In re: Associated Press v.

UNITED STATES COURT OF APPEALS FILED: March 2 2 , 2006
FOR THE FOURTH CIRCUIT

No. 06-1301

In Re: ASSOCIATED PRESS; CABLE NEWS NETWORK
LP, LLP; THE HEARST CORPORATION; NBC
UNIVERSAL, INCORPORATED; THE NEW YORK TIMES
COMPANY; WP COMPANY LLC, d/b/a The Washington
Post; USA TODAY; THE STAR TRIBUNE COMPANY; THE
REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS,
Petitioners.

ORDER

Petitioners, several media companies and a nonprofit

organization, have filed a petition for a writ of mandamus seeking

contemporaneous access to documentary exhibits admitted into

evidence in the course of the sentencing phase trial of Zacarias

Moussaoui. Petitioners also seek access to transcripts of bench
conferences conducted during the course of the trial. For the

reasons set forth below, we grant the petition in part and deny it

in part.

1.

On September 11, 2001, members of the terrorist organization
a1 Qaeda hijacked three passenger aircraft and crashed them into
the Pentagon and the World Trade Center towers in New York. A
fourth plane, apparently destined for the United States Capitol,

crashed in Pennsylvania after passengers wrested control from the

hijackers. The attacks resulted in the deaths of over 3,000 men,

women, and children.
Moussaoui is the only individual thus far criminally charged

with involvement in the attacks. In April 2005, Moussaoui pleaded

guilty to multiple charges in connection with the attacks, several

of which carry the death penalty as a potential sentence.

Accordingly, on March 6, a sentencing hearing began before a jury

for the determination of the appropriate penalty. Prior to the

commencement of the hearing, on February 14, the district court

entered two orders. A written order provided that "none of the

exhibits entered into evidence will be made available for pubic

review until the trial proceedings are completed, at which time

requests for these materials will be considered." United States v.

Moussaoui, No. 1:01cf455, at 3 (E.D. Va. Feb. 14, 2006) (order

denying access to exhibits entered into evidence) [hereinafter

"Feb. 14 Order"]. During a pretrial conference, the court ordered

that transcripts of bench conferences would be sealed until the

conclusion of the trial, at which time they would be unsealed
unless the transcript contained "some sensitive matter that
couldn't be public." Transcript of hearing at 16, United States v.

Moussaoui, No. 1:01cr455 (E.D. Va. Feb. 14, 2006).
 Petitioners thereafter moved to intervene and for

contemporaneous access to transcripts of bench conferences and to

documentary exhibits admitted at trial. The documentary exhibits

to which Petitioners seek access include not only printed material

(such as documents, maps, and photographs), but also videotapes

that have been shown to the jury in open court but not transcribed.

The Government and Moussaoui filed oppositions to the motion for

access. The district court granted the motion to intervene and

initially scheduled a hearing on the motion for access for

February 24, but it subsequently cancelled the hearing.

On March 10, Petitioners filed this petition for a writ of

mandamus, asserting a First Amendment right to contemporaneous

access to documentary exhibits and transcripts of bench

conferences--the same materials to which Petitioners sought access

in the district court. Later that day, the district court entered

an order denying the motion for access that had been filed in that

court. With respect to the documentary exhibits, the court ruled

that contemporaneous access was "logistically impossible," citing

the "extraordinary" number of exhibits and associated difficulties,

including the Government's exhibit numbering system and "the
potential that some evidence will only be partially declassified."

United States v. Moussaoui, No. 1:01cr455, at 2 (Mar. 10, 2006)

(order denying motion for access to certain portions of the record)
[hereinafter "March 10 Order"]. In addition to logistical
difficulties, the court noted a "significantN potential for

"undermining the integrity of the proceeding" if jurors were

exposed to evidence through the media before it was presented in

court. I .at
d 2-3. This concern related particularly to a "thick

set of stipulations," id. at 3, that had been fully admitted into
evidence but only partially published to the jury.

The court also denied access to transcripts of bench

conferences, reasoning that "neither the media nor the public has

a clearly established right under either the common law or the

First Amendment" to such transcripts. I .at 4. Indeed, the court
d
observed, contemporaneous public access to transcripts of bench

conferences "would undermine the very reason for having such

conferences." I .at 3. The court rejected Petitioners' proposed
d
compromise--whereby transcripts would be unsealed after a certain

amount of time unless a party presented a reason not to unseal--

stating that "to expect either the Court or counsel in the midst of

an extremely complicated case to review transcripts of bench

conferences to decide if they can be publicly disclosed presents an

unreasonable and inappropriate burden." - at
Id. 4.

11.
There is no doubt that the First Amendment guarantees the
public and the media the right to attend criminal trials. See

Globe NewspaDer Co. v. Superior Court, 457 U.S. 596, 603 (1982);
United States v. Soussoudis (In re Washinaton Post Co.i, 807 F.2d

4
383, 388 (4th Cir. 1986). That right is not in question here.

What Petitioners claim is the additional right to contemporaneous

access to documentary exhibits and transcripts of bench

conferences. The question of whether Petitioners' claimed right of

access exists is a legal one, and hence is subject to de novo

review, see United States v. Bakker (In re Charlotte Observer (Div.

of Kniaht Publ'a Co.)), 882 F.2d 850, 854 (4th Cir. 1989), while

the restrictions on access fashioned by the district court are

reviewed for abuse of discretion, see Nixon v. Warner Comrnc'ns,

I c ,435 U.S. 589, 599 (1978).
n.
A. Notice and an O ~ ~ o r t u n i tTo Be Heard
v

Petitioners first contend that the oral and written orders of

February 14 are facially invalid because they were issued without

prior notice and an opportunity to be heard. We conclude that any

defects that existed at the time of the February 14 orders have

been cured by subsequent proceedings.

It is well established that "representatives of the press and

general public must be given an opportunity to be heard on the

question of their exclusion" from a judicial proceeding. In re

Kniaht Publ'a Co., 743 F.2d 231, 234 (4th Cir. 1984) (internal
quotation marks omitted). The failure to provide notice and an
opportunity to object renders a closure of proceedings invalid.
See In re S.C. Press Ass'n, 946 F.2d 1037, 1039-40 (4th Cir. 1991) .
Although it appears that members of the press and the public were
not notified, and did not have an opportunity to be heard, prior to

the entry of the February 14 orders, there is no question that

Petitioners' objections to the denial of access have been aired

before the district court and addressed in the March 10 Order.

- - at 1040 ("In re Kniaht requires only that the press and
See id.
public be given notice and an opportunity to object to closure.").

We therefore conclude that Petitioners have received, albeit

belatedly, the process to which they are entitled.

B. Documentarv Exhibits

Petitioners contend that they are entitled to same-day access

to documentary exhibits--a category which includes written

documents, videotapes, and photographs--that are admitted into

evidence. The district court based its refusal to provide such

access on the difficulty of managing the extraordinary quantity of

evidence involved, the complexity of the exhibits, and the concern

that the jury would be tainted "if information not yet shown to the

jury is publicly available and seen by a juror." March 10 Order,

at 3. This latter concern focused particularly on the

stipulations, all of which had been admitted but only some of which

had been read to the jury.
It is undisputed that there is a right of access to judicial
records filed in connection with criminal proceedings. Although

the Supreme Court has stated no more than that this right is
grounded in the common law, see Warner Commc'ns, 435 U.S. at 598-
99, the Fourth Circuit has explicitly identified the right as

arising from the First Amendment, see In re Time Inc., 182 F.3d

270, 271 (4th Cir. 1999). However, this right is a qualified one

and may be limited by a compelling interest in preserving the

fairness of the trial, provided the restriction on access is

narrowly tailored. See Press-Enterprise Co. v. Superior Court

(Press-Enterprise 11) , 478 U.S. 1, 13-14 (1986).

We have little difficulty concluding that the district court

did not abuse its discretion in refusing to provide access to items

that have been admitted into evidence but that have not yet been

published to the jury, or that have been published only in part.

We therefore deny the petition for a writ of mandamus to the extent

that Petitioners seek access to any documentary exhibit that falls

into this category, i e ,any exhibit that has been admitted into
..
evidence but not yet fully published to the jury. Our denial

includes items that have been partially published to the jury; we

agree with the district court that the administrative burdens, to

the court and to the parties, associated with requiring piecemeal

access to partially admitted exhibits justify a refusal to provide

access to admitted exhibits until they have been fully published to
the jury.
A special note is required as to the rather puzzling category

of exhibits that are "declassified only for the limited purpose of
being discussed in court and shown to the jury without unrestricted
public access." Feb. 14 Order, at 2. To the extent that such

exhibits are published to the jury in open court, such that members

of the public are apprised of the contents of the exhibit (for

example, in the case of a declassified document that is read aloud

to the jury), we conclude that Petitioners are entitled to access

to the exhibit under the terms outlined below. However, to the

extent the contents of such an exhibit are concealed from the

public for reasons of national security, we conclude that

Petitioners are not entitled to access which has not been granted

to the public at large.

As for documentary exhibits that have been admitted into

evidence and fully published to the jury, we conclude that the

district court abused its discretion in denying access. "Once ...
evidence has become known to the members of the public ... through

their attendance at a public session of court, it would take the

most extraordinary circumstances to justify restrictions on the

opportunity of those not physically in attendance at the courtroom

to see and hear the evidence, when it is in a form that readily

permits sight and sound reproduction." United States v. Mvers (In

re Nat'l Broad. Co.), 635 F.2d 945, 952 (2d Cir. 1980). As noted

above, the district court identified two concerns in disallowing
any contemporaneous access to exhibits: juror taint and
administrative difficulties. The concern for juror taint is not

well taken regarding exhibits that have been fully published to the
jury because it is unlikely that simply seeing the evidence again

through a media publication will endanger Moussaoui's right to a

fair trial. See id. at 953. Moreover, the district court has

repeatedly instructed the jurors not to expose themselves to media

coverage of the trial; daily questioning by the court demonstrates

that the jurors have obeyed this instruction. See Vallev Broad.

Co. v. United States D. Ct., 798 F.2d 1289, 1297 (9th Cir. 1986)

(rejecting, as speculative, supposition that jurors might disregard

instructions not to watch media coverage of trial and possibility

of incremental prejudice resulting from viewing videotaped evidence

a second time).

The administrative concerns of the district court are also

insufficient to justify a complete denial of access. In Valley

Broadcastinq, the Ninth Circuit concluded that administrative

burdens were not sufficient to override the common law right of

access to judicial records but acknowledged that "cases could arise

in which the administrative burdens of access are so substantial

that they justify denial [of access] on that basis alone." I .at
d
1295 & n.8; cf. Rushford v. New Yorker Maaazine. Inc., 846 F.2d

249, 253 (4th Cir. 1988) ("The common law does not afford as much

substantive protection to the interests of the press and the public
as does the First Amendment."). We do not doubt that the
administrative burdens facing the district court are enormous.
Indeed, Petitioners themselves acknowledge this. However,
Petitioners maintain--and we agree--that there are ways to ease the

incremental administrative burdens that would arise from

accommodating their First Amendment right of access, such as

providing access to one copy of an exhibit--either through the

parties or through the court--and requiring the media to make

additional copies at their own expense. Ultimately, while we are

sympathetic to the administrative burdens faced by the district

court, we cannot agree that the incremental rise in those burdens

that would be caused by providing access justifies the denial of

access, until after the completion of trial, to all documentary

exhibits that have been admitted into evidence and fully published

to the jury. With respect to such exhibits, therefore, we grant

the petition for a writ of mandamus and direct the district court

to adopt a mechanism that will provide the media with one copy of

each documentary exhibit that has been admitted into evidence and

fully published to the jury. This copy should be made available as

soon as is practically possible, but in no event later than

10:OO a.m. on the day after the exhibit is published to the jury,

or, in the case of an exhibit that is published to the jury in

parts, after all parts of the exhibit have been published.

C. Bench Conferences

Petitioners' contention that they are entitled to transcripts

of bench conferences before the trial is without merit. The
Supreme Court has indicated that the existence of a First Amendment
right to observe trial proceedings does not necessarily extend to

all parts of a trial. See Richmond Newspapers, Inc. v. Virsinia,
448 U.S. 555, 581 n.18 (1980) (plurality opinion). And, bench

conferences traditionally are not open to the public. See Globe

Newspaper, 457 U.S. at 609 n.25; see also Richmond Newspapers, 448

U.S. at 598 n.23 (Brennan, J., concurring in the judgment) ("[Wlhen

engaging in interchanges at the bench, the trial judge is not

required to allow public or press intrusion upon the huddle. " ) .
Accordingly, courts that have considered the issue have recognized

the authority of the district court to exclude the public from

bench conferences. See, e.s., United States v. Valenti, 987 F.2d

708, 713-14 (11th Cir. 1993); United States v. Edwards, 823 F.2d

111, 116-17 (5th Cir. 1987). We agree with our sister circuits.

Petitioners maintain, however, that they do have a First

Amendment right to review transcripts of bench conferences as part

of the transcripts of the proceedings that are published daily. As

support for this contention, Petitioners rely on United States v.

Smith
I 787 F.2d 111, 114-15 (3d Cir. 1986), in which the Third

Circuit held that the public has at least a common law right to

review transcripts of bench conferences involving evidentiary
rulings. However, the Third Circuit in Smith did not rule that the

public and press must be provided access to transcripts of bench
conferences while a trial is ongoing. See id. at 114. Assuming
that there is a constitutional or common law interest in eventual
release of transcripts of bench conferences, this right is amply

satisfied by prompt post-trial release of transcripts. See
Edwards, 823 F.2d at 119. We therefore deny Petitioners' mandamus

petition to the extent that they seek contemporaneous or near-

contemporaneous access to transcripts of bench conferences.

For the reasons set forth above, the petition for a writ of
mandamus is GRANTED with respect to documentary exhibits that have

been admitted into evidence and fully published to the jury.

Access should be provided by the district court in the manner

provided in Part 1I.B. of this order or in some other fashion, as

long as access is provided within the identified time limitations.

In all other respects, the petition is DENIED.

Entered at the direction of Chief Judge Wilkins, with the

concurrences of Judge Gregory and Judge Duncan.