United States v. Presser , 828 F.2d 340 ( 1987 )

LIVELY, Chief Judge.

This is one of two appeals now before this court arising from preliminary proceedings in the prosecution of Jackie Presser, the president, and two other officials of the Teamsters Union. Neither appeal involves matters directly related to the question of the guilt or innocence of the defendants. The appellants in both cases seek media access to the sealed records of certain pretrial proceedings that were conducted in camera by the district court. The companion case is No. 86-3656, in which Storer Communications, Inc. and WJW-TV8 are the appellants (the Storer appeal), decided this date.

I.

A.

Following the May 16,1986 indictment of the defendants on charges of embezzling union funds, their case ..was assigned to United States District Judge Ann Aldrich by blind draw. John Climaco, the attorney for defendant Presser, wrote Judge Aid-rich, suggesting that she recuse herself in view of a longstanding quarrel between Judge Aldrich and himself. Judge Aldrich did not comply with the request, but did refer it to the judge of the district court handling miscellaneous matters, Honorable George W. White. This procedure had been suggested by this court in an unpublished opinion in an unrelated case in which another of Climaco’s clients had appealed Judge Aldrich’s denial of a motion to disqualify herself.

On June 3 (all dates refer to 1986 unless otherwise indicated) John Climaco filed a motion under seal with Judge White to disqualify Judge Aldrich pursuant to 28 U.S.C. §§ 144 and 455. The motion requested that proceedings thereon be conducted in camera. The motion was accompanied by a memorandum in support and a motion that the memorandum be filed under seal. A similar motion and memorandum were filed by Michael Climaco on behalf of the defendant Anthony Hughes— also under seal. Michael Climaco is the brother of John Climaco and both are members of the same law firm. Following a hearing on June 4 Judge White filed a memorandum in which he found that Judge Aldrich should be disqualified “under the circumstances” and in view of the affidavits of Presser and Hughes alleging a lack of impartiality growing out of differences between the judge and their attorneys. On June 5 Judge White entered an order returning the case to the clerk of court for reassignment and deferring the matter of unsealing the record. The National Broadcasting Company and WKYC-TV3 (hereafter NBC) had filed an application the same date, June 5, to be permitted to secure copies of all the documents related to the disqualification issue.

B.

On June 13, attorneys for the Department of Justice filed a motion for inquiry concerning conflicts of interest faced by the attorneys for the three defendants. On June 16, Presser filed a motion to place the government’s June 13 motion and accompanying documents under seal on the ground that they would generate additional prejudicial pretrial publicity. This motion and a supporting memorandum were also filed under seal. On June 20 NBC filed an application to receive copies of all documents related to the inquiry concerning conflicts of interest. On June 23 Judge White, to whom the case had now been assigned for trial, issued an order that all documents related to the inquiry would remain under seal until further order of court. Both Presser and Hughes filed memoranda, under seal, in opposition to NBC’s applications for access and Presser filed a motion, under seal, to place all documents related to the conflicts inquiry under seal.

The district court held a hearing in open court on June 26 at which the attorneys argued the legal issues raised by the various motions without discussing factual matters. At this hearing the attorney for the third defendant, Harold Friedman, also argued in favor of keeping all records pertaining to the motion for disqualification and the inquiry into conflicts of interest under seal. At the conclusion of the hearing the court denied NBC’s application for access. The court found that the sealed documents seeking the disqualification of Judge Aldrich related “to matters which are not relevant to the culpability of the within defendants,” but that their disclosure might cause potential jurors to become biased against the defendants. The district court also denied NBC’s application for access to the documents pertaining to the conflicts inquiry. The court again found that these materials have no bearing on the culpability of the defendants, but found further that their disclosure would make it “virtually impossible to impanel an impartial jury” and would create “far more than a ‘reasonable probability of prejudice’ to the defendants.” The district court filed a memorandum and order on June 27, directing that all documents remain under seal, and providing that a transcript including all the materials in question would be made available for public inspection after the trial, when “the danger of prejudice will have passed.”

C.

On July 3 NBC filed a motion for reconsideration of the rulings on both applications. The court held in camera hearings on July 10 and 11 on the conflicts issue and obtained waivers on the record from each defendant of any claim of prejudicial error arising out of conflicts of interest involving their attorneys. On July 22 the district court filed a memorandum and order denying NBC’s motion for reconsideration. In its memorandum the court analyzed the Supreme Court’s decision in Press-Enterprise Co. v. Superior Court of California, — U.S. -, 106 S.Ct. 2735, 92 L.Ed.2d 1, decided June 30, 1986, and concluded that NBC had not satisfied a “two-pronged test” set forth by the Court to establish a qualified right of access to the principal materials sought. The order did release from seal NBC’s applications, the memoranda and briefs in support and in opposition to the applications and various responses. What remained under seal were the defendants’ motions to disqualify Judge Aldrich with all supporting documents, the government’s motion for inquiry into conflicts with all supporting documents and the materials filed in response thereto by the defendants, and the transcripts of all in camera hearings and meetings.

The district court’s July 22 memorandum concluded:

Because Presser is entitled to a fair trial, Presser’s right to a fair trial supersedes the public's right of access, Press-Enterprise Company v. Superior Court, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984); Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), the publicity generated by the media has already created a high level of prejudicial pre-trial publicity such that there exists a “substantial probability” that Presser’s right to fair trial will be prejudiced by further publicity generated in connection with the release of information regarding the disqualification of the Honorable Ann Aldrich and the pleading filed by the United States of America seeking a court inquiry into various alleged conflicts of interest, there exists no reasonable alternative to closure other than a release of such information and materials after the conclusion of the trial on the merits.

For the foregoing reasons and for the reasons stated in the Court’s previous order, NBC and WKYC do not have a right of access to the information that they now seek by way of this motion for Reconsideration. The Motion for Reconsideration is DENIED.

D.

NBC filed a timely notice of appeal from the district court order formally sealing the various documents and from the orders denying its application for access and denying its motion for reconsideration. Although all of these orders are interlocutory with respect to the underlying case, we have jurisdiction of this appeal pursuant to 28 U.S.C. § 1291. NBC was permitted to intervene in the district court, and the orders satisfy the “collateral order doctrine” set forth in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). See Application of The Herald Co., 734 F.2d 93, 96 (2d Cir.1984).

II.

A.

This is not a prior restraint case. NBC is not restrained by the district court’s order from publishing or broadcasting documents or information in its possession. Rather, the case concerns the right of the public and representatives of “the media” to have access to documents filed in a district court at the preliminary stages of a criminal prosecution. The Supreme Court has decided a number of cases dealing with the right of access since 1979. See Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982); Press-Enterprise Co. v. Superior Court of California (Press Enterprise I), 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984); Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984); Press-Enterprise Co. v. Superior Court of California (Press Enterprise II), — U.S. -, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986). Some of these decisions involve the explicit Sixth Amendment guarantee of an open trial, which may be invoked only by a defendant, Gannett, 443 U.S. at 379-80, 99 S.Ct. at 2905, while others involve the right of the public to attend criminal trials and the right of representatives of the media to be present at such trials, as implied in the First Amendment. Richmond Newspapers, 448 U.S. at 580, 100 S.Ct. at 2829 (“We hold that the right to attend criminal trials is implicit in the guarantees of the First Amendment; without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and ‘of the press would be eviscerated.’ Branzburg, [v. Hayes], 408 U.S. 665 at 861, 92 S.Ct. at 2646, at 2656, 33 L.Ed.2d 626.”) (Footnote omitted). This court recently affirmed its adherence to a policy of openness in judicial proceedings. Brown & Williamson Tobacco Corp. v. F.T.C., 710 F.2d 1165, 1176-81 (6th Cir.1983), cert. denied, 465 U.S. 1100, 104 S.Ct. 1595, 80 L.Ed.2d 127 (1984).

In Press-Enterprise I the Court held that the First Amendment guarantee of an open public trial extends to the jury selection process and found that an order closing the courtroom and sealing the entire transcript of voir dire proceedings infringed that right. In so ruling the Court held:

The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.

464 U.S. at 510, 104 S.Ct. at 824.

The Supreme Court dealt with the First Amendment right of access in preliminary criminal proceedings for the first time in Press-Enterprise II. (Gannett dealt with the Sixth Amendment right to an open suppression hearing; Press-Enterprise I appeared to treat jury selection as the beginning of the trial.) In Press-Enterprise II the Court identified two “complementary considerations” in determining whether there is a qualified right of access to preliminary criminal proceedings, and then prescribed the standards to be applied to a closure order if the threshold criteria are satisfied. The complementary considerations are whether there is “a tradition of accessibility” and whether public access “plays a significant positive role in the functioning of the particular process in question.” 106 S.Ct. at 2740. There is a qualified right of public access if the particular preliminary proceeding “passes these tests of experience and logic.” Id. 2741.

B.

The district court concluded that proceedings on a motion to disqualify a judge and on a motion to inquire into attorney conflicts of interest passed neither of the Press-Enterprise II tests. Despite this finding, the district court went on to hold that the defendants’ right to a fair trial prevailed over any qualified right of access that might exist. This is a determination which the Supreme Court described as one required in “limited circumstances” in which the right of an accused to a fair trial might be undermined by publicity. Id. at 2741. The Court further stated:

[T]he proceedings cannot be closed unless specific, on the record findings are made demonstrating that “closure is essential to preserve higher values and is narrowly tailored to serve that interest.”

Id. at 2743. (Citation omitted). In further explication of the requirements for closure, the Supreme Court stated:

The First Amendment right of access cannot be overcome by the conclusory assertion that publicity might deprive the defendant of that right [to a fair trial]. And any limitation “ ‘must be narrowly tailored to serve that interest.’ ” Press-Enterprise, supra, 464 U.S. at 510, 104 S.Ct., at 824.

Id. at 2744.

III.

We will deal with the disqualification and conflicts issues separately, treating disqualification first.

A.

The defendants filed the motions and affidavits of bias against Judge Aid-rich pursuant to 28 U.S.C. § 144 and referred therein to 28 U.S.C. § 455 which sets forth the circumstances under which a judge must disqualify himself. Section 144 neither provides nor hints that the motion or affidavit should be sealed or that disqualification hearings should be closed. The fact that a judge is not required to give a reason for recusal is beside the point. Often judges recuse themselves sua sponte. In such a case there is no record; the judge withdraws for reasons that he or she considers sufficient. However, when a judge is disqualified as the result of an affidavit of bias, there is a record, and we believe the public is entitled to access. We know of no tradition that hearings on motions to disqualify for bias are closed and that all documents pertaining to such motions are sealed. To the contrary, such proceedings are usually held in open court, and even when the judge recuses himself, he usually puts a statement on the record disclaiming any bias and stating that he removes himself in order to permit the case to proceed without the distraction of a controversy related to the judge.

We have surveyed reported Sixth Circuit cases involving the disqualification of judges from 1924 to 1984 and have not found one in which the proceedings were closed or the record sealed. See Saunders v. Piggly Wiggly Corp., 1 F.2d 582 (W.D.Tenn.1924); Crowder v. Conlan, 740 F.2d 447 (6th Cir.1984), and cases cited in annotation to 28 U.S.C. § 144. A case involving an attempt to disqualify a judge for alleged antipathy toward an attorney was decided on an open record in Gilbert v. City of Little Rock, Ark., 722 F.2d 1390 (8th Cir.1983). We believe there is clearly a tradition of accessibility to disqualification proceedings.

We also believe that disqualification proceedings pursuant to a motion of one or more parties satisfy the second Press-Enterprise II consideration — public access does play “a significant positive role” in such proceedings. As the court stated in United States v. Chagra, 701 F.2d 354, 363 (5th Cir.1983), quoting United States v. Criden, 675 F.2d 550, 556 (3d Cir.1982), “The first amendment right of access is, in part, founded on the societal interests in public awareness of, and its understanding and confidence in, the judicial system.” The background, experience, and associations of the judge are important factors in any trial. When a judge’s impartiality is questioned it strengthens the judicial process for the public to be informed of how the issue is approached and decided.

We conclude that both threshold criteria were satisfied and that there is a qualified right of access to documents and records that pertain to a proceeding in which one or more parties seek to disqualify a judge for bias pursuant to 28 U.S.C. § 144. We emphasize that this ruling does not require a judge to make any record when he or she recuses sua sponte.

B.

The government’s motion for an inquiry into attorney conflicts in interest was filed, at least in part, pursuant to Rule 44(c), Fed.R.Crim.P., which provides:

(c) Joint Representation. Whenever two or more defendants have been jointly charged pursuant to Rule 8(b) or have been joined for trial pursuant to Rule 13, and are represented by the same retained or assigned counsel or by retained or assigned counsel who are associated in the practice of law, the court shall promptly inquire with respect to such joint representation and shall personally advise each defendant of his right to the effective assistance of counsel, including separate representation. Unless it appears that there is good cause to believe no conflict of interest is likely to arise, the court shall take such measures as may be appropriate to protect each defendant’s right to counsel.

Of the many decisions cited in the Notes of the Advisory Committee, only United States v. Foster, 469 F.2d 1 (1st Cir.1972), suggests that inquiries into possible conflicts should be conducted as closed proceedings. In Foster the court stated:

There may be unusual circumstances where, to avoid the possibility of prejudicial disclosures to the prosecution, the court may exercise its discretion to pursue the inquiry with defendants and their counsel on the record but in chambers.

Id. at 5. The reference to “unusual circumstances” indicates to us that in the ordinary case inquiries into conflicts of interest by attorneys should be held in open court, and that this is the traditional method of conducting such inquiries.

We also conclude that there is a significant positive role to be played by having such proceedings conducted in open court. From such proceedings the public is informed of the seriousness with which the Sixth Amendment right to counsel is treated and of the meticulous inquiries that are undertaken by the court to be certain that defendants understand their right to independent counsel with undivided loyalty to the client’s cause.

Thus, as with the disqualification issue, we conclude that proceedings inquiring into conflicts of interest by attorneys meet and satisfy the requirements of a qualified First Amendment right of access. Although not “like a trial,” in the sense of a preliminary hearing such as the court considered in Press-Enterprise II, both proceedings do require the court to make factual determinations and to apply settled legal principles in order to rule. In addition, resolution of the issues presented in both types of proceedings, has a significant bearing on all subsequent proceedings in a case, particularly on the trial itself.

IV.

A.

Having determined that there is a qualified right of access to the materials, our next inquiry is whether this case presents those “limited circumstances in which the right of the accused to a fair trial might be undermined by publicity.” Press-Enterprise II, 106 S.Ct. at 2741 (footnote omitted). The district court held that the materials submitted in both proceedings would engender publicity that would be prejudicial to the defendants’ right to a fair trial. The court also stated that no alternative to sealing existed that would preserve the defendants’ rights. We do not believe that the district court's findings satisfy the requirements set out in Press-Enterprise II. While the district court used the language of that opinion, it did so in a conclusory manner. It did not make “specific findings ... demonstrating that ” there was substantial probability that the defendants’ right to a fair trial would be prejudiced by further publicity and that reasonable alternatives to closure cannot adequately protect that right. Id. at 2743 (emphasis added). The conclusions that these are the conditions in this case are not supported by any specific findings “demonstrating” that this result would follow from unsealing the materials.

NBC urges us to conduct an independent appellate review since the entire record is before us. However, we believe the required findings should be made first by the district court, which has lived with this case for months and is familiar with all the issues. However, we do set forth some guidelines to be followed in making the determination.

B.

At the urging of Presser’s attorney the district court appears to have concluded that all publicity is prejudicial to a defendant’s right to a fair trial. This assumption is not tenable. As the Supreme Court emphasized in Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 565, 96 S.Ct. 2791, 2805, 49 L.Ed.2d 683 (1976), “pretrial publicity, even if pervasive and concentrated, cannot be regarded as leading automatically in every kind of criminal case to an unfair trial.” New cases in recent years have attracted such massive media attention as the California prosecution of John DeLorean for alleged violation of federal narcotics laws. In response to the wide press coverage, during the pretrial period, the trial judge ordered all documents to be filed in camera and sealed. The Court of Appeals found that this order violated the public’s First Amendment right of access and ordered the records unsealed unless “sufficiently specific” findings were made on a “document-by-document basis.” Associated Press v. United States District Court, 705 F.2d 1143, 1147 (9th Cir.1983). The media coverage, much of it negative, continued. It even included the broadcast of video tapes made by the government during its investigation of DeLorean. Yet, in the end, the jury acquitted this highly-publicized defendant.

It is significant that voir dire in some of the most widely covered criminal prosecutions has revealed the fact that many prospective jurors do not follow such news closely and that juries can be empanelled without inordinate difficulty. E.g., United States v. Myers, 635 F.2d 945, 948 (2d Cir.1980) (Abscam); United States v. Mitchell, 551 F.2d 1252, 1262 n. 46 (D.C.Cir.1976), rev’d on other grounds sub nom. Nixon v. Warner Communications, Inc., 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978) (Watergate). As the court noted in a different Watergate prosecution, “[t]his may come as a surprise to lawyers and judges, but it is simply a fact of life that matters which interest them may be less than fascinating to the public generally.” United States v. Haldeman, 559 F.2d 31, 62-63 n. 37 (D.C.Cir.1976) (en banc).

In the present case the materials submitted in support of the motion to disqualify Judge Aldrich do not relate to the defendants in any way, much less do they bear on the guilt or innocence of the defendants on the charges in this case. These materials concern a longstanding public feud between Judge Aldrich and members of the law firm representing Presser and Hughes. Much of the material consists of press accounts of charges and counter-charges over a three-year period. It is difficult to see how a rehash of these materials will lead to the deprivation of the defendants’ right to a fair trial. Any order continuing these materials under seal must be extremely narrowly tailored.

The materials related to the alleged attorney conflicts of interest present some different considerations. To the extent that these materials concern attorneys in the case rather than the defendants, they resemble those filed with the motion to disqualify Judge Aldrich. Insofar as the motion seeks to point out the danger of conflict and prejudice from dual representation, it calls for Rule 44(c) proceedings which should be unsealed. The materials contain nothing of a derogatory or unusual nature. Other materials submitted in connection with this inquiry appear to require closer scrutiny. The district court will reconsider these materials and if it concludes again that their unsealing will create publicity that has a substantial likelihood of prejudicing the defendants’ right to a fair trial, it will make specific findings demonstrating why this is so and will enter an order tailored as narrowly as possible to avoid this result. In addition to demonstrating a substantial likelihood of prejudice, the findings must also demonstrate that no alternatives can adequately protect the right to a fair trial and that closure will be effective to achieve this protection. See Associated Press v. United States District Court, 705 F.2d at 1146; United States v. Chagra, 701 F.2d at 365.

V.

This court is keenly aware of the difficulties encountered by district judges in dealing with highly-publicized cases, and we have no desire to add to those difficulties. Judge White has displayed patience and extreme care in all aspects of this particular case. The work of judges is never easy when two constitutional protections come into conflict in a given case. In Press-Enterprise II the Supreme Court remarked on the necessity for all courts “to remember that these interests are not necessarily inconsistent. Plainly, the defendant has a right to a fair trial but, as we have repeatedly recognized, one of the important means of assuring a fair trial is that the process be open to neutral observers.” 106 S.Ct. at 2740. We believe the standards defined by the Supreme Court and applied by various courts of appeals, as noted herein, provide the necessary framework for reconciling conflicts between the First Amendment right of access and the Sixth Amendment guarantee of a fair trial.

Openness in judicial proceedings promotes public confidence in the courts. The Supreme Court has pointed out that openness has been a principle that accompanied the long evolution of proceedings culminating in the modern criminal trial. Richmond Newspapers, Inc. v. Virginia, 448 U.S. at 564-75, 100 S.Ct. at 2820-26. One feature of that evolution has been the increasing importance of pretrial proceedings. The Supreme Court has recognized that the importance of some pretrial proceedings dictates that the rule of openness not be confined to the actual trial. Press-Enterprise II. By extending the presumption of a right of access to the particular proceedings involved in this and the Storer appeal, and requiring strict compliance with the requirements for overcoming that presumption, we do no more than acknowledge the critical importance of a core ingredient of the American judicial system.

The orders appealed from are vacated, and the cause is remanded for further proceedings consistent with this opinion. The documents sealed by the district court will remain sealed until that court has an opportunity to carry out the remand in an expeditious manner.