REVISED, JULY 13, 2000
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-30134
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES HARVEY BROWN, also known as Jim Brown,
Defendant-Appellant.
Appeal from the United States District Court for the
Middle District of Louisiana, Baton Rouge
July 6, 2000
Before KING, Chief Judge, and GARWOOD and DeMOSS, Circuit Judges.
GARWOOD, Circuit Judge:
Defendant-appellant James Harvey “Jim” Brown (Brown), a
prominent Louisiana political figure, is currently under indictment
in the Middle District of Louisiana on various charges relating to
the brokering of an alleged “sham” settlement of a threatened
lawsuit by the State of Louisiana against the president of a failed
automobile insurance company. The district court sua sponte
entered a gag order that prohibits attorneys, parties, or witnesses
from discussing with “any public communications media” anything
about the case “which could interfere with a fair trial,” including
statements “intended to influence public opinion regarding the
merits of this case,” with exceptions for matters of public record
and matters such as assertions of innocence. The district court
denied Brown’s motion to vacate or modify the gag order, and Brown
now appeals that denial. We affirm.
Facts and Proceedings Below
Brown is the elected Insurance Commissioner for the State of
Louisiana. On September 24, 1999, Brown, along with five others,
including former Louisiana Governor Edwin W. Edwards (Edwards), was
indicted in United States District Court for the Middle District of
Louisiana on numerous counts of conspiracy, mail and wire fraud,
insurance fraud, making false statements, and witness tampering.
The charges all relate to Brown’s alleged use of his influence as
Insurance Commissioner to help construct, along with Edwards and
the other defendants, a “sham settlement” that derailed a $27
million lawsuit threatened by the state against David Disiere,
president of Cascade Insurance Co., a failed automobile insurance
carrier. In a news conference shortly after the indictment was
issued, Brown declared his innocence as well as his belief that he
was the victim of a “political drive-by shooting” at the hands of
“an out-of-control prosecutor.” After some delays, the trial is
currently scheduled to commence on August 21, 2000.
On the day the indictment was issued against Brown and his co-
2
defendants, the district court entered on its own motion a gag
order prohibiting parties, lawyers, and potential witnesses from
giving to “any public communications media” “any extrajudicial
statement or interview” about the trial (other than matters of
public record) that “could interfere with a fair trial or prejudice
any defendant, the government, or the administration of justice.”
The order provides that “[s]tatements or information intended to
influence public opinion regarding the merits of this case are
specifically designated as information which could prejudice a
party.” The order expressly does not prevent the parties from
discussing, “without elaboration or any kind of characterization,”
(1) the general nature of any allegations or defenses; (2)
information contained in the public record; (3) scheduling
information; (4) any decision or order by the court that is a
matter of public record; and (5) “the contents or substance” of any
motion filed in the case, to the extent the motion is a matter of
public record.
The district court had previously entered a similar gag order
for a related case pending in the same court in which Edwards was
also a defendant. In that case, Edwards and six others were
charged with multiple counts of racketeering, extortion, money
laundering, and wire and mail fraud for allegedly extorting money
from parties who sought licenses to operate riverboat casinos in
Louisiana. On May 9, 2000, the jury convicted Edwards and four
3
other defendants; the district court has subsequently lifted the
gag order in that case. A third case is also pending before the
same district court, this one concerning allegations that three
individuals (not parties to the present appeal) improperly used
their political influence to steer the awarding of certain
lucrative contracts. As the district court noted, these three
cases concern different alleged acts of wrongdoing but involve many
of the same defendants and arose from the same federal
investigation. Given the allegations of corruption against several
prominent political and business figures, all three cases have
generated extensive and intense local and national media attention.
On September 28, 1999, the district court temporarily lifted
the gag order in this case to avoid interfering with Brown’s re-
election campaign for Insurance Commissioner. Shortly thereafter,
various defendants1 released to the media recordings (as well as
transcripts of recordings) of telephone conversations relevant to
the case, and also conducted interviews while playing the
recordings. The release of these recordings attracted further
interest from the press. On October 7, 1999, the district court
entered a limited order prohibiting the parties from releasing
recordings (or transcripts of recordings) made prior to the trial.
The limited order also prohibited the release of any other
1
In its denial of Brown’s motion to vacate or modify the order, the
district court noted that this had happened but did not specify which
defendants engaged in these acts.
4
discoverable material. At a status conference on October 14, 1999,
the district court explained that it had entered the limited order
“to stop an avalanche of both government and defendants picking out
tapes and start playing all these tapes on radio and television.”
The court also invited the parties to suggest modifications to the
order if they believed any modifications were necessary. None did
so.
On November 18, 1999, the district court reimposed the
original gag order, to be effective in its entirety when the polls
closed on November 20, voting day for the Insurance Commissioner
run-off election.2 At a status conference conducted on November
18, Brown objected to the gag order. The district court responded
that it believed the order to be necessary in light of the
considerable publicity surrounding the trial,3 but emphasized his
willingness to consider any modification that the parties might
suggest.4 On November 30, 1999, Brown moved to vacate or modify
the order. After conducting a hearing on the motion on January 4,
2000, the district court requested that the parties submit proposed
modifications to the gag order. Brown proposed that the substance
of the order remain intact, but that it should only apply to
2
Brown was ultimately re-elected Insurance Commissioner.
3
Regarding the intense media interest in the case, including
legions of reporters waiting outside the courtroom while the November
18 hearing took place, the district court emphasized that “I am not
going to let this get out of hand.”
4
“I modified it once; I can modify it again.”
5
counsel, not to defendants or witnesses. On February 4, 2000, the
district court denied Brown’s motion to vacate or modify the gag
order. Brown then petitioned this Court for a writ of mandamus to
vacate the gag order; his petition was denied. See In re Brown,
No. 00-30144 (5th Cir. Feb. 21, 2000) (unpublished). On February
7, 2000, Brown filed a notice of appeal from the district court’s
denial of his motion to vacate or modify the gag order. It is that
appeal which we address here.
Discussion
I. Jurisdiction
As a threshold matter, we must determine whether we have
jurisdiction to hear Brown’s appeal at all. Both Brown and the
only other party to this appeal, appellee the United States, which
defends the district court’s order, agree that the order is
appealable. However, “appellate jurisdiction is not a matter of
consent.” Trient Partners I Ltd. v. Blockbuster Entertainment
Corp., 83 F.3d 704, 708 (5th Cir. 1996). This question is
particularly important in light of a recent decision by another
panel of this Court, which casts some doubt on our ability to hear
the appeal. In the riverboat casino license case, which had been
pending before the same district court, Edwards and the other
defendants appealed the district court’s denial of their motion to
lift an identical gag order. This Court dismissed their appeal for
lack of jurisdiction. See United States v. Edwards, 206 F.3d 461
6
(5th Cir. 2000) (per curiam). The special circumstances in
Edwards, however, distinguish it, and we conclude that we have
jurisdiction to consider the merits of Brown’s appeal.
In what is commonly referred to as the final judgment rule,
Congress has limited the jurisdiction of this Court to “final
decisions of the district courts.” 28 U.S.C. § 1291. One of the
exceptions to the final judgment rule is known as the collateral
order doctrine, which the Supreme Court announced in Cohen v.
Beneficial Industrial Loan Corp., 69 S.Ct. 1221 (1949). “The
collateral order doctrine establishes that certain decisions of the
district court are final in effect although they do not dispose of
the litigation.” Davis v. East Baton Rouge Parish Sch. Bd., 78
F.3d 920, 925 (5th Cir. 1996). Under this doctrine, some orders
may be appealed despite the absence of final judgment if they (1)
are conclusive, (2) resolve important questions that are separate
from the merits, and (3) are effectively unreviewable on appeal
from the final judgment in the underlying action. See In re Grand
Jury Subpoena, 190 F.3d 375, 381 (5th Cir. 1999) (quoting
Cunningham v. Hamilton County, 119 S.Ct. 1915, 1919 (1999)).
We conclude that the district court’s denial of Brown’s motion
to vacate or modify the gag order is appealable under the
collateral order doctrine. First, in terms of Brown’s request that
the gag order be vacated entirely or at least not applied to him,
the order is conclusive. Second, the question at issue–weighing
7
the competing interests of a trial participant’s First Amendment
right to discuss his criminal trial freely against the district
court’s obligation to ensure a fair trial and dispense justice in
an orderly manner–is unquestionably important. Moreover, it is
entirely divorced from the merits of Brown’s criminal trial.
Third, the district court’s refusal to vacate or modify the gag
order as Brown requested would be completely unreviewable not only
in the event of Brown’s acquittal, but also doubtless in the event
of conviction because Brown would almost certainly be unable to
demonstrate that his conviction had somehow been tainted by his
inability to make “extrajudicial comments,” to the public media,
which, by definition, have no bearing on the trial itself. Brown
asserts First Amendment, not fair trial, rights.
We do not believe that the holding of the Edwards panel
requires us to reach a different conclusion. The Edwards panel
omitted any explanation why the gag order in that case was not
appealable under the collateral order doctrine, i.e., it did not
state which, if any, of the doctrine’s three factors the order
failed to satisfy. The Edwards panel did, however, specifically
mention a feature of the Edwards appeal distinguishing it from
Brown’s, namely that the Edwards defendants waited ten months
before either objecting to the gag order or attempting to have it
modified. The district court dismissed their motion to vacate or
modify as “frivolous.” Edwards, 206 F.3d at 462. In this case, by
8
contrast, Brown objected immediately to the gag order and has
pursued his objection vigorously. Unlike the Edwards defendants,
he has not been dilatory. Nor do we discern anything frivolous
about Brown’s appeal. Another aspect of Brown’s appeal
distinguishes it from Edwards. Brown’s argument on appeal, as
below, is that the order violates his First Amendment rights; he
does not argue that it damages his right to a fair trial. However,
the Edwards opinion reflects that the argument of the putative
appellants there was that the gag order “[wa]s damaging the
[D]efendants ability to obtain a fair trial.” Id. at 462. Whether
the gag order did materially damage the Edwards defendants’ fair
trial rights would have to be determined on appeal from any
conviction and if such contention were sustained,5 would be wholly
vindicated by ordering a new trial, while an acquittal would
necessarily negate any injury to the fair trial interest. As above
noted, however, that is simply not the case with respect to Brown’s
First Amendment claim. We conclude that Edwards is not controlling
in the present setting.
The Edwards panel’s wariness of applying the collateral order
doctrine was also apparently influenced by the Supreme Court’s
command that federal courts apply the collateral doctrine “with the
5
And basing the motion to vacate the gag order on such an argument
may have been, in addition to motion’s belatedness, what prompted the
Edwards trial court to characterize the motion to vacate as “frivolous.”
9
utmost strictness” in criminal cases. See Flanagan v. United
States, 104 S.Ct. 1051, 1054 (1984). Animating this reticence to
apply the collateral order exception in criminal cases is section
1291's policy of finality, which is most compelling in the criminal
context. See id.; see also United States v. Hollywood Motor Car
Co., 102 S.Ct. 3081 (1982) (per curiam) (“This Court has long held
that [the doctrine of finality] is inimical to piecemeal appellate
review of trial court decisions which do not terminate the
litigation, and that this policy is at its strongest in the field
of criminal law . . . .”); DiBella v. United States, 82 S.Ct. 654,
656-57 (1962) (“Th[e] insistence on finality and prohibition of
piecemeal review discourage undue litigiousness and leaden-footed
administration of justice, particularly damaging to the conduct of
criminal cases.”). Each type of pretrial order that the Supreme
Court has recognized as appropriate for interlocutory appeal via
the collateral order doctrine–orders denying a motion to reduce
bail, or denying a motion to dismiss an indictment on Double
Jeopardy, Speech, or Debate Clause grounds– not only satisfied the
requirements of Cohen, but also involved “an asserted right the
legal and practical value of which would be destroyed if it were
not vindicated before trial.” Flanagan, 104 S.Ct. at 1055
(citation omitted). Brown’s asserted right to contemporaneously
comment on his case in public and defend his reputation would, like
the other rights recognized by the Supreme Court, “be irretrievably
10
lost if review were postponed until trial is completed.” Id.
Moreover, Brown’s interest in contemporaneously making his case
before the public would arguably not be “largely satisfied by an
acquittal resulting from the prosecution’s failure to carry its
burden of proof,” id. at 1056, and the damage to his personal and
professional reputations may already be done by the conclusion of
trial.
Importantly, hearing Brown’s appeal under the collateral
order doctrine does nothing to threaten or undermine the finality
of, or the conduct of proceedings in, his criminal case because the
trial will proceed regardless of this Court’s consideration of his
present appeal and the result of this appeal, favorable to Brown or
not, will not be dispositive of the merits of or procedures
followed in his criminal case. Because such finality concerns were
the Supreme Court’s principal reason for eschewing the collateral
order doctrine in all but a few types of orders in criminal cases,
we see no reason not to entertain this appeal pursuant to the
doctrine.
Our conclusion finds support in the fact that this Court and
other Courts of Appeals have repeatedly held, in both civil and
criminal trials, that gag orders imposed on members of the press
are appealable under the collateral order doctrine. See Davis, 78
F.3d at 925-26 (holding that district court’s denial of news
agencies’ motion to vacate confidentiality order in desegregation
11
litigation appealable under collateral order doctrine); United
States v. Chagra, 701 F.2d 354, 358 (5th Cir. 1983) (finding that
district court’s closure of pretrial bail reduction hearing was
appealable under the doctrine); United States v. Gurney, 558 F.2d
1202, 1207 (5th Cir. 1977) (concluding that denial of press access
to certain court documents in high-profile criminal suit was an
appealable collateral order); see also In re Reporters Comm. for
Freedom of the Press, 773 F.2d 1325, 1330 (D.C. Cir. 1985); United
States v. Schiavo, 504 F.2d 1, 4 (3d Cir. 1974). This Court’s
decisions allowing appeals by the press of gag orders did not
depend on any special status of the press as third-parties to the
criminal trial. See Davis, 78 F.3d at 925-26; Chagra, 701 F.2d at
358; Gurney, 558 F.2d at 1202. Accordingly, we perceive no reason
to limit the appealability of this type of order to members of the
media alone.
In that same vein, we note that other Courts of Appeals have
also found gag orders appealable under the collateral order
doctrine by trial participants, including the litigants themselves.
See, e.g., In re Rafferty, 864 F.2d 151, 155 (D.C. Cir. 1988)
(finding in a civil case that “[i]t would certainly be anomalous if
a litigant in Mr. Rafferty’s shoes who wished to distribute
information to the government or to the media could not appeal an
order forbidding him from doing so, while the newspaper to whom he
wished to give his story were able to appeal”); United States v.
12
Ford, 830 F.2d 596, 598 (6th Cir. 1987) (finding jurisdiction under
collateral order doctrine to consider appeal by criminal defendant
politician contesting validity of gag order). Regarding this
jurisdictional question, Ford is on point with both Edwards and the
present appeal. While the Edwards panel chose not to follow Ford
“in the circumstances of this case,” see Edwards, 206 F.3d at 462
n.1, we see no reason not to do so in the present somewhat
difference circumstances.6 We hold, therefore, that pursuant to
the collateral order doctrine, we have jurisdiction over Brown’s
appeal from the district court’s order.7
6
As discussed in Part II, infra, we do not find Ford controlling
in our disposition of Brown’s constitutional claim under the facts here.
7
We reject Brown’s alternative argument that this Court has
jurisdiction under 28 U.S.C. § 1292(a)(1). Section 1292(a)(1)
authorizes appeals from interlocutory orders that grant or deny an
injunction, or have “the practical effect of doing so.” United
States v. Garner, 749 F.2d 281, 286 (5th Cir. 1985) (quoting Carson
v. American Brands, Inc., 101 S.Ct. 993, 996-97 (1981)). Whether
or not the gag order has the practical effect of granting an
injunction against making extrajudicial comments, “[a]n order by a
federal court that relates only to the conduct or progress of
litigation before that court ordinarily is not considered an
injunction and therefore is not appealable under § 1292(a)(1).”
Gulfstream Aerospace Corp. v. Mayacamas Corp., 108 S.Ct. 1133, 1138
(1988); see also Switzerland Cheese Ass’n, Inc. v. E. Horne’s
Market, Inc., 87 S.Ct. 193, 195 (1966) (“Orders that in no way
touch on the merits of the claim but only relate to pretrial
procedures are not in our view