings so far . . . .

The District Judge inquired if anyone in the courtroom wished to be heard on the issue of closure. A reporter for the Post Standard stated his objection and said that the publisher had told him on the telephone that a lawyer for the newspaper was on his way to the courthouse. After a brief recess, the Court entertained argument from counsel for the newspaper. Not having access to the sealed materials relied on by the defendant for the closure motion, counsel argued generally that closure of criminal proceedings was improper in the absence of specific findings justifying such action and consideration of alternative solutions.

Chief Judge Munson acknowledged that counsel for the newspaper did not know the basis for the closure request, but explained that "if I tell you what the basis is, I might as well not close it." The District Judge granted the defendant's request for closure with this explanation:

I believe in this case the interest of justice, as well as due process rights of the defendant, will be best served by the closure of these proceedings. I think all of us know that in the Gannett Company case [ Gannett Co. v. DePasquale, 443 U.S. 368, 99 S. Ct. 2898, 61 L. Ed. 2d 608 (1979)] the United States Supreme Court recognized that trial judges have an affirmative obligation to minimize the effects of what might be extremely prejudicial pretrial publicity. In this case the potential for harm to this defendant, as well as the tainting of any future proceedings by pretrial disclosures, I think outweighs the right of the public at this time and the press to attend this hearing.

The hearing on the motion to suppress was then conducted in a closed courtroom for four days. On November 9, 1983, the District Judge entered an order confirming that the transcript of the hearing and all papers submitted by the prosecution and defense in connection with the hearing remain under seal, denying The Herald Company's request for access to the transcript and such papers, and denying The Herald Company's request for prior notice of any further actions to exclude the public from proceedings in the case. The Herald Company appeals from both the October 13 and November 9 orders.


Though not challenged by the parties, we consider initially our appellate jurisdiction. The District Court in effect permitted The Herald Company to intervene in the pending criminal case, at least for the limited purpose of objecting to closure of the courtroom. We agree with the Third Circuit that an order of closure is a final decision as to an intervenor within the "collateral order" doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 93 L. Ed. 1528, 69 S. Ct. 1221 (1949). United States v. Cianfrani, 573 F.2d 835, 845 (3d Cir. 1978); cf. Belo Broadcasting Corp. v. Clark, 654 F.2d 423, 425-26 (5th Cir. 1981) (order denying access to videotape evidence appealable); In re Application of National Broadcasting Co. (United States v. Myers), 635 F.2d 945, 949 n.2 (2d Cir. 1980) (order granting access to videotape evidence appealable); United States v. Gurney, 558 F.2d 1202, 1206-07 (5th Cir. 1977) (order denying access to documentary evidence appealable), cert. denied, 435 U.S. 968, 98 S. Ct. 1606, 56 L. Ed. 2d 59 (1978); see generally United States v. Chagra, 701 F.2d 354, 358-60 (5th Cir. 1983) (collecting cases on appealability issue); but see United States v. Brooklier, 685 F.2d 1162, 1165-66 (9th Cir. 1982) (closure order not appealable by non-party, but order reviewed on petition for mandamus).

Turning to the merits, we note at the outset that we face no issue here concerning the authority of a trial court to prevent representatives of the press from publishing information in their possession. See Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 49 L. Ed. 2d 683, 96 S. Ct. 2791 (1976). This is not a case of prior restraint; the issue concerns access to information. More precisely, the issue is whether and to what extent the First Amendment limits a trial judge's authority to exclude the public from a pretrial suppression hearing. In resolving that issue, our task is to extract, as best we can, a governing principle from the four recent decisions of the Supreme Court on the subject of courtroom closure: Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 104 S. Ct. 819, 78 L. Ed. 2d 629 (1984); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 73 L. Ed. 2d 248, 102 S. Ct. 2613 (1982); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 65 L. Ed. 2d 973, 100 S. Ct. 2814 (1980); and Gannett Co. v. DePasquale, 443 U.S. 368, 99 S. Ct. 2898, 61 L. Ed. 2d 608 (1979). Though no one of these cases resolves our precise issue, various opinions in all of them provide a substantial basis for decision.

The Court's initial encounter with a closure order provided scant encouragement for a First Amendment claim. Justice Stewart's opinion for the five-member majority in Gannett was willing to assume that the First Amendment might guarantee access to a suppression hearing in some circumstances, but concluded that whatever protection might be afforded was not impaired by the order being reviewed. 443 U.S. at 392-93. However, one member of that majority, Justice Rehnquist, pointedly disassociated himself from any support for First Amendment protection in this context. He thought it "clear that this Court repeatedly has held that there is no First Amendment right of access in the public or the press to judicial or other governmental proceedings." Id. at 404 (citations omitted). Moreover, Justice Blackmun, writing for himself and Justices Brennan, White, and Marshall, in partial dissent, expressed the view that the Court "heretofore has not found, and does not today find, any First Amendment right of access to judicial or other governmental proceedings." Id. at 411 (citations omitted). Thus, in Gannett a majority of the Court understood the law at that time to preclude any First Amendment objection to a closure order.*fn1 Only Justice Powell expressed the view that the excluded reporter "had an interest protected by the First and Fourteenth Amendments in being present at the pretrial suppression hearing," id. at 397 (footnote omitted), and he found no unconstitutional encroachment upon that interest under the circumstances of the case.

The very next year, in Richmond Newspapers, seven members of the Court agreed that the First Amendment assures some right of access to some governmental proceedings and held that closure of a courtroom during a criminal trial, under the circumstances presented, abridged that First Amendment right. 448 U.S. at 577 (Burger, C.J., with whom White and Stevens, JJ., join); id. at 598 (Brennan, J., with whom Marshall, J., joins, concurring in the judgment); id. at 599 (Stewart, J., concurring in the judgment); id. at 604 (Blackmun, J., concurring in the judgment). Only Justice Rehnquist found no First Amendment right of access to a trial, at least no right that would preclude a closure ordered by a state court. Id. at 606, Justice Powell did not participate. Id. at 581.

The seven Justices supporting some First Amendment right of access differed, however, in the rationale, and the difference bears significantly upon our task of determining whether the right of access to a trial applies to a pretrial suppression hearing. Though all of the Justices in the Richmond Newspapers majority relied on the historical argument that trials had traditionally been open to the public, four of them also relied upon a functional argument -- a First Amendment right of access to governmental activities arises whenever public observation serves important public purposes. Id. at 584 (Stevens, J., concurring: "the First Amendment protects the public and the press from abridgements of their rights of access to information about the operation of their government, including the Judicial Branch"); id. at 589 (Brennan, J., with whom Marshall, J., joins, concurring in the judgment: "what is crucial in individual cases is whether access to a particular government process is important in terms of that very process"); id. at 604 (Blackmun, J., concurring in the judgment: "the public has an intense need and a deserved right to know about the administration of justice in general"). Since Justice Powell's opinion in Gannett had previously relied on the functional argument, 443 U.S. at 397 ("the importance of the public's having accurate information concerning the operation of its criminal justice system"), it now appeared that a five-member majority favored some form of a right of access to those government functions of significant interest to the public.

In Globe Newspapers a five-member majority appeared to lend further support to the functional argument for a First Amendment right of access. 457 U.S. at 604-05, 606 (Brennan, J., with whom White, Marshall, Blackmun, and Powell, JJ., join: "to the extent that the First Amendment embraces a right of access to criminal trials, it is to ensure that this constitutionally protected 'discussion of governmental affairs' is an informed one (quoting Mills v. Alabama, 384 U.S. 214, 218, 16 L. Ed. 2d 484, 86 S. Ct. 1434 (1966)); "the right of access to criminal trials plays a particularly significant role in the functioning of the judicial process and the government as a whole"). Justice Brennan's opinion also emphasized the historical argument. 457 U.S. at 605. Justice O'Connor, who had replaced Justice Stewart, supported a right of access and noted the reliance in Richmond Newspapers on both "our long history of open criminal trials and the special value, for both public and accused, of that openness." Id. at 611. There now appeared to be seven Justices placing at least some reliance on the functional argument (Justices Brennan, White, Marshall, Blackmun, Powell, Stevens,*fn2 and O'Connor).*fn ...

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