Case: 10-40221 Document: 00511480518 Page: 1 Date Filed: 05/17/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 17, 2011
No. 10-40221 Lyle W. Cayce
Clerk
HEARST NEWSPAPERS, L.L.C., doing business as
Houston Chronicle,
Intervenor Plaintiff - Appellant
_____________________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
OZIEL CARDENAS-GUILLEN,
Defendant - Appellee
v.
HEARST NEWSPAPERS, L.L.C., doing business as Houston Chronicle,
Intervenor - Appellant
Appeal from the United States District Court
for the Southern District of Texas
Before BARKSDALE, DENNIS, and HAYNES, Circuit Judges.
DENNIS, Circuit Judge:
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This case involves a district court’s order to close the sentencing
proceeding of a drug cartel leader without first giving the press and public
notice and an opportunity to be heard regarding the decision to close the
hearing. We conclude that the press and public have a First Amendment
right of access to sentencing hearings, and that the district court should have
given the press and public notice and an opportunity to be heard before
closing the sentencing proceeding in this case.
BACKGROUND
Oziel Cardenas-Guillen, the former leader of the Gulf Cartel, a
notorious Mexican drug cartel, was arrested in Mexico in 2003. At the time,
according to the government, Cardenas-Guillen was considered “one of the
most wanted, feared, and violent drug traffickers in the world,” and was
“widely believed to be partly responsible for the ongoing drug trafficking wars
and ‘bloodbaths’ along the Mexican border, resulting in the deaths of
approximately 2000 persons.” Even while incarcerated in Mexico, he
“reportedly continued to coordinate the activities of his organization from
jail.”
In 2007, the United States took custody of Cardenas-Guillen. He was
charged, inter alia, with involvement in conspiracies to distribute large
quantities of marijuana and cocaine, violating the continuing-criminal-
enterprise statue, 21 U.S.C. § 848 (also known as the “drug kingpin statute”),
and threatening federal officers. The case was assigned to a district court in
the Brownsville Division of the Southern District of Texas.
The government moved to transfer the venue for the criminal trial from
Brownsville, Texas, to another location. Among other reasons, the
government cited concerns about being able to ensure the security of
personnel and civilians, due to the proximity of Brownsville to the Mexican
border. The government enclosed a letter from the United States Marshals
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Service explaining that Houston would be the best venue for holding the trial.
Cardenas-Guillen did not oppose the motion, and the district court granted
the transfer motion, directing that the case be transferred to Houston. The
case proceeded slowly, with almost all of the filings being made under seal.
Hearst Newspapers, L.L.C., doing business as the Houston Chronicle
(hereinafter “the Chronicle”), alleges that many of the filings were sealed
without following proper procedures.
On October 30, 2009, the Chronicle sent a letter to the district court,
making several requests. With regard to any future proceedings, the
Chronicle requested that the district court give notice and an opportunity to
be heard before closing such proceedings, and, if the court decided to close a
proceeding, to narrowly tailor such a closure and support its decision with on-
the-record findings. The Chronicle also requested that the court unseal any
sealed documents or make on-the-record findings regarding why those
documents remained under seal, and narrowly tailor any sealing. In
response, the district court ordered the parties to explain why previously
sealed documents should remain under seal. The parties conceded that some
documents did not need to remain sealed, but argued that others should
remain under seal until the conclusion of the case.
On February 9, 2010, the Chronicle moved to intervene and requested
that any uncontested documents be unsealed immediately, that the docket be
updated to provide some indication of documents that had been sealed, that
the government’s sealed memoranda be unsealed at least in redacted form so
that the Chronicle could respond, and that the court narrowly tailor any
sealing through redaction and enter specific findings as to documents that
remained under seal. The Chronicle attached to the motion its letter of
October 30, 2009. At some point, Cardenas-Guillen agreed to plead guilty to
the charges against him, but this fact was not made public. On February 18,
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2010, the government moved to close his sentencing hearing for reasons of
public safety, and also moved to deprive the public of notice that the hearing
was taking place. The government attached to the motion the supporting
affidavit of George Hephner, the Supervisory Deputy United States Marshal
for the Houston Division Operations Section. The next day, without
additional proceedings, the district court granted the motion in a sealed
order. The order expressly stated that it would not be unsealed until after
the sentencing hearing took place. The district court also sealed the
government’s motion.
The court scheduled the sentencing for February 25, 2010. A local
television station received word that the trial of Cardenas-Guillen would
occur on that date and inquired of the court as to whether that information
was correct. After consulting with the United States Marshals Service, the
district court covertly rescheduled the sentencing hearing for February 24,
2010.
During the sentencing hearing on that day, a Chronicle reporter
discovered a closed courtroom where the proceeding was being held and
attempted to gain access. An attorney for the Chronicle joined the reporter
and filed a handwritten motion requesting the district court to open the
sentencing hearing and to give the Chronicle an opportunity to be heard
before the closed hearing was completed. The district court was aware of the
Chronicle’s efforts to access the proceedings and stated during the hearing
that “in spite of all the efforts to ensure that this hearing not be noticed by
the media, I am told that there is a reporter from the Houston Chronicle who
is, as I speak, drafting a motion regarding his request to be heard — or to be
present during the — the hearing.” The district court declined to decide the
motion at that time, and instead continued with the closed sentencing
proceeding. Although the proceeding was sealed, the primary case agents
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and victims, as well as Cardenas-Guillen’s wife and daughter, were permitted
to be present. Later that same day, after the sentencing proceeding had been
completed, the district court denied the Chronicle’s motion as moot.
At the sentencing, the district court accepted Cardenas-Guillen’s guilty
pleas and the plea agreement between him and the government. The court
then sentenced Cardenas-Guillen, in accord with the plea agreement, to (1) 25
years on one count of conspiracy to possess with intent to distribute both
cocaine and marijuana, in violation of 21 U.S.C. §§ 846, 841(a)(1), and
841(b)(1)(A); (2) 5 years each on three counts of threatening to assault and
murder federal agents, in violation of 18 U.S.C. §§ 115 and 2; and (3) 20 years
on a fifth count for conspiracy to launder monetary instruments, in violation
of 18 U.S.C. § 1956(a)(1)(A)(i),(a)(2)(A), and (h). The district court ordered
that all the sentences would run concurrently. The district court also ordered
that Cardenas-Guillen serve supervised release terms of 5 years on the count
of conspiracy to possess with intent to distribute both cocaine and marijuana,
and 3 years as to each of the other four counts, all to run concurrently.
Finally, the district court ordered Cardenas-Guillen to pay a fine of $100,000
and special assessments totaling $500, and entered a preliminary order of
forfeiture of $50 million. The district court also indicated that it would docket
the record of the hearing, which would make public the fact that a sentencing
hearing had occurred, once it was advised by the United States Marshals
Service that doing so would be safe.
The government explains in its brief, and the district court docket
confirms, that “[w]ithin hours of the sentencing hearing, the hearing was
docketed.” Gov. Br. 11. In addition, “the recording of the hearing and the
transcript of the hearing were [made] available to the public . . . .” Id. The
docket also shows that the Chronicle ordered a copy of the transcript, which
was completed on February 25, 2010, the day after the sentencing proceeding.
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On February 26, 2010, two days after the sentencing hearing, the
Chronicle filed a second motion to intervene. On that same date, the district
court, inter alia, granted the motion to intervene and denied the Chronicle’s
request for public notice of all future hearings and for an opportunity to be
heard if closure were contemplated.
On March 2, 2010, the district court issued an order amending its
February 24, 2010 order, to further explain the reasoning of its February 24,
2010 order. It also added that in denying the Chronicle’s motion to open the
sentencing proceeding and to be heard before the closure of the sentencing
proceeding, it had considered the filings submitted by the government, as well
as the Chronicle’s February 9, 2010 motion to intervene.
The Chronicle timely appealed. On appeal, the Chronicle challenges (1)
the district court’s order of February 24, 2010 (as amended by the March 2,
2010 order), denying as moot the Chronicle’s request to open the sentencing
proceeding; (2) the district court’s order of February 24, 2010 (as amended by
the March 2, 2010 order), denying as moot the Chronicle’s request for an
opportunity to be heard prior to closure; and (3) the district court’s order of
February 26, 2010, denying the Chronicle’s request for public notice of all
future hearings and an opportunity to be heard if the court intended to close
any future proceedings. The district court designated all three orders as final
and immediately appealable.
We have appellate jurisdiction over the orders under the collateral
order doctrine, which “establishe[s] that certain decisions of the district court
are final in effect although they do not dispose of the litigation.” Davis v. E.
Baton Rouge Parish Sch. Bd., 78 F.3d 920, 925 (5th Cir. 1996); see also 28
U.S.C. § 1291 (establishing the jurisdiction of the courts of appeal over final
decisions of district courts). “Appealable collateral orders include ‘those
district court decisions that are conclusive, that resolve important questions
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completely separate from the merits, and that would render such important
questions effectively unreviewable on appeal from final judgment in the
underlying action.’” Davis, 78 F.3d at 925 (quoting Digital Equip. Corp. v.
Desktop Direct, Inc., 511 U.S. 863, 867 (1994)). The orders in this case
certainly meet those criteria. See id. at 926 (“We have previously held on
several occasions that members of the news media, although not parties to
litigation, can appeal court closure orders or confidentiality orders under the
collateral order doctrine.”).
STANDARD OF REVIEW
On appeal, we are asked to determine whether the press and public
have a First Amendment right of access to sentencing proceedings, and, if so,
whether they are also entitled to receive notice and an opportunity to be
heard prior to closure of sentencing proceedings. “Because this case involves
constitutional and other legal questions, we review the district court’s orders
de novo.” United States v. Brown (In re Times Picayune Publ’g. Corp.), 250
F.3d 907, 913 (5th Cir. 2001). “Specific factual findings of the district court
on the issue are, of course, entitled to review under the clearly erroneous
standard.” Id.
DISCUSSION
As an initial matter, we conclude that this court has jurisdiction over
the case, because it falls within the exception to mootness for questions that
are capable of repetition, yet evading review. We also conclude that the press
and public, including the Chronicle, have a First Amendment right of access
to sentencing proceedings. Finally, we conclude that the district court
deprived the Chronicle of its First Amendment right of access, without due
process, in refusing to give the press and public notice and an opportunity to
be heard before sealing the sentencing proceeding.
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A. Mootness
Despite the fact that Cardenas-Guillen’s sentencing proceeding has
already occurred, it is undisputed that this appeal is not moot. The issues in
this case are not moot because they are “capable of repetition, yet evading
review.” Press-Enterprise Co. v. Super. Ct. (Press-Enterprise II), 478 U.S. 1, 6
(1986); Globe Newspaper Co. v. Super. Ct., 457 U.S. 596, 600 (1982);
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 563 (1980); United
States v. Edwards, 823 F.2d 111, 114 (5th Cir. 1987). The issues that arise in
this case are capable of repetition because the Chronicle is a prominent
newspaper that seeks to cover major cases, and it is reasonable to expect that
district courts will close other criminal proceedings to the Chronicle in future
cases. See United States v. Criden, 675 F.2d 550, 554 (3d Cir. 1982) (“[I]t is
reasonable to expect that [Philadelphia Newspapers, Inc.], a major newspaper
publisher in the Philadelphia area, will be subjected to similar closure orders
entered by the district courts in this circuit.”). At the same time, these issues
often evade review due to the “short duration” of criminal trials. Richmond
Newspapers, Inc., 448 U.S. at 563.
B. The Chronicle’s First Amendment right of access to the
sentencing proceeding
The first question in this case is whether the press and public,
including the Chronicle, have a First Amendment right of access to a
sentencing proceeding. We conclude that they do. The Supreme Court has
developed a two-part test for determining whether there is a First
Amendment right of access to a particular criminal proceeding: (1) whether
the proceeding has historically been open to the public and press; and (2)
“whether public access plays a significant positive role in the functioning of
the particular process in question.” Press-Enterprise II, 478 U.S. at 8-9; see
also Press-Enterprise Co. v. Super. Ct. (Press-Enterprise I), 464 U.S. 501, 505-
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09 (1984). This test has been referred to as the “experience” and “logic” test.
See Globe Newspaper Co., 457 U.S. at 606 (explaining that “the institutional
value of the open criminal trial is recognized in both logic and experience”);
see also Press-Enterprise II, 478 U.S. at 9 (summarizing the test as
“considerations of experience and logic”).
In applying this test, the Supreme Court has recognized a First
Amendment right of access to various aspects of a criminal prosecution. See
Press-Enterprise II, 478 U.S. at 10 (preliminary hearings as conducted in
California); Press-Enterprise I, 464 U.S. at 505 (jury voir dire); Globe
Newspaper Co., 457 U.S. at 604 (trial); Richmond Newspapers, Inc., 448 U.S.
at 576-77 (trial). The courts of appeals have also recognized a First
Amendment right of access to various proceedings within a criminal
prosecution. See, e.g., United States v. Danovaro, 877 F.2d 583, 589 (7th Cir.
1989) (proceeding at which guilty plea was taken); United States v. Haller,
837 F.2d 84, 86-87 (2d Cir. 1988) (plea hearings); In re Knight Publ’g Co., 743
F.2d 231, 233 (4th Cir. 1984) (trials); United States v. Klepfer (In re Herald
Co.), 734 F.2d 93, 99 (2d Cir. 1984) (pretrial hearing on motion to suppress);
United States v. Chagra, 701 F.2d 354, 363-64 (5th Cir. 1983) (pretrial bond
reduction hearing); United States v. Brooklier, 685 F.2d 1162, 1167-71 (9th
Cir. 1982) (jury voir dire, pretrial hearing on motion to suppress, and
hearing conducted during trial on motion to suppress); Criden, 675 F.2d at
557 (pretrial suppression, due process, and entrapment hearings). But see
Edwards, 823 F.2d at 116-17 (First Amendment right of access does not
attach to mid-trial questioning of jurors about potential misconduct).1
1
A sentencing hearing is distinguishable from mid-trial questioning of jurors regarding
potential juror misconduct, which was the proceeding at issue in Edwards. The Edwards court
noted that such proceedings were not traditionally open to the public, and were within the
trial court’s discretion to make private because of the possibility of alienating jurors from
counsel and dividing jurors against each other. 823 F.2d at 116-17. In contrast, as we explain
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Although neither the Supreme Court nor this court has specifically
considered whether the First Amendment applies to a sentencing hearing,
the Second, Fourth, Seventh, and Ninth Circuits have done so, and each has
concluded that it does. United States v. Alcantara, 396 F.3d 189, 196-99 (2d
Cir. 2005); United States v. Eppinger, 49 F.3d 1244, 1252-53 (7th Cir. 1995);
United States v. Soussoudis (In re Washington Post Co.), 807 F.2d 383, 389
(4th Cir. 1986) (plea hearings and sentencing proceedings); CBS, Inc. v. U.S.
Dist. Ct., 765 F.2d 823, 825 (9th Cir. 1985) (“The primary justifications for
access to criminal proceedings . . . apply with as much force to post-
conviction proceedings as to the trial itself.”).2 Relatedly, courts of appeals
have also recognized a First Amendment right of access to documents filed
for use in sentencing proceedings. Washington Post v. Robinson (Robinson),
935 F.2d 282, 288 (D.C. Cir. 1991) (plea agreements); Oregonian Publ’g Co. v.
U.S. Dist. Ct., 920 F.2d 1462, 1466 (9th Cir. 1990) (plea agreements and
related documents); Haller, 837 F.2d at 86 (plea agreements); CBS, Inc., 765
F.2d at 824-25 (defendant’s motion to reduce sentence under Federal Rule of
Criminal Procedure 35 and government’s response); United States v.
Santarelli, 729 F.2d 1388, 1390 (11th Cir. 1984) (“[T]he public has a First
Amendment right to see and hear that which is admitted in evidence in a
public sentencing hearing.”).
We conclude, as have the other courts that have considered this
question, that the public and press have a First Amendment right of access
below, sentencing hearings have been historically open to the press and public. Moreover, the
functional concerns raised in Edwards are inapplicable in a sentencing hearing, especially
because there is no jury.
2
See also United States v. Santarelli, 729 F.2d 1388, 1390 (11th Cir. 1984) (explaining
that if an ambiguous district court order were “construed as being tantamount to closing the
sentencing hearing,” the order “could well run counter to the constitutional rule of open
judicial proceedings,” but declining to construe the order in that manner).
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to sentencing proceedings. Indeed, we agree with the Second and Fourth
Circuits that the Supreme Court’s holdings in Globe Newspaper Co. and
Richmond Newspapers, Inc. that there is a First Amendment right of access
to a trial should, logically, already encompass sentencing hearings:
Sentencing may . . . be viewed as within the scope of the criminal
trial itself. Sentencing can occur before the termination of the
trial proceeding, and, even if it occurs in a separate hearing, it
clearly amounts to the culmination of the trial. Moreover, even if
. . . sentencing hearings are not considered a part of the trial
itself, they are surely as much an integral part of a criminal
prosecution as are preliminary probable-cause hearings,
suppression hearings, or bail hearings, all of which have been
held to be subject to the public’s First Amendment right of
access.
Alcantara, 396 F.3d at 196-97 (quoting In re Washington Post Co., 807 F.2d
at 389) (quotation marks omitted)). The First Amendment right of access to
a sentencing proceeding is especially salient in this case, where, as in the
vast majority of criminal cases, there was no trial, but only a guilty plea. Id.
at 199 (“It makes little sense to recognize a right of public access to criminal
courts and then limit that right to the trial phase of a criminal proceeding,
something that occurs in only a small fraction of criminal cases.” (quoting In
re Herald Co., 734 F.2d at 98 (quotation marks omitted)).).
Moreover, applying the experience and logic test set out by the
Supreme Court confirms that the public and press have a First Amendment
right of access to sentencing proceedings. First, sentencing proceedings have
historically been open to the press and public. Alcantara, 396 F.3d at 197
n.7 (listing numerous cases from the nineteenth century “describ[ing]
sentencing proceedings held in open court” and citing secondary sources to
explain that “[h]istorically, [s]entences were often imposed immediately after
the jury returned a guilty verdict in open court”); In re Washington Post Co.,
807 F.2d at 389 (“Sentencings have historically been open to the public
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. . . .”). As the Chronicle points out, “the United States has a rich and proud
tradition of conducting public criminal trials and sentencing proceedings.”
These include numerous high profile cases of defendants who were
considered dangerous3 : the open trial and sentencing proceeding held in the
Southern District of Texas (Houston) for Juan Garcia Abrego, who was a
predecessor of Cardenas-Guillen4 as the leader of the Gulf Cartel;5 the open
sentencing held in the Southern District of New York for Jorge Mario
Paredes-Cordova,6 who was “designated by the United States Department of
Justice as one of the world’s most significant drug kingpins”;7 the open
sentencing proceeding held in the Eastern District of Virginia for Zacarias
3
We take judicial notice of these examples pursuant to Federal Rule of Evidence 201(b),
as these are facts that are “capable of accurate and ready determination by resort to sources
whose accuracy cannot reasonably be questioned.”
4
Narcotics Rewards Program: Antonio Ezequiel Cardenas-Guillen, Bureau of Int’l
Narcotics & Law Enforcement Affairs, U.S. Dep’t of State, http://www.state.gov/p/inl/narc/
rewards/123682.htm (last visited April 27, 2011) (“Following [Garcia Abrego’s] 1996 arrest by
Mexican authorities and subsequent deportation to the United States, Oscar Malherbe-De
Leon took control of the cartel until his arrest a short time later. He was replaced by Osiel
Cardenas-Guillen, who was arrested in 2003, and extradited to the United States in 2007.”).
5
U.S. Jury Convicts Mexican on Drug Charges, N.Y. Times, Oct. 17, 1996, available at
1996 WLNR 4331922 (“As the verdict was read, Mr. Garcia Abrego, 52, sat impassively, as he
had throughout the four-week trial.”); L.A. Times, Texas-born Drug Lord Gets 11 Life Terms
for Smuggling; Criminal also Must Pay $128 Million in Fines, Baltimore Sun, Feb. 1, 1997,
available at 1997 WLNR 1084726 (“U.S. District Judge Ewing Werlein sentenced Garcia
Abrego, who stood with hands clasped, wearing interpreter’s headphones . . . .”).
6
Bruce Golding, Guatemalan Drug Kingpin Cries after Getting 31 Years in the
Slammer, N.Y. Post, Apr. 16, 2010, available at http://www.nypost.com/p/news/local/manhat
tan/guatemalan/drug_kingpin_cries_after_Mb7qndOT8kdColDpvObzHI (“Jorge ‘Gordo’
Paredes-Cordova — whose nickname means “Fatso’ in English — shuddered, shook his head
and grabbed a tissue to wipe tears from his eyes after hearing the hefty sentence imposed.”).
7
Press Release, U.S. Attorney’s Office, Manhattan Federal Jury Finds Cocaine Kingpin
Guilty on Narcotics Importation and Distribution Charges (Nov. 6, 2009) available at
http://www.justice.gov/usao/nys/pressreleases/November09/paredescordovajorgemarioverdi
ctpr.pdf.
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Moussaoui, for his participation in the attacks of September 11, 2001;8 the
open sentencing proceeding held in the Southern District of New York for
Mohamed al-‘Owhali, Khalfan Khamis Mohamed, Mohamed Odeh and
Wadih el-Hage, for their roles in the 1998 bomb attacks on American
embassies in Kenya and Tanzania;9 the open trial and sentencing proceeding
held in the Southern District of New York for Ramzi Yousef, for his role in
the 1993 bombing of the World Trade Center;10 the open trial held in the
Northern District of Illinois for Al Capone;11 the open sentencing proceeding
8
First U.S. Trial of 9/11 Case Was Full of Surprises, Associated Press, available at
http://www.msnbc.msn.com/id/34001021/ns/us_news-security/ (last visited Feb. 28, 2011)
(describing six-week sentencing trial, including Moussaoui’s demeanor and occasional
outbursts, and quoting the lead prosecutor: “A valuable part of the Moussaoui trial was that
we got an unvarnished, public view of this guy . . . of what we’re up against.” (alterations in
original)); Neil A. Lewis, One Last Appearance, and Outburst, From Moussaoui, N.Y. Times,
May 5, 2006, available at 2006 WLNR 7711531 (“Judge Brinkema was clearly angered that
when the jury spared Mr. Moussaoui's life on Wednesday, he exulted, ‘America, you lost,’ and
said he had won.”).
9
Elizabeth Neuffer, Four Get Life for Embassy Attacks, Boston Globe, Oct. 19, 2001,
available at 2001 WLNR 2230485 (“In a session fraught with emotion — and carried out
under heightened security — Judge Leonard Sands levied the same stiff sentences on all men
although two had been eligible for shorter terms. . . . [T]he shadow of the [September 11, 2001]
terrorist attack on New York and Washington . . . hung over the court session, both literally
and figuratively. The courthouse was wreathed in the acrid stench still emanating from
ground zero. Gun-toting US marshals with bomb-sniffing dogs, signs of New York’s increased
security awareness, stood watch on the courthouse steps.”).
10
See Benjamin Weiser, Mastermind Gets Life for Bombing of Trade Center, N.Y.
Times, Jan. 9, 1998, available at 1998 WLNR 2795240 (“Mr. Yousef wore a dark gray suit and
a new growth of beard. He strode to the lectern when offered a chance to speak by the judge,
and began to attack the United States and Israel, the peace process in the Middle East and
the ‘Jewish lobby,’ which he said paid bribes to American officials to win their influence.”).
11
See Meyer Berger, Capone Convicted of Dodging Taxes; May Get 17 Years, N.Y.
Times, Oct. 17, 1931, available at http://www.nytimes.com/learning/general/onthisday/big/
1017.html (describing Capone’s demeanor after the jury went to deliberate: “Capone, looking
like a head barber off to meet his best girl, stood in the corridor after the jury went out. He
was smiling, but the smile seemed the equivalent of the quavery music of the whistler passing
the graveyard,” as well as Capone’s demeanor upon hearing the jury verdict: “He kept grinning
at all and sundry in the court room, his bulky figure in a screaming green suit (one of the $135
ones) drawing all eyes toward him.”).
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held in the Eastern District of New York for John Gotti;12 and the open trial
and sentencing of Timothy McVeigh for his role in the 1995 bombing of the
Alfred P. Murrah Federal Building in Oklahoma City.13
Second, public access plays a “significant positive role,” Press-
Enterprise II, 478 U.S. at 8-9, in a sentencing hearing. In particular, the
Supreme Court has recognized several interrelated ways in which openness
is beneficial in a criminal trial. See Richmond Newspapers, Inc., 448 U.S. at
593-97. The recognized benefits of having open trials also apply in the
context of sentencing proceedings.
To begin with,“[t]he knowledge that every criminal trial is subject to
contemporaneous review in the forum of public opinion is an effective
restraint on possible abuse of judicial power . . . .” Richmond Newspapers,
Inc., 448 U.S. at 596 (quoting In re Oliver, 333 U.S. 257, 270 (1948))
(quotation marks omitted); see also Globe Newspaper Co., 457 U.S. at 606
(“[I]n the broadest terms, public access to criminal trials permits the public
to participate in and serve as a check upon the judicial process — an
12
See Arnold H. Lubasch, Gotti Sentenced to Life in Prison Without the Possibility of
Parole, N.Y. Times, June 24, 1992, available at 1992 WLNR 3331979 (“Judge I. Leo Glasser
sentenced the convicted boss of the Gambino crime family in a courtroom so packed that
James M. Fox, the head of the New York office of the F.B.I., was wedged next to Joseph
DeCicco, a reputed Gambino associate.”).
13
See Michael Fleeman, McVeigh Team Rips Witness, Rests Case, New Orleans Times
Picayune, May 29, 1997, available at 1997 WLNR 1109708 (“After the last piece of defense
evidence was introduced, McVeigh whispered to [one of his attorneys], then sat cross-legged
at the defense table, his hands tightly clasped in front of his chin.”); Peter G. Chronis and
Howard Pankratz, Tearful Parents Beg for Son’s Life as Timothy McVeigh’s Fate Goes to Jury
Today, The Denver Post, June 12, 1997, available at 1997 WLNR 542338 (describing “tearful
pleas from [McVeigh’s] parents to spare him” from the death penalty, and adding that “[a]s
[his mother] choked back tears, McVeigh looked flushed, clasping his hands tightly together
against the lower part of his face.”).
.
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essential component in our structure of self-government.”). The need for
such a restraint is also present in the sentencing context. “The presence of
the public operates to check any temptation that might be felt by either the
prosecutor or the court . . . to seek or impose an arbitrary or disproportionate
sentence.” In re Washington Post Co., 807 F.2d at 389. Indeed, the fact that
there is no jury at the sentencing proceeding, in contrast to jury trials,
heightens the need for public access. Cf. Press-Enterprise II, 478 U.S. at 12-
13 (“[T]he absence of a jury, long recognized as ‘an inestimable safeguard
against the corrupt or overzealous prosecutor and against the compliant,
biased, or eccentric judge,’ . . . makes the importance of public access to a
preliminary hearing even more significant.” (quoting Duncan v. Louisiana,
391 U.S. 145, 156 (1968)).).
Relatedly, openness in a trial builds public confidence in the criminal
justice system because members of the public can observe whether justice is
being carried out in adjudicating guilt or innocence. Richmond Newspapers,
Inc., 448 U.S. at 595 (“Open trials assure the public that procedural rights
are respected, and that justice is afforded equally. Closed trials breed
suspicion of prejudice and arbitrariness, which in turn spawns disrespect for
law.”). Likewise, openness in the sentencing context allows the public to
observe whether the defendant is being justly sentenced, especially where
the court, rather than a jury, is determining the sentence. Eppinger, 49 F.3d
at 1253 (“The public must have the opportunity to observe and criticize the
judiciary in the operation of its duties. In sentencing, unlike other aspects of
criminal proceedings, it is the distinct province of the court to determine
what constitutes [a] proper sentence.” (quoting United States v. Carpentier,
526 F. Supp. 292, 295 (E.D.N.Y. 1981))); In re Washington Post Co., 807 F.2d
at 389.
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Similarly, openness of a proceeding also promotes more accurate fact-
finding, either because witnesses are more hesitant to commit perjury in a
proceeding open to the public, or because “key witnesses unknown to the
parties” may learn about a trial if it is public. Richmond Newspapers, Inc.,
448 U.S. at 596-97. As there may well be witnesses and contested issues of
fact in a sentencing proceeding, see Alcantara, 396 F.3d at 198 (explaining
that in both trials and sentencing proceedings, “[t]he defendant . . . can
present evidence, call witnesses, and cross-examine government witnesses”),
this rationale applies in a sentencing proceeding as much as it applies in a
trial.
Relatedly, the Supreme Court has explained that “[u]nderlying the
First Amendment right of access to criminal trials is the common
understanding that ‘a major purpose of that Amendment was to protect the
free discussion of governmental affairs,’” Globe Newspaper Co., 457 U.S. at
604 (quoting Mills v. Alabama, 84 U.S. 214, 218 (1966)), and “to ensure that
this constitutionally protected ‘discussion of governmental affairs’ is an
informed one,” id. at 605. This rationale also applies in the sentencing
context. For example, allowing the public “to see the application of
sentencing laws in person is important to an informed public debate over
these laws.” Alcantara, 396 F.3d at 199 (citing Kate Stith & José A.
Cabranes, Fear of Judging: Sentencing Guidelines in the Federal Courts 85
(1998)).
Finally, there is a “community therapeutic value” to having an open
proceeding, because of the concerns and emotions of members of the public
who have been affected by a crime or crimes. Richmond Newspapers, Inc.,
448 U.S. at 570. “When a shocking crime occurs, a community reaction of
outrage and public protest often follows. Thereafter the open processes of
justice serve an important prophylactic purpose, providing an outlet for
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community concern, hostility, and emotion.” Id. at 571 (citation omitted);
see, e.g., Mark Eddy et al., Guilty on Every Count, Denver Post, June 3, 1997,
available at http://extras.denverpost.com/ bomb/bombv1.htm (describing the
reaction of survivors of the 1995 Oklahoma City bombing upon hearing that
the jury had found Timothy McVeigh guilty on all counts: “survivors rushed
into the hall outside the courtroom where they cried, hugged and tried to
console each other as this chapter in the bombing tragedy drew to a close”).
This rationale applies as strongly in a sentencing proceeding as it does in a
trial. Alcantara, 396 F.3d at 198; see, e.g., Benjamin Weiser, Mastermind
Gets Life for Bombing of Trade Center, N.Y. Times, Jan. 9, 1998, available at
1998 WLNR 2795240 (“Several victims of the [1993 World Trade Center]
blast attended the [sentencing proceeding of Ramzi Yousef]. One, Charles
Maikish, a former [World] Trade Center official, nearly broke down as he
addressed the court on behalf of the families, reading a list of the names of
each victim who had died in the bombing. Patricia Smith, whose pregnant
daughter-in-law, Monica Smith, was killed in the explosion, did not speak in
court but glared at Mr. Yousef’s back as he stood just a few feet in front of
her, addressing the judge. Later, Ms. Smith said she wanted to hit him with
her cane.”).
In sum, we conclude, as have the other courts of appeals that have
addressed this issue, that the press and public have a First Amendment
right of access to sentencing proceedings.14
14
We do not, however, call into question “the practice of keeping presentence reports
confidential,” CBS, Inc., 765 F.2d at 826, which is a distinct issue for multiple reasons. First,
in contrast to sentencing proceedings, “[presentence] reports themselves have historically been
treated as confidential . . . .” United States v. Huckaby, 43 F.3d 135, 138 (5th Cir. 1995).
Moreover, unlike with sentencing proceedings, “[t]he Federal Rules of Criminal Procedure
expressly provide for limited [public] access to information contained in presentence reports.”
CBS, Inc., 765 F.2d at 826.
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No. 10-40221
C. Notice and an opportunity to be heard
Because there is a First Amendment right of access to sentencing
proceedings, there is a presumption that they should remain open, absent
specific, substantive findings made by the district court that closure is
necessary to protect higher values and is narrowly tailored to serve such
goals:
[T]he 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.
Press-Enterprise II, 478 U.S. at 9-10 (quoting Press-Enterprise I, 464 U.S. at
510) (quotation marks omitted). In making its findings, the court must
consider any “reasonable alternatives to closure.” Press-Enterprise II, 478
U.S. at 14 (citing Press-Enterprise I, 464 U.S. at 510; Richmond Newspapers,
Inc., 448 U.S. at 581); see also Edwards, 823 F.2d at 119 (“Press [Enterprise]
II requires, if closure of a presumptively open proceeding is to withstand a
[F]irst [A]mendment challenge, that the court make specific, on-the-record,
factfindings demonstrating that a substantial probability exists that an
interest of a higher value will be prejudiced and that no reasonable
alternatives to closure will adequately protect that interest.”). If the court
decides to close a proceeding, it must then make the “transcript of the closed
proceedings available within a reasonable time . . . .” Press-Enterprise I, 464
U.S. at 512.
In this case, we do not reach the question of whether the district
court’s decision to close Cardenas-Guillen’s sentencing proceeding was
substantively correct. The Chronicle does not challenge this. Rather, the
Chronicle is challenging the district court’s refusal to follow two procedural
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No. 10-40221
requirements before closing the sentencing of Cardenas-Guillen: (1) to give
public notice of contemplated closure of the proceeding, and (2) to give
interested parties, such as the Chronicle, an opportunity to be heard before
the sentencing proceeding was closed.
Those procedural requirements stem from the Supreme Court’s dictate
that trial courts should make determinations about closure “on a case-by-
case basis.” Globe Newspaper Co., 457 U.S. at 609. The Court explained
that “[o]f course, for a case-by-case approach to be meaningful,
representatives of the press and general public ‘must be given an opportunity
to be heard on the question of their exclusion.’” Id. at 609 n.25 (quoting
Gannett Co. v. DePasquale, 443 U.S. 368, 401 (1979) (Powell, J., concurring));
see also Edwards, 823 F.2d at 119 (“In requiring a case-by-case resolution of
the issues concerning closure of presumptively open proceedings, the Globe
Court noted that, for this approach to be effective, ‘the press and general
public must be given an opportunity to be heard on the question of their
exclusion.’” (quoting Globe Newspaper Co., 457 U.S. at 609 n.25)).
The courts of appeals that have addressed the question of whether
notice and an opportunity to be heard must be given before closure of a
proceeding or sealing of documents to which there is a First Amendment
right of access, have uniformly required adherence to such procedural
safeguards. See, e.g., Alcantara, 396 F.3d at 200 (“[A] motion for courtroom
closure should be docketed in the public docket files . . . . Entries on the
docket should be made promptly, normally on the day the pertinent event
occurs . . . . We think this type of general public notice suffices to afford an
adequate opportunity for challenge to courtroom closure.” (quoting In re
Herald Co., 734 F.2d at 102-03)); Phoenix Newspapers, Inc. v. U.S. Dist. Ct.,
156 F.3d 940, 949 (9th Cir. 1998) (“[I]f a court contemplates sealing a
document or transcript, it must provide sufficient notice to the public and
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press to afford them the opportunity to object or offer alternatives. If
objections are made, a hearing on the objections must be held as soon as
possible.”); Oregonian Publ’g Co., 920 F.2d at 1466 (9th Cir. 1998) (affirming
previous holding that “those excluded from the proceeding must be afforded a
reasonable opportunity to state their objections” (citing Brooklier, 685 F.2d
at 1167-68; In re Washington Post Co., 807 F.2d at 390-91)); United States v.
Valenti, 987 F.2d 708, 713 (11th Cir. 1993) (explaining that giving “notice
and an opportunity to be heard on a proposed closure” is required prior to
closing a “historically open process where public access plays a significant
role”); Robinson, 935 F.2d at 289 (explaining that before a plea agreement is
sealed, “(1) [t]he government must file a written motion to seal the plea
agreement and notice of that motion must be entered in the public docket;
[and] (2) [t]he trial court must promptly allow interested persons an
opportunity to be heard before ruling on the motion and entering the sealing
order”); In re Washington Post Co., 807 F.2d at 390 (holding that before
making specific findings in conjunction with an order to close a proceeding or
seal documents, the district court must docket closure motions “‘reasonably
in advance of their disposition’” in order to give the press and public notice
and then “provide interested persons ‘an opportunity to object to the request
before the court ma[kes] its decision’” (quoting In re Knight Publ’g Co., 743
F.2d at 234-35)); Criden, 675 F.2d at 559-60 (holding that in order to provide
notice, “[t]he district courts should take whatever steps are necessary to
ensure that the docket entries are made a reasonable time before the closure
motion is acted upon” and explaining that doing so would allow “the public
and press . . . to take timely action if they wished”). Furthermore, the
Department of Justice has issued “guidelines [that] generally prohibit a
government attorney from consenting to[, inter alia,] a closed plea or
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sentencing proceeding when the public has not been given notice of the
proposed closure.” Alcantara, 396 F.3d at 200 n.9 (citing 28 C.F.R. § 50.9).
These procedural requirements are essential to safeguarding the First
Amendment right of access to sentencing proceedings. Given the weight of
the right of access, we agree that courts must provide the press and public
with notice and an opportunity to be heard before closing a sentencing
proceeding,15 because “it seems entirely inadequate to leave the vindication
of a First Amendment right to the fortuitous presence in the courtroom of a
public spirited citizen willing to complain about closure . . . .” Alcantara, 396
F.3d at 199-200 (quoting In re Herald Co., 734 F.2d at 102); see also Criden,
675 F.2d at 559 (“The press should not be expected to ‘camp out’ in the
hallway in order to ascertain whether evidentiary proceedings are being
conducted in chambers.”). These requirements are “not mere punctilios, to
be observed when convenient.” Phoenix Newspapers, 156 F.3d at 951. The
trial court cannot properly weigh the First Amendment right of access
against the interests served by closure, nor can it fully consider alternatives
to closure, without providing notice and an opportunity to be heard to the
press and public:
All too often, parties to the litigation are either indifferent or
antipathetic to disclosure requests. This is to be expected: it is
not their charge to represent the rights of others. However,
balancing interests cannot be performed in a vacuum. Thus,
providing the public notice and an opportunity to be heard
ensures that the trial court will have a true opportunity to weigh
the legitimate concerns of all those affected by a closure decision.
15
We do not speculate on the possibility of whether, in a future case, some circumstance
might arise that could justify a trial court's deciding to give no notice or opportunity to be
heard, of any kind, before closing a sentencing proceeding. As we explain below, the
circumstances of this case were not sufficient to justify such a decision. Any decision to deny
all notice and opportunity to be heard would have to be justified under the balancing test of
Mathews v. Eldridge, 424 U.S. 319, 335 (1976), which we refer to later in this opinion.
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Id.
The importance of these requirements, however, does not preclude a
trial court from choosing among various options, given the circumstances
and interests involved in a particular case, to determine how it will provide
notice and an opportunity to be heard. For example, in giving the press and
public notice that a proceeding may be closed, the trial court may choose to
docket the motion. See, e.g., Alcantara, 396 F.3d at 200; Robinson, 935 F.2d
at 288. The trial court may do that, or it may decide that security or other
concerns warrant declining to reveal what kind of proceeding is going to be
closed and simply place a notice on the docket that there is a motion to close
a proceeding, leaving the parties to submit arguments regarding the various
proceedings that could hypothetically be closed. Relatedly, the trial court
may decide to disclose all, some, or none of what is contained in the motion to
close. Cf. Robinson, 935 F.2d at 290 (“We fail to see anything in this case
that would have precluded the government from filing a written motion to
seal (notice of which would be entered on the public docket), with the plea
agreement attached, and then asking the court to seal both the motion and
the plea agreement pending final disposition. This would have protected the
secrecy of the plea agreement until the court ruled on the motion after
hearing from interested parties.”); In re Washington Post Co., 807 F.2d at
391 (“A district court considering a motion for closure of hearings for
national security reasons need not divulge the facts of the situation to
persons seeking access to the hearings.”).
Similarly, in giving interested members of the press and public an
opportunity to be heard, the trial court can choose among various options to
determine how to do so in a particular case. At the very least, the trial court
can permit interested parties to submit briefs on whether a proceeding
should be closed. In addition, the trial court may decide to hold a hearing at
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No. 10-40221
which parties can orally argue before the court. Finally, the trial court “may
file its statement of the reasons for its decision under seal” if it deems that
doing so is necessary. In re Washington Post Co., 807 F.2d at 391. This court
can, of course, still review a sealed statement of reasons.
Of course, the fact that a trial court may choose among various options
does not mean that it should automatically choose the most minimal options
available. “[I]dentification of the specific dictates of due process generally
requires consideration of three distinct factors: First, the private interest
that will be affected by the official action; second, the risk of an erroneous
deprivation of such interest through the procedures used, and the probable
value, if any, of additional or substitute procedural safeguards; and finally,
the Government’s interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural
requirement would entail.” Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
Trial courts should weigh these factors in relation to the unique facts of the
case where closure is at issue. Cf. United States v. Abuhamra, 389 F.3d 309,
318-28 (2d Cir. 2004) (applying the Mathews v. Eldridge test by weighing the
defendant’s interest in having notice and an opportunity to be heard, as well
as the public and the defendant’s shared interest in open criminal
proceedings, against the government’s interest in protecting the identity and
safety of confidential witnesses, and concluding that “ex parte submissions in
opposition to bail release . . . should generally not be received or considered
by district courts”). In this appeal, we need not examine the factors in detail,
because the district court gave the press and public no notice, and no
opportunity to be heard, whatsoever. Regardless of exactly what
arrangements would have been sufficient, the district court’s actions did not
provide even a minimal level of due process before closing the sentencing
proceeding.
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No. 10-40221
The government does not dispute that notice and an opportunity to be
heard should generally be afforded to the press and public before the closure
of a proceeding to which a First Amendment right of access attaches.
Instead, the government advances two alternative arguments: (1) that the
security concerns of this case were such that the district court was excused
from giving notice and an opportunity to be heard; and (2) in the alternative,
that the district court essentially gave the Chronicle an opportunity to be
heard because it took into account the Chronicle’s February 9, 2010 motion
to intervene and the Chronicle’s October 30, 2009 letter, which was attached
to the motion to intervene, when it closed the sentencing proceeding. We
address each argument in turn.
First, we conclude that the security concerns raised by the government
in this case did not justify the district court’s decision not to give the press
and public any notice or opportunity to be heard prior to closure. At the
sentencing proceeding, the district court gave two rationales for its decision
to seal the government’s motion to close the sentencing proceeding: “failure
to seal the United States’ motion to seal will result in a substantial
probability that the lives and safety of persons will be placed in danger and
that ongoing investigations will be jeopardized.” The government contends
that holding a preclosure hearing would have endangered Cardenas-Guillen,
courthouse and United States Marshals Service personnel, and members of
the public in the courthouse, because of the possibility of an attack on the
courthouse due to Cardenas-Guillen’s presence during such a hearing, as
well as the possibility of attack while transporting Cardenas-Guillen to and
from the courthouse. While this concern is understandable, it did not
preclude giving notice and an opportunity to be heard. For instance, the
district court could have simply given notice that the government had filed a
sealed motion to close the upcoming sentencing proceeding, and given the
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No. 10-40221
press and public an opportunity to be heard by inviting any interested
parties to write and express their opposition. Anyone who wanted to see the
government’s sealed motion before filing an opposing motion could also have
filed a motion to do so, which the district court could have granted or denied
in the exercise of its sound discretion.
Neither did the district court’s concern about jeopardizing ongoing
investigations preclude it from giving notice and an opportunity to be heard
in this case. The district court noted at sentencing that pursuant to the
government’s request, it would not docket the proceeding or make the
transcript available until the United States Marshals Service informed the
district court “that the . . . possibility of substantial danger or substantial
possibility of danger imminent — the public being placed in imminent
danger has passed . . . .” And, as the government noted in its brief, the
docket shows (1) that the proceeding was docketed within hours of the end of
the hearing; (2) that the hearing and transcript were made available to the
public; and (3) that the Chronicle ordered a copy of the transcript, which was
completed by the next day. The fact that the government requested for the
sentencing to occur, and that it did not object to the docketing of the
proceeding within hours of the hearing and the release of the transcript the
next day, shows that at some point before the sentencing proceeding, the
government had resolved any concerns it had regarding ongoing
investigations. After the government resolved those concerns, instead of
immediately holding the sentencing proceeding, the district court could
instead have given notice and an opportunity to be heard on whether the
sentencing should be closed. It would have been no more harmful with
regard to ongoing investigations for the district court to take these steps —
thereby providing notice and an opportunity to be heard — than to do what it
actually did.
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No. 10-40221
In sum, the government’s contention that security concerns justified
the lack of notice and an opportunity to be heard prior to closure of the
sentencing proceedings is unpersuasive. The district court had multiple
options available to it for providing notice and an opportunity to be heard
prior to closure, while also accommodating the security concerns raised by
the government.16
The government argues in the alternative that even if the district court
was required to give notice and an opportunity to be heard before closing the
sentencing proceeding, the district court essentially gave the Chronicle such
an opportunity to be heard. Specifically, the government contends that the
district court was aware of, and stated that it had considered, the Chronicle’s
February 9, 2010 motion to intervene and the letter from the Chronicle dated
October 30, 2009, which was attached to the motion to intervene. Thus, the
government concludes, the district court was not required to “hold a hearing
and write redundant findings of fact that merely reiterate truisms.” Gov. Br.
25, 37 (quoting Edwards, 823 F.2d at 119 (quotation marks omitted)).
We are not persuaded by this argument. The February 9, 2010 motion
filed by the Chronicle did not deal with closure of any proceedings. Instead,
it contained a motion to intervene and arguments against continued sealing
of documents. The Chronicle did not have notice of what was happening: it
did not know that there would be an upcoming sentencing hearing or any
other proceeding. The arguments in its February 9, 2010 motion dealt with
what the Chronicle knew was happening — the continued sealing of
16
We note that in its brief, the government cited to but did not explicitly discuss
another security concern, which was outlined in the government’s sealed filings to the district
court. We conclude that there are options among those we have discussed here that would
have adequately addressed that concern while also providing the public and press with notice
and an opportunity to be heard. Thus, that security concern does not justify the failure to
provide notice and an opportunity to be heard.
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No. 10-40221
documents, not the closure of a sentencing hearing. Even the October 30,
2009 letter only makes a general argument that notice should be given if
closure of a proceeding was contemplated at some point in the future. The
Chronicle had no notice and was not given the opportunity to make
arguments addressing precedents regarding access to and closure of
sentencing proceedings; to argue that openness is important in proceedings
in this particular case, a case of great public importance; or to suggest more
narrowly tailored alternatives to closure. Moreover, it would be perverse to
hold that the district court fulfilled its obligation to provide notice and an
opportunity to be heard in this case because the Chronicle’s reporter
“‘camp[ed] out’ in the hallway,” Criden, 675 F.2d at 559, and its attorneys
sent the court anticipatory requests asking for notice and an opportunity to
be heard if a proceeding were to be closed. The court is not relieved from its
duty to adhere to due process requirements, in order to safeguard the First
Amendment right of access, by the fact that a newspaper, out of an
abundance of caution, took some steps to attempt to secure that right.
We conclude that the district court did not give the Chronicle notice
and an opportunity to be heard before closing the sentencing proceeding.
Thus, the district court deprived the Chronicle of its First Amendment right
without following the proper procedures — i.e., without due process.
CONCLUSION
We conclude (1) that this court has jurisdiction over the case, because
it falls within the exception to mootness for issues that are capable of
repetition, yet evading review; (2) that the press and the public have a First
Amendment right of access to a sentencing proceeding; and (3) that the
district court deprived the Chronicle of its First Amendment right of access
without due process in refusing to give the press and public, including the
Chronicle, notice and an opportunity to be heard before closing the
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No. 10-40221
sentencing proceeding. Because the sentencing of Cardenas-Guillen has
already occurred, we simply REVERSE the district court’s orders of
February 24, 2010 (as amended by the March 2, 2010 order) and of February
26, 2010, denying the Chronicle’s requests for notice and an opportunity to
be heard prior to closure, as well as the district court’s February 24, 2010
order (as amended by the March 2, 2010 order) denying the Chronicle’s
motion to open the sentencing proceeding. See Press-Enterprise II, 478 U.S.
at 15 (reversing because the lower court “failed to consider the First
Amendment right of access to criminal proceedings”); Richmond Newspapers,
Inc., 448 U.S. at 580-81 (reversing where “trial judge made no findings to
support closure; no inquiry was made as to whether alternative solutions
would have met the need to ensure fairness; there was no recognition of any
right under the Constitution for the public or press to attend the trial”). We
do not decide whether the district court’s decision to close the sentencing
proceeding was substantively wrong, but we reverse the order denying the
motion to open the sentencing proceeding because the district court did not
follow the required procedures before rendering its decision to close. See In
re Washington Post Co., 807 F.2d at 393.
It is so ordered.
28