United States v. Chin , 913 F.3d 251 ( 2019 )

United States Court of Appeals
For the First Circuit
No. 17-2048
UNITED STATES OF AMERICA,
v.
GLENN A. CHIN,
Defendant.
TRUSTEES OF BOSTON UNIVERSITY,
OWNER OF THE RADIO STATION WBUR (WBUR),
Intervenor, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Barron and Selya, Circuit Judges,
and Katzmann, Judge.*
Jeffrey J. Pyle, with whom Prince Lobel Tye LLP was on brief,
for appellant.
Gregory Dubinsky, with whom Evan H. Stein and Holwell, Shuster
& Goldberg LLP were on brief, for Court-appointed amicus curiae in
support of affirmance.
Nashwa Gewaily, New England First Amendment Coalition,
Sigmund D. Schutz, and Preti, Flaherty, Beliveau & Pachios, LLP,
on brief as amici curiae in support of appellant.
* Of the United States Court of International Trade, sitting
by designation.
January 18, 2019
BARRON, Circuit Judge. This case concerns an appeal by
the Trustees of Boston University, as owners of WBUR, which is a
public radio station in Boston, Massachusetts. We will refer to
the appellant by the radio station's name, WBUR.
The issue that we must decide arises from WBUR's motion
in the fall of 2017 to intervene in a then still-ongoing criminal
trial in the United States District Court for the District of
Massachusetts. In that motion, WBUR also requested that the
District Court unseal the names and addresses of the jurors in the
criminal case and provide that information to WBUR "as soon as
possible" after the announcement of the jury's verdict.
The District Court granted the motion to intervene but
otherwise denied in substantial part the motion to unseal the
requested information. We now vacate and remand.
I.
WBUR filed this motion in the criminal case against New
England Compounding Center ("NECC") supervisory pharmacist Glenn
Chin. He had been charged with committing mail fraud and violating
the Racketeer Influenced and Corrupt Organizations Act ("RICO"),
18 U.S.C. §§ 1961–1968, based on, among other things, twenty-five
predicate acts of second-degree murder, in connection with a
nationwide distribution of contaminated medications that caused a
fatal outbreak of fungal meningitis.
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Chin's trial began in federal district court in Boston
on September 19, 2017. It ended a little more than a month later,
on October 25, 2017, when the jury found Chin guilty of mail fraud
and lesser predicate offenses under RICO but not guilty of the
twenty-five predicate acts of second-degree murder.
A week before the trial ended, on October 18, 2017, WBUR
filed its motion both to intervene in the criminal case and to
obtain "as soon as possible after the verdict is announced" the
names and addresses of the then-deliberating jurors. On October
27, 2017 -- just two days after the jury had returned its verdict
-- the District Court issued an order allowing intervention in the
criminal case by WBUR but denying, without prejudice, its motion
regarding the disclosure of juror names and addresses.
The District Court stated in that order that it would
"release" juror names and hometowns, but not addresses, and that
it would do so only after Chin's sentencing, which was scheduled
for January 30, 2018.1 The District Court did note in its order,
1 One of Chin's co-defendants was Barry Cadden, the owner of
NECC, whose case had gone to trial in federal district court in
Boston six months earlier. At Cadden's trial, the jury returned
a verdict sheet suggesting that the jurors had not voted
unanimously to acquit Cadden of second-degree murder, even though
the not-guilty verdict required unanimity. WBUR filed a motion
for immediate access to juror names and addresses, and the District
Court ruled that it would release a list of each juror's name and
hometown, though not each juror's address, only after sentencing,
which was to occur three months later. WBUR, though unable to
identify every juror even after receiving the jurors' names and
hometowns, ultimately interviewed two jurors from the Cadden trial
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however, that it would "consider an earlier release of the juror
list upon submission by [WBUR] of an appropriate protective order
that is . . . crafted to insure against any unnecessary
dissemination of the jurors' personal identification in the news
media or over the internet (without the juror's express assent)."
The District Court based this possible condition on
release on a protective order requirement that Judge Young had
imposed one week earlier in a similar ruling regarding WBUR's
request for disclosure of juror names and addresses in another
case in the District of Massachusetts: United States v. Wright,
No. 15-cr-10153-WGY (D. Mass. Oct. 20, 2017), ECF No. 357. Judge
Young withdrew the protective order requirement in Wright on
November 3, 2017, however, after WBUR challenged that requirement
on the grounds that it would be impractical and perhaps
unconstitutional.
A little less than two weeks later, on November 16, 2017,
WBUR appealed from the District Court's order denying its request
in Chin. The next day, the District Court issued an "Amended Order
on Motion of [WBUR] to Unseal Juror Names and Addresses," which,
just as Judge Young had done in Wright, withdrew the protective
order requirement. In the amended order, the District Court
reiterated that it would "release" a list of the Chin jurors' names
and aired a report stating that those two jurors did not understand
that not-guilty verdicts required unanimity.
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and hometowns, but not addresses, and that it would do so only
after sentencing.
In accord with the initial order, on January 31, 2018,
the day after the sentencing proceedings in Chin's case ended, the
District Court issued an unsealed order containing a list of the
jurors' names and their hometowns, but not their addresses.
Because neither the government nor Chin opposes WBUR's motion on
appeal, we ordered the appointment of amicus counsel ("Court-
appointed amicus") to represent the position reflected in the
District Court's order denying WBUR's motion in substantial part,
a task that the amicus has ably performed.2
II.
We begin by addressing our jurisdiction to hear this
appeal, which turns out to be a task that is not without its
complexities. The most prominent jurisdictional question that we
confront concerns the possibility that this appeal has been mooted
by the District Court's granting of partial relief to WBUR and the
fact that Chin's sentencing has already occurred. But, before we
get to that jurisdictional question, we address two others, the
first of which relates to the appellant's status as an intervenor.
We stated in In re Globe Newspaper Co., 920 F.2d 88, 90
(1st Cir. 1990), that "the right of a non-party to intervene in a
2 We also acknowledge the helpful amicus brief filed by the
New England First Amendment Coalition, et al.
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criminal proceeding is doubtful." But, we nonetheless concluded
-- even without finding that the appellant there could intervene
-- that we had jurisdiction over the appeal under the All Writs
Act, 28 U.S.C. § 1651. See In re Providence Journal Co., Inc.,
293 F.3d 1, 9 (1st Cir. 2002) (explaining that the All Writs Act
gives "[a] federal court of appeals . . . the power to treat an
attempted appeal from an unappealable (or possibly unappealable)
order as a petition for a writ of mandamus" (quoting United States
v. Horn, 29 F.3d 754, 769 (1st Cir. 1994))).
Here, however, the District Court did grant WBUR's
motion to intervene. And, because that "legal decision" to grant
WBUR's motion remained "unchallenged in [this] appeal despite the
existence of ample opportunity to [challenge it]," it is now "law
of the case for future stages of the same litigation" and therefore
"should continue to govern the same issues." United States v.
Matthews, 643 F.3d 9, 12 (1st Cir. 2011) (citations omitted).
Thus, as an intervenor, WBUR may appeal the District Court's order
denying its request for the disclosure of juror names and
addresses, which WBUR filed before sentencing and thus before the
matter had concluded -- assuming, that is, the appeal is not moot.
See United States v. Blagojevich, 612 F.3d 558, 560 (7th Cir. 2010)
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(applying the collateral order doctrine in finding jurisdiction
over an appeal by an intervenor in a similar case).3
The next jurisdictional wrinkle that we must iron out
concerns the timing of the appeal relative to the issuance of the
District Court's amended order in this case. Neither WBUR nor
Court-appointed amicus makes anything of the fact that the District
Court issued its amended order the day after WBUR filed its notice
of appeal. But, the general rule is that "[t]he filing of a notice
of appeal is an event of jurisdictional significance -- it confers
jurisdiction on the court of appeals and divests the district court
of its control over those aspects of the case involved in the
appeal." Griggs v. Provident Consumer Discount Co., 459 U.S. 56,
58 (1982).
Nevertheless, "this circuit and others have recognized
limited exceptions to this judge-made rule." United States v.
Torres-Oliveras, 583 F.3d 37, 44 (1st Cir. 2009) (citing 16A
Charles A. Wright, et al., Federal Practice and Procedure § 3949.1
(4th ed. 2009); United States v. Ortega, 859 F.2d 327, 334–35 (5th
Cir. 1988)). And, arguably, the District Court's amended order
here falls within one of the recognized exceptions because it does
3 Nor do we think that the fact that the motion to unseal the
juror names and addresses was denied "without prejudice" is of
jurisdictional significance, under the collateral order doctrine,
given that the request was for the release of the jurors'
identifying information "as soon as possible" post-verdict.
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not "alter the substance of the decision" to release juror names
and hometowns after sentencing. See Wright, et al. § 3949.1.
In any event, we will treat the District Court's November
17, 2017 order as though it were an indicative ruling regarding
the withdrawal of the protective order requirement. Cf. United
States v. Maldonado-Rios, 790 F.3d 62, 65 (1st Cir. 2015) (per
curiam) (treating a sentencing court's grant of a motion filed
during the pendency of appeal as an indicative ruling under Federal
Rule of Appellate Procedure 12.1). And, even if we consider on
appeal only the District Court's October 27, 2017 order, our
analysis of the merits is not affected. See Torres-Oliveras, 583
F.3d at 44.
We come, then, to the main potential jurisdictional
obstacle to our reaching the merits of this appeal. Court-
appointed amicus contends that the appeal is moot in its entirety,
and thus no longer a live case or controversy requiring resolution,
because the District Court released the names and hometowns of the
Chin jurors on January 31, 2018.
"The burden of establishing mootness rests with the
party invoking the doctrine." ACLU of Mass. v. U.S. Conference of
Catholic Bishops, 705 F.3d 44, 52 (1st Cir. 2013). Because no
factual findings bear on the matter, we decide the legal issue de
novo. See id.
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As to WBUR's appeal of the denial of its request for the
jurors' addresses, Court-appointed amicus argues that the access
to names and hometowns that the District Court provided is
sufficient for WBUR to identify the jurors and thus renders any
opinion ordering the release of juror addresses "merely advisory."
See Mangual v. Rotger-Sabat, 317 F.3d 45, 60 (1st Cir. 2003) ("If
events have transpired to render a court opinion merely advisory,
Article III considerations require dismissal of the case.").
Accordingly, Court-appointed amicus contends that this aspect of
WBUR's appeal is moot.
But, the District Court has not unsealed some of the
information that WBUR sought in its motion -- namely, the addresses
of the jurors. And, it is undisputed that WBUR has not been able
to contact all twelve jurors in the Chin trial, even though the
District Court provided WBUR with access to their names and
hometowns. Consequently, the unsealing of the requested
addresses, even at this point, would provide "effectual relief" to
WBUR with respect to its appeal of the District Court's order
denying its motion requesting the information that thus far has
been withheld. ACLU of Mass., 705 F.3d at 52. This aspect of the
appeal, therefore, is not moot.
The mootness question is not quite so easily resolved
with respect to WBUR's appeal of the District Court's denial of
the request to release the jurors' identifying information post-
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verdict, rather than post-sentencing. The sentencing occurred
nearly a year ago. There is no way to turn back the clock. Thus,
there is some force to the suggestion of mootness by Court-
appointed amicus as to the aspect of WBUR's appeal that concerns
the timing of the release of the requested information.
Nevertheless, in contending that this aspect of its
appeal also is not moot, WBUR relies on an exception to the
mootness doctrine that exists for a controversy that is "capable
of repetition, yet evading review." Kingdomware Technologies,
Inc. v. United States, 136 S. Ct. 1969, 1976 (2016) (quoting
Spencer v. Kemna, 523 U.S. 1, 17 (1998)). In particular, WBUR
argues that, although sentencing has already occurred, WBUR likely
"will again be subjected to the alleged illegality" because that
"alleged illegality" is capable of repetition and would continue
to evade review. Murphy v. Hunt, 455 U.S. 478, 483 (1982) (per
curiam); ACLU of Mass., 705 F.3d at 57 (emphasis omitted) (quoting
City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983)).
To qualify for this exception to the mootness doctrine,
WBUR bears the burden of showing that "(1) the challenged action
was in its duration too short to be fully litigated prior to its
cessation or expiration, and (2) there was a reasonable expectation
that the same complaining party would be subjected to the same
action again." Gulf of Maine Fisherman's All. v. Daley, 292 F.3d
84, 89 (1st Cir. 2002) (quoting Weinstein v. Bradford, 423 U.S.
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147, 149 (1975)). We conclude that WBUR has made the required
showing.
About three months elapsed between the verdict and
sentencing in Chin. That period of time is "too short" to complete
litigation, given that the appeal process often takes longer than
a few months. Id. But, that fact should not preclude WBUR's
challenge to a delay in the disclosure of the requested information
that, though shorter than the time frame for most litigation, was
still significant enough to affect WBUR's reporting. WBUR has
also shown that it frequently requests that the District of
Massachusetts unseal jury lists as soon as possible following a
verdict in order to obtain information that would enable it to
report on cases in the District. And, WBUR has shown that, in a
number of instances, judges in the District have waited until after
sentencing to release the requested juror information.
Therefore, we conclude that WBUR has met its burden under
the exception to the mootness doctrine on which it relies in asking
us to consider its appeal with respect to the timing issue. And
so, satisfied that WBUR's appeal is not moot, and having disposed
of the other possible jurisdictional issues that might have cut
short our consideration of this appeal, we now turn to the merits
of the case.
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III.
In considering the merits, we direct our attention
chiefly to one of our prior precedents: In re Globe Newspaper Co.,
920 F.2d 88 (1st Cir. 1990). We do so because WBUR's appeal is
premised in part on a contention about what that precedent holds.
WBUR stated in its motion requesting the disclosure of
the juror information -- just as it now asserts on appeal -- that,
"under controlling precedent, the identities of the jurors 'must
be made public' after a verdict is rendered, unless the Court makes
'particularized findings reasonably justifying nondisclosure.'"
The assertedly "controlling precedent" that WBUR identifies is In
re Globe. Because the interpretation of that precedent presents
a purely legal question, our review of whether In re Globe controls
the outcome here -- as WBUR contends that it does -- is de novo.
See United States v. Mayendía-Blanco, 905 F.3d 26, 34 (1st Cir.
2018). If we conclude that In re Globe does control here, then we
must consider Court-appointed amicus's alternative argument that
we should revisit that holding in light of changes in technology
over the past thirty years since In re Globe was decided.
A.
WBUR is right that, insofar as In re Globe requires a
district court in a particular case to disclose juror names and
addresses post-trial, but pre-sentencing, In re Globe allows for
an exception to that requirement only if the district court makes
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"particularized findings reasonably justifying non-disclosure."
See In re Globe, 920 F.2d at 98. WBUR is also right that such
"finding[s] of exceptional circumstances [must be] peculiar to the
case." Id. at 97. Moreover, In re Globe provides examples of
"[s]uch circumstances," and they include "a credible threat of
jury tampering, a risk of personal harm to individual jurors, and
other evils affecting the administration of justice." Id.
Here, the District Court did not make any
"particularized findings" regarding such exceptional circumstances
that were peculiar to this case. Nor does Court-appointed amicus
suggest that the District Court did so when denying in substantial
part WBUR's motion to release the requested information. Instead,
the District Court in its amended order recounted the jury's
historical role to explain, in part, its decision not to release
any of the requested information to WBUR until after sentencing
and not to release the jurors' addresses even then. The District
Court also placed great emphasis in its initial order on the
technological realities that supply the present context for WBUR's
request for juror information. As the District Court put it in
its initial order:
While the court respects the role of the media
in promoting "the public's long-term interest
in maintaining an open judicial process," [In
re Globe, 920 F.2d at 91], it will not release
jurors' home addresses. . . . [T]his is . .
. a necessary precaution in an age in which
traditional boundaries of personal privacy are
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under assault. While jurors serve in an
important public capacity, it is a role thrust
upon them as a duty of citizenship. The extent
to which such service might compromise a
juror's personal life once that service is
concluded should be a matter in which the
juror has the maximum say constitutionally
possible.
Thus, the first question before us is whether In re Globe
does indeed require, as WBUR contends, the requested disclosure of
juror addresses (as opposed to merely hometowns) post-trial,
absent the requisite "particularized findings" described above.
The second question that we must consider is whether In re Globe
requires the requested disclosure to occur "as soon as possible"
post-verdict, absent "particularized findings" to justify a delay
in the release of juror identities until after sentencing, which
here occurred three months after trial. For, if In re Globe does
impose either disclosure requirement in the absence of such
findings, then the order partially denying WBUR's motion did not
comply with that prior precedent. We thus now review what we said
in In re Globe.
B.
The case arose out of the Globe Newspaper Company's
request for access to the names and addresses of the jurors who
had participated in a then-just-completed criminal trial in a
federal district court in Boston. Id. at 90. The underlying
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criminal case concerned an alleged conspiracy to conceal illegal
drug profits involving three defendants. Id.
The jury there had found two defendants guilty and one
not guilty. Id. On the same day that the verdict was rendered
and the jury was discharged, "Globe reporters sought access to the
court's record of the juror names and addresses." Id.
When the district court in that case refused to grant
the reporters the requested access, the newspaper company moved to
intervene and to request access to the court's record of the juror
names and addresses. Id. That motion was denied, and the ensuing
appeal by the newspaper company led to our decision in In re Globe.
In reversing the ruling below, we recognized the
competing interests, constitutional and otherwise, implicated by
the newspaper company's request for access to the names and
addresses of jurors -– "the press's First Amendment right of access
to criminal trials[,] the defendant's Sixth Amendment right to a
fair trial[, and] the jurors['] interest in having their privacy
protected." Id. at 93 (citations omitted). We also noted that
"[k]nowledge of juror identities allows the public to verify the
impartiality of key participants in the administration of justice,
and thereby ensures fairness, the appearance of fairness and public
confidence in that system." Id. at 94. And, too, we noted, the
public disclosure of juror identities serves many of the same
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purposes of "open justice" that are protected by the First
Amendment to the United States Constitution. Id.
We chose, however, not to rest our decision reversing
the ruling below on a constitutional holding rooted in the First
Amendment. Instead, we based our decision on a construction of
what was then § 10(c) of the District of Massachusetts Plan for
Random Selection of Jurors ("Jury Plan"), which the District had
adopted pursuant to the Jury Selection and Service Act of 1968, 28
U.S.C. §§ 1861-1874 (1982) ("the Act").
In construing those texts, we noted at the outset that,
although the language of the Act and of the Jury Plan make no
specific distinction between pre-verdict and post-verdict
disclosure of juror identities, "[t]he court's right to [keep names
and addresses of jurors confidential] during the trial [was] not
an issue in [In re Globe]." In re Globe, 920 F.2d at 90. We
observed as well that "[n]o doubt stronger reasons to withhold
juror names and addresses will often exist during trial than after
a verdict is rendered" and stated that "[t]o justify impoundment
after the trial has ended, the court must find a significant threat
to the judicial process itself." Id. at 91 (emphasis in original).
Against that background understanding, we then construed
the Jury Plan in light of the newspaper company's request for post-
verdict disclosure of juror identities. In doing so, we noted
that the Jury Plan's relevant provision barred the disclosure of
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juror names until the jurors "have appeared, or failed to appear,
in response to the summons." In re Globe, 920 F.2d at 92 & n.4
(quoting Jury Plan § 10(c)). We noted as well that this same
provision then went on to state that "[a]ny judge of this Court
may order that the names of jurors remain confidential even
thereafter if the interests of justice so require." Id. (emphasis
omitted) (quoting Jury Plan § 10(c)).4
With those observations in place, we then "construe[d]
the § 10(c) interests-of-justice exception as contemplating the
[post-verdict] withholding of juror identities only upon a finding
of exceptional circumstances peculiar to the case" and thus "h[e]ld
that, given the absence [in In re Globe's case] of particularized
findings reasonably justifying non-disclosure, the juror names and
addresses must be made public." Id. at 97-98. Moreover, we
explained that "we construe ['names' in § 1863(b)(7) of the Act]
to encompass [jurors'] addresses" because addresses might be
4The Act, § 1863(b)(7) provides:
Among other things, such plan shall—
(7) fix the time when the names drawn from the qualified
jury wheel shall be disclosed to parties and to the
public. If the plan permits these names to be made
public, it may nevertheless permit the chief judge of
the district court, or such other district court judge
as the plan may provide, to keep these names confidential
in any case where the interests of justice so require.
Although this provision of the Act "suggest[s] that a local [jury]
plan might optionally decline not to permit juror names to be made
public at all," the District of Massachusetts's Jury Plan clearly
does so permit. See In re Globe, 920 F.2d at 92.
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necessary to identify an individual with a common name. Id. at 93
n.6.5 Thus, we concluded "that addresses as well as names are
presumptively available to the public under the [Jury Plan]," and
thus that juror "[a]ddresses as well as names may be withheld by
court order where the interests of justice so require, e.g., where
security considerations or matters of similar import are
involved." Id.6
Despite these seemingly definitive statements about the
requirement to disclose the requested information, Court-appointed
amicus argues that, with respect to the disclosure of juror
addresses, In re Globe at most sets forth dicta that does not bind
us here. To support this contention, Court-appointed amicus both
asserts that In re Globe "did not address the precise issue before
5
The Jury Plan implements the Act, and therefore, the
reference to "names" in § 10(c) of the Jury Plan, like the
reference to "names" in the Act, is construed to include addresses.
See id. at 93 n.6.
6
The Jury Plan was revised in 2015 to include a new summoning
and qualification procedure. In that revision, the text of what
was § 10(c) in 1990, when In re Globe was decided, is now included
verbatim in § 10(a). And it is that provision in the revised Jury
Plan that is now in place. The parties do not argue that this
change in the location of the relevant text makes In re Globe's
construction of the same operative language any less binding on us
than it would be if the Jury Plan that was before the court in In
re Globe was still in place. And we see no reason to conclude
otherwise. Thus, this feature of our case supplies no reason for
concluding that In re Globe does not bind us.
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this panel" and then characterizes that issue as being whether
hometowns would suffice to identify jurors.
The issue that we must decide, however, is not whether,
in principle, addresses are necessary in order to identify jurors.
The issue is whether In re Globe, in construing the same language
in the Jury Plan that is at issue here, holds that, presumptively,
they are. And, we conclude that In re Globe most certainly does
so hold, as the review of that precedent that we have set forth
above reveals.
The requirement that addresses must be disclosed so that
jurors may be identified is expressly part of In re Globe's
instructions to the district court in that case. Id. at 98. In
addition, In re Globe explains its reasoning on that score as
follows: "an address as well as the name is necessary to identify
the individual [in some cases]" and "therefore, . . . addresses as
well as names are presumptively available to the public under the
[Jury Plan]." Id. at 93 n.6 (emphasis added).
Nor does In re Globe's use of the qualifier
"presumptively" before the word "available" support the view put
forth by Court-appointed amicus. See id. That qualifier,
considered in context, merely reflects In re Globe's conclusion
that, in light of the principles that favor the disclosure of juror
identities, the obligation to disclose imposed by the language of
§ 10(c) may be overcome with respect to the release of juror
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addresses only if a district court makes the requisite
"particularized findings." See id. at 98.
Thus, we reject Court-appointed amicus's contention that
In re Globe does not render a holding on whether juror addresses
may be withheld post-verdict. It clearly does, as it holds that,
save for such findings, the addresses may not be so withheld. See
Arcam Pharm. Corp. v. Faría, 513 F.3d 1, 3 (1st Cir. 2007) ("We
have held that 'when a statement in a judicial decision is
essential to the result reached in the case, it becomes part of
the court's holding.' The result, along with those portions of
the opinion necessary to the result, are binding, whereas dicta is
not." (quoting Rossiter v. Potter, 357 F.3d 26, 31 (1st Cir. 2004))
(citation omitted)). And, we note, WBUR has represented that
addresses are necessary to identify some jurors in this case.
We next must consider whether In re Globe also holds
that the timing of the disclosure of the requested juror
information may not be delayed until after sentencing. Here, too,
we conclude that In re Globe does so hold.
In re Globe makes clear that it is deciding "the right
of access to juror names and addresses following a trial" rather
than during a trial, id. at 95, and that it is holding that, after
a trial is complete, "juror names and addresses must be made
public" in "the absence . . . of particularized findings reasonably
justifying non-disclosure," id. at 98. The logic of In re Globe
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thus requires that any delay in post-verdict disclosure be
justified by the requisite "particularized findings."
After all, In re Globe sets no limit for what would
amount to an acceptable delay without such findings. Rather, it
clearly states, "[t]o justify impoundment after the trial has
ended, the court must find a significant threat to the judicial
process itself." Id. at 91. Accordingly, we reject the contention
that In re Globe addresses only the issue of whether the permanent
impoundment of the relevant juror information is permissible.
To be sure, In re Globe does, as Court-appointed amicus
notes, cite favorably to United States v. Doherty, 675 F. Supp.
719 (D. Mass. 1987), in which the court delayed the release of
juror identities until one week after trial. The Doherty court
reasoned that such a delay would "not injure the values to be
furthered by a searching press inquiry into the lives of the
jurors" while at the same time affording jurors, among other
things, "a short breathing space to reflect on the experience of
jury service and, after consultation with family and friends,
determine what, if anything, the juror wishes to discuss with the
press." Id. at 725.
But, even assuming that In re Globe's citation of Doherty
indicates that there is some such brief time period that could
constitute an acceptable delay, the three-month delay in this case
far outstrips such a period. And so, once again, we reject the
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contention of Court-appointed amicus that In re Globe sets forth
no holding on the relevant point.
C.
We recognize, of course, that In re Globe was decided
decades ago and thus well before the first tweet was tweeted. As
the District Court emphasized, there is now a greater potential
for the public release of a juror's name, and, especially, a
juror's address, to be more intrusive and concerning than would
have been the case in an era in which social media was unknown.
But, these technological changes have by no means
diminished the need for accountability and transparency in our
system of justice that In re Globe treats as relevant in construing
the critical provision of the Jury Plan. Nor is In re Globe
dogmatic in reading that Jury Plan language to favor, on balance,
disclosure. Rather, it construes the Jury Plan's relevant text to
permit nondisclosure in cases of individualized and adequately
demonstrated need.
In any event, for present purposes, what matters is not
how, all things considered, one might now choose to strike the
balance that In re Globe holds that the Jury Plan's key provision
had struck. What matters is that In re Globe does render a holding
about that balance and that "[i]n a multi-panel circuit, newly
constituted panels are, for the most part, bound by prior panel
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decisions closely on point." Williams v. Ashland Eng'g Co., 45
F.3d 588, 592 (1st Cir. 1995).
"This tenet embodies what has come to be known as
the law of the circuit doctrine, which is a 'subset of stare
decisis' [and] one of the sturdiest 'building blocks on which the
federal judicial system rests.'" United States v. Barbosa, 896
F.3d 60, 74 (1st Cir. 2018) (quoting San Juan Cable LLC v. P.R.
Tel. Co., 612 F.3d 25, 33 (1st Cir. 2010)). And while there are
exceptions to this doctrine that account for the circumstance when
there has been intervening precedent, id., those exceptions do not
apply here, nor does Court-appointed amicus or the District Court
offer any basis for concluding otherwise.
As a result, we are bound, under the law of the circuit
doctrine, to construe the operative language of the Jury Plan that
is at issue in this case in the same manner that we construed the
exact same language in In re Globe. And, for that reason, we
cannot accept the District Court's legal conclusion that "concerns
for juror privacy and a lack of precedent requiring the disclosure
of jurors' home addresses" provide a justification for a
generalized ruling that "a release of jurors' names, together with
their home towns, at the appropriate time (after sentencing),
strikes the proper balance between the public right of access and
the juror right to privacy."
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Moreover, we note that a district court's "supervisory
power does not license it to ignore an otherwise valid existing
jury plan or to bypass the mechanism provided by statute to alter
such plan [because] '[t]o allow otherwise "would confer on the
judiciary discretionary power to disregard the considered
limitations of the law it is charged with enforcing."'" In re
United States, 426 F.3d 1, 9 (1st Cir. 2005) (quoting Bank of Nova
Scotia v. United States, 487 U.S. 250, 254 (1988)). Thus, in
light of In re Globe's holding about the meaning of the text of
the Jury Plan that is at issue and the law of the circuit doctrine,
the proper way for concerns about juror privacy to be addressed is
through the process of amending the Jury Plan itself, insofar as
any such amendment to the Jury Plan would be lawful -- a question
that we do not purport to address here.7
7 The District Court concluded its amended order by stating:
"The court would also suggest that any judge evaluating this same
issue consider whether he or [she] would disclose his or her home
address when issuing orders or rulings." Here, we must rule as we
do in consequence of our prior holding in In re Globe and the law
of the circuit doctrine. We do note, though, that, in construing
the Jury Plan to require the disclosure of juror names and
addresses post-verdict absent the requisite "particularized
findings," In re Globe emphasizes that jurors are not otherwise
sufficiently identifiable to the press and public. See In re
Globe, 920 F.2d at 93 n.6, 97-98. That reasoning does not apply
to judges. It also bears mentioning that it would be impossible
for judges to keep their addresses confidential during trials in
which they presided if they were required to disclose them post-
verdict, given that a judge is, by design, the quintessential
repeat player. No equivalent conundrum presents itself with
respect to jurors.
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IV.
The obligation of jury service is one of the most
important that our government imposes on its citizens. It is,
therefore, important to ensure that the fulfillment of this
obligation is not made so burdensome that it becomes more than a
citizen should have to bear. It is important to ensure as well,
though, that our system of justice remains accountable to the
broader public that it serves.
The District of Massachusetts Jury Plan reconciles these
competing concerns through the language now set forth in § 10(a).
This Court, nearly three decades ago, construed that exact same
language to require the post-verdict disclosure of juror names and
addresses, absent a district court having made the requisite
"particularized findings" to justify either nondisclosure or a
delay in disclosure. No precedent of this Court or the Supreme
Court has come down in the interim that in any way calls In re
Globe's holding about how that language must be construed into
question. Thus, In re Globe dictates the outcome that we reach
here and thus precludes us from affirming the contrary one reached
by the District Court.
Nevertheless, it would be imprudent to prevent the
District Court from considering on remand what it concluded that
it was not required to consider -- namely, whether this particular
case presents the kind of "exceptional circumstances" that In re
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Globe contemplates.8 Thus, we instruct the District Court on
remand to follow the rule set forth in In re Globe and to unseal
the list of juror names and addresses as WBUR requested in its
motion, unless the District Court first makes the kind of
"particularized findings" that could justify either the
nondisclosure of that information or the disclosure of it only
with lawful conditions tailored to those findings. Accordingly,
the District Court's order is vacated and remanded for proceedings
consistent with this opinion.
8 WBUR asserted in its motion that, "[u]nder the standards
set forth by the First Circuit, no such findings can be made here."
But, rather than develop any argument as to this issue on appeal,
WBUR simply states that "this case [does not] present any of the
kinds of factors that, in the unusual case, could present 'specific
and convincing reasons' for withholding juror identities." Thus,
the argument that no such findings can be made is waived. See
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)
(explaining that "issues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are
deemed waived").
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