Ashcraft v. Conoco, Inc.

Filed: July 26, 2000

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Nos. 98-1212(L)
(CA-95-187-BR3-7)

Hurshel L. Ashcraft, et al,

Plaintiffs,

versus

CONOCO, Incorporated,

Defendant - Appellee,

Wilmington Star-News, Incorporated,

Appellant.

O R D E R

The court amends its opinion filed July 6, 2000, as follows:

On page 31, second full paragraph, line 2 -- the phrase “an

did not give ....” is corrected to read “and did not give ....”

For the Court - By Direction

/s/ Patricia S. Connor
Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

HURSHEL L. ASHCRAFT, et al.,
Plaintiffs,

v.

CONOCO, INCORPORATED,
Defendant-Appellee,

WILMINGTON STAR-NEWS,
INCORPORATED,
Appellant,

and

KAYO OIL COMPANY; TRIANGLE
FACILITIES, INCORPORATED,
Defendants.
No. 98-1212

ASSOCIATED PRESS; THE NEWS &
OBSERVER; THE CHARLOTTE
OBSERVER; THE BALTIMORE SUN
COMPANY; RICHMOND TIMES-
DISPATCH; THE MCGRAW-HILL
COMPANIES, INCORPORATED; THE
WASHINGTON POST; GANNETT
COMPANY, INCORPORATED; DOW JONES
AND COMPANY, INCORPORATED; NORTH
CAROLINA PRESS ASSOCIATION; THE
REPORTERS COMMITTEE FOR FREEDOM
OF THE PRESS,
Amici Curiae.
HURSHEL L. ASHCRAFT, et al.,
Plaintiffs,

v.

CONOCO, INCORPORATED,
Defendant-Appellee,

KIRSTEN B. MITCHELL,
Appellant,

and

KAYO OIL COMPANY; TRIANGLE
FACILITIES, INCORPORATED,
Defendants.
No. 98-1213
ASSOCIATED PRESS; THE NEWS &
OBSERVER; THE CHARLOTTE
OBSERVER; THE BALTIMORE SUN
COMPANY; RICHMOND TIMES-
DISPATCH; THE MCGRAW-HILL
COMPANIES, INCORPORATED; THE
WASHINGTON POST; GANNETT
COMPANY, INCORPORATED; DOW JONES
AND COMPANY, INCORPORATED; NORTH
CAROLINA PRESS ASSOCIATION; THE
REPORTERS COMMITTEE FOR FREEDOM
OF THE PRESS,
Amici Curiae.

2
HURSHEL L. ASHCRAFT, et al.,
Plaintiffs,

v.

CONOCO, INCORPORATED,
Defendant-Appellee,

WILMINGTON STAR-NEWS,
INCORPORATED,
Appellant,

and

KAYO OIL COMPANY; TRIANGLE
FACILITIES, INCORPORATED,
Defendants.
No. 98-1448

ASSOCIATED PRESS; THE NEWS &
OBSERVER; THE CHARLOTTE
OBSERVER; THE BALTIMORE SUN
COMPANY; RICHMOND TIMES-
DISPATCH; THE MCGRAW-HILL
COMPANIES, INCORPORATED; THE
WASHINGTON POST; GANNETT
COMPANY, INCORPORATED; DOW JONES
AND COMPANY, INCORPORATED; NORTH
CAROLINA PRESS ASSOCIATION; THE
REPORTERS COMMITTEE FOR FREEDOM
OF THE PRESS,
Amici Curiae.

3
HURSHEL L. ASHCRAFT, et al.,
Plaintiffs,

v.

CONOCO, INCORPORATED,
Defendant-Appellee,

KIRSTEN B. MITCHELL,
Appellant,

and

KAYO OIL COMPANY; TRIANGLE
FACILITIES, INCORPORATED,
Defendants.
No. 98-1449
ASSOCIATED PRESS; THE NEWS &
OBSERVER; THE CHARLOTTE
OBSERVER; THE BALTIMORE SUN
COMPANY; RICHMOND TIMES-
DISPATCH; THE MCGRAW-HILL
COMPANIES, INCORPORATED; THE
WASHINGTON POST; GANNETT
COMPANY, INCORPORATED; DOW JONES
AND COMPANY, INCORPORATED; NORTH
CAROLINA PRESS ASSOCIATION; THE
REPORTERS COMMITTEE FOR FREEDOM
OF THE PRESS,
Amici Curiae.

4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.

KIRSTEN B. MITCHELL,
Defendant-Appellant,

ASSOCIATED PRESS; THE NEWS &
OBSERVER; THE CHARLOTTE
OBSERVER; THE BALTIMORE SUN
No. 98-4158
COMPANY; RICHMOND TIMES-
DISPATCH; THE MCGRAW-HILL
COMPANIES, INCORPORATED; THE
WASHINGTON POST; GANNETT
COMPANY, INCORPORATED; DOW JONES
AND COMPANY, INCORPORATED; NORTH
CAROLINA PRESS ASSOCIATION; THE
REPORTERS COMMITTEE FOR FREEDOM
OF THE PRESS,
Amici Curiae.

Appeals from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
W. Earl Britt, Senior District Judge.
(CA-95-187-BR3-7)

Argued: October 27, 1998

Decided: July 6, 2000

Before WIDENER and LUTTIG, Circuit Judges, and
Catherine C. BLAKE, United States District Judge
for the District of Maryland,
sitting by designation.

_________________________________________________________________

Reversed by published opinion. Judge Luttig announced the judgment
of the court and wrote an opinion for the court in Parts I, IIB, IIC, and

5
III, in which Judge Blake joined, and in Part III, in which Judge Wid-
ener joined in part. Judge Blake wrote an opinion concurring in part.
Judge Widener wrote a concurring and dissenting opinion.

_________________________________________________________________

COUNSEL

ARGUED: Floyd Abrams, CAHILL, GORDON & REINDEL, New
York, New York, for Appellants. Jonathan Drew Sasser, MOORE &
VAN ALLEN, P.L.L.C., Raleigh, North Carolina, for Appellee Con-
oco; David William Long, POYNER & SPRUILL, L.L.P., Raleigh,
North Carolina, for Appellee United States. ON BRIEF: Landis C.
Best, CAHILL, GORDON & REINDEL, New York, New York;
George Freeman, Assistant General Counsel, THE NEW YORK
TIMES CO., New York, New York; Mark J. Prak, BROOKS,
PIERCE, MCLENDON, HUMPHREY & LEONARD, L.L.P.,
Raleigh, North Carolina; Stephen T. Smith, MCMILLAN, SMITH &
PLYLER, Raleigh, North Carolina, for Appellants. David E. Fox,
Andrew B. Cohen, MOORE & VAN ALLEN, P.L.L.C., Raleigh,
North Carolina; George A. Phair, Senior Counsel, CONOCO, INC.,
Houston, Texas, for Appellee Conoco. Rodney A. Smolla, Marshall-
Wythe School of Law, COLLEGE OF WILLIAM AND MARY, Wil-
liamsburg, Virginia, for Amici Curiae.

_________________________________________________________________

OPINION

LUTTIG, Circuit Judge:

The United States District Court for the Eastern District of North
Carolina held Kirsten B. Mitchell, a reporter for the Wilmington,
North Carolina Morning Star newspaper, in criminal contempt under
18 U.S.C. § 402 and civil contempt under 18 U.S.C. § 401 for open-
ing an envelope, in which was enclosed a confidential settlement
agreement, and reading the agreement, which had been placed under
seal by the district court. The district court held the Morning Star in
civil contempt under 18 U.S.C. § 401 for reporting the previously
confidential settlement amount and imposed upon the newspaper,

6
joint and severally with Mitchell, a fine of $600,000. Both Mitchell
and the Morning Star appeal from the district court's contempt orders.

We conclude -- and conclude that it could not reasonably be found
otherwise -- that the "decree" that Mitchell allegedly violated was not
a bona fide decree of a court, and that even if it were, not only was
the decree insufficiently specific to support a criminal contempt con-
viction, but Mitchell also did not act with the contumaciousness nec-
essary to prove criminal contempt. We therefore reverse Mitchell's
criminal conviction. We also reverse the district court's orders of civil
contempt against both Mitchell and the Morning Star because the
sealing order upon which these punishments were premised failed to
comply with the requirements of our decision in In re Knight Publish-
ing Company, 743 F.2d 231 (4th Cir. 1984).

I.

Plaintiff-appellee Conoco, Inc., and two of its subsidiaries (herein-
after "Conoco") were sued five years ago by 178 trailer park residents
in Wilmington, North Carolina, for allegedly contaminating the resi-
dents' drinking-water supply. The liability phase of this lawsuit con-
cluded with a jury verdict in the residents' favor that found Conoco
liable for both compensatory and punitive damages. Before the jury
concluded its deliberations on the amount of punitive damages to be
awarded, however, Conoco and the residents reached a comprehen-
sive and confidential settlement of the dispute in the amount of $36
million.

In order to preserve the confidentiality of the settlement terms,
Conoco and the residents moved the district court for permission to
file and maintain the settlement agreement and related documents
under seal. Four days later, on September 22, 1997, without having
provided public notice or an opportunity for interested parties to
object, the district court granted the motion "for good cause shown"
in a two-page order which was entered on the court's docket. J.A. 67-
68; 46-47. The settlement documents were thereafter delivered to the
district court in a closed white envelope, after which time the court
opened the envelope, signed the settlement agreement to indicate its
approval, and returned the agreement to the original envelope. The

7
envelope was then delivered to the clerk's office to be placed with the
other documents related to the case. J.A. 77, 164.

Less than one month later, the Morning Star published a story dis-
closing the $36 million settlement amount agreed upon by Conoco
and the plaintiff-residents and memorialized in the settlement agree-
ment between the parties. The story reported that "[s]ources familiar
with the settlement revealed its terms on condition of anonymity."
J.A. 432. It further reported that "[a] document confirming the settle-
ment amount was among public documents given to a Morning Star
reporter [. . .] by a clerk at the federal courthouse in Raleigh." J.A.
432.1 The reporter referenced in the story was defendant-appellant
Kirsten B. Mitchell.

The day before the story ran in the Morning Star, Mitchell, who
previously had had no involvement with the case between Conoco
and the residents, J.A. 267, had been asked by her editor to go to the
clerk's office and review any documents in the case between Conoco
and the residents that had been filed "since the settlement." J.A. 533.
Upon arriving at the clerk's office, Mitchell asked to see
"[e]verything since the settlement" that was in the case file. J.A. 273.
In response, Anne Caviness, the deputy clerk responsible for the case,
brought to the clerk's office counter a "pile of documents," which
included the white envelope containing the sealing order and the con-
fidential settlement agreement at issue in this case.2 Before handing
the pile of documents to Mitchell across the counter, however, Cavi-
ness removed a large brown envelope from the pile, informing Mitch-
_________________________________________________________________

1 The story was written by reporter Cory Reiss, who, using ordinary
reporting methods, learned of the settlement amount through two confi-
dential sources. Reiss was subsequently held in civil contempt by the dis-
trict court for refusing to divulge the identities of his sources. Reiss'
appeal, Ashcraft v. Conoco, Inc., No. 98-2567, is today decided by sepa-
rate opinion.

2 At the contempt hearing, the clerk acknowledged that the confidential
settlement agreement "should not have been included in the documents"
provided to Mitchell. J.A. 172. The clerk explained that she "simply
inadvertently forgot to remove that document from the stack" because,
due to its white color, it had "blended in with all the other documents,"
unlike the brown envelope, which had "clearly stood out." J.A. 173.

8
ell: "You can't have this, this is a sealed document." J.A. 533.
Mitchell responded "That's fine, I don't need to see that." J.A. 273.
According to Caviness, Mitchell assented with "absolutely . . . no
resistance. She was very cooperative." J.A. 182.

Mitchell then took the documents over to a bench in the clerk's
office, and began skimming through them, chronologically "from the
earliest to the most recent," according to her testimony. J.A. 274-75.
When Mitchell came to the white envelope containing the settlement
agreement, she saw the partial word and word "ENED OPENED,"
which appeared in red and white letters through a cellophane window
on the back of the envelope. J.A. 283, 293. As described by the dis-
trict court in its January 1998 order:

The back of the envelope had a flap folded down from the
top and a window centered in the flap with the following let-
ters appearing in red and white: "ENED OPENED". Just
adjacent to the flap appeared the following words in red:
"Caution: The word `OPENED' appears in the window
panel to indicate that the envelope has been opened."

J.A. 533. The envelope flap at this time was in the closed or down
position and was "tacked down" or "sticky," J.A. 281,3 but it is undis-
puted that the envelope had been opened "several times." J.A. 171
(Caviness testimony). Mitchell reached inside the envelope and
removed a document that turned out to be the settlement agreement
between Conoco and the plaintiff-residents. J.A. 292. The district
court's two-page September 22, 1997, sealing order was attached to
the front of the agreement. J.A. 532. The first page of this order
included the case caption and the following heading in bold:
_________________________________________________________________

3 Although the district court described the envelope flap as "sealed,"
J.A. 533, it is undisputed that the original seal had been broken and that
the partial word and word "ENED OPENED" appeared in the window
panel.

9
ORDER GRANTING JOINT MOTION OF PLAINTIFFS AND
DEFENDANTS TO APPROVE
CONFIDENTIAL SETTLEMENT AGREEMENT,
TO DISMISS THIS ACTION AS SETTLED DISCONTINUED
AND ENDED,
AND TO PERMIT FILING AND MAINTENANCE OF
CONFIDENTIAL
SETTLEMENT DOCUMENTS UNDER SEAL

J.A. 67. The second page of the order stated that the settlement agree-
ment and related documents were to "be filed and maintained confi-
dentially under the seal of the Court." J.A. 68. Mitchell testified at the
contempt hearing that she did not recall either seeing or reading the
sealing order. J.A. 282, 292. In its January 1998 civil contempt order,
the district court found by clear and convincing evidence, however,
that Mitchell "saw the order sealing the terms of the Settlement
Agreement." J.A. 534. After reading the settlement agreement and
learning the $36 million figure paid to the plaintiffs by Conoco,
Mitchell returned the document to the white envelope and, according
to her testimony, "flipped [the envelope] over into [her] finished pile."
J.A. 284. Mitchell testified, and the district court did not hold to the
contrary, that she then noticed for the first time that on the front of
the envelope was the following warning in boldface type:

CONFIDENTIAL SETTLEMENT AGREEMENT
FILED UNDER SEAL
TO BE OPENED ONLY BY THE COURT

J.A. 434. This warning had been affixed to the front of the envelope
by a paralegal for Conoco's counsel; the specific language having
been suggested by an employee of the clerk's office. J.A. 158, 226.
The front of the envelope bore no indicia of a judicial order. At no
time did Mitchell attempt to ascertain from the clerk's office whether
the settlement agreement remained under seal. J.A. 534.

Mitchell spent a total of approximately 15-20 minutes looking
through the documents before returning them to the clerk. Mitchell

10
then called her editor at the Morning Star and informed him of what
she had learned. J.A. 289.4

The following day, October 15, the Morning Star ran its story, in
which it disclosed the amount of the $36 million settlement. In the
story, reference was made to a "document confirming the settlement
amount." The referenced document was the confidential settlement
agreement seen by Mitchell the previous day.

Following publication of this story, Conoco moved the district
court for an order requiring Mitchell, Reiss, and the Morning Star to
show cause why they should not be held in contempt of court for vio-
lating the district court's September 22, 1997, sealing order. J.A. 69.
The United States Attorney for the Eastern District of North Carolina
also moved the district court for a show cause order for criminal con-
tempt. J.A. 79. The United States Attorney subsequently withdrew
from the case because the Attorney General of the United States
refused to authorize the prosecution. And the district court appointed
a special counsel to prosecute the criminal contempt charges. J.A.
121-24.

The criminal and civil contempt motions were consolidated and
heard together before the district court on December 17, 1997. At the
conclusion of the hearing, the district court found Reiss and the Morn-
ing Star not guilty of criminal contempt. The district court, however,
found Mitchell guilty of criminal contempt and later fined her $1,000.
J.A. 393, 694. The district court took the civil contempt charges under
advisement, and subsequently issued an order and opinion on January
21, 1998, holding both Mitchell and the Morning Star in civil con-
tempt. See J.A. 528-549, 550-555. The court ordered Mitchell and the
Morning Star, jointly and severally, to pay Conoco $500,000 in dam-
ages, plus costs and attorneys' fees, for a total fine of approximately
$600,000. J.A. 549. Mitchell and the Morning Star appealed.
_________________________________________________________________

4 As a result of Reiss' investigation, the amount of the $36 million set-
tlement was already known to Mitchell's editor at the Morning Star
when he directed her to inspect the documents on file at the clerk's
office. J.A. 290.

11
II.

In order to establish the offense of criminal contempt, the govern-
ment must prove beyond a reasonable doubt that the defendant (1)
violated "a decree" (2) that was "definite, clear, specific, and left no
doubt or uncertainty in the minds of those to whom it was addressed,"
and (3) that, in doing so, the defendant acted "willfully, contuma-
ciously, intentionally, [and] with a wrongful state of mind." United
States v. McMahon, 104 F.3d 638, 642 (4th Cir. 1997) (quoting Rich-
mond Black Police Officers Ass'n v. City of Richmond, 548 F.2d 123,
129 (4th Cir. 1977)). We must in turn sustain a conviction for crimi-
nal contempt if "there is substantial evidence, taking the view most
favorable to the government," to support the conviction. See United
States v. Grubb, 11 F.3d 426, 433 (4th Cir. 1993) (quoting Glasser
v. United States, 315 U.S. 60, 80 (1942)).

A.

The threshold requirement of United States v. McMahon is that
there in fact be a "decree" of the court. The initial question for us,
therefore, is whether the order allegedly violated by Mitchell consti-
tuted a "decree" of the court at all. The special prosecutor argues to
us on appeal that the decree violated by Mitchell was the district
court's two-page order of September 22, 1997, in which the court
granted the parties' joint motion to approve the confidential settle-
ment agreement, to dismiss the action, and to permit filing and main-
tenance of the settlement agreement under seal. Thus, he argues (in
response to Mitchell's suggestion that the exact decree violated was
a "moving target," see Br. for Appellant at 24) that "[t]he `decree'
violated by Mitchell was not a `moving target'-- it was the Order
sealing the Confidential Settlement Agreement," Br. of United States
at 14 (emphasis added), which the special prosecutor confirms one
page earlier in his brief that he understands to be the district court's
two-page sealing order that had been "clipped on top of the Confiden-
tial Settlement Agreement." Id. at 13. The special prosecutor even
represents that he "plainly stated as much in his final argument to the
district court," citing to his remarks that appear on pages 368 and 369
of the joint appendix. Id. at 14-15 (citing J.A. 368-369); compare id.
at 5 (citing different passage from colloquy with district court relating
to the government's argument as to Reiss, see note 6 infra, for same

12
proposition that government argued to court that the sealing order was
the decree violated). And he contends that "[t]he district court . . .
never held that the admonition on the printed envelope was, by itself,
the court order that was the subject of the contempt." Id. at 15 n.7;
compare id. at 5 ("[T]he district court made clear that the judicial
order which was violated and which constituted the basis of the con-
tempt proceeding was the Order, which sealed the Confidential Settle-
ment Agreement." (citations omitted)); see also Br. of Conoco at 19
("The district court never held that the admonition on the printed
envelope was, by itself, a court order which Appellants were required
to obey.").

It is beyond question, however, not only that special prosecutor did
not argue before the district court that the decree violated was the
two-page sealing order, but also that the district court did not rest its
criminal contempt finding upon a violation of the two-page sealing
order.

The special prosecutor did not argue to the district court that the
decree violated was the two-page sealing order clipped to the settle-
ment agreement. Rather, on the very pages from the joint appendix to
which he now cites the court, although he commented at length that
the two-page order was in the white envelope and that it was clipped
to the settlement agreement -- intentionally implying, but never actu-
ally stating that Mitchell had seen the two-page order -- the special
prosecutor quite plainly argued that the "decree" violated was that that
appeared on the front of the white envelope, which reads "CONFI-
DENTIAL SETTLEMENT AGREEMENT. FILED UNDER SEAL.
TO BE OPENED ONLY BY THE COURT.", not the two-page seal-
ing order attached to the settlement agreement:

After looking through the settlement agreement and, by her
language, confirming the amount of the settlement agree-
ment, she then turned the envelope over and, if it wasn't
clear to her before that that document was under seal, it
should have been clear afterwards because the document in
no uncertain terms, and this is the definite, clear, specific,
and left no doubt or uncertainty in the minds to those whom
it was addressed. It said, "CONFIDENTIAL SETTLEMENT

13
 AGREEMENT FILED UNDER SEAL. TO BE OPENED
ONLY BY THE COURT."

J.A. 369 (statements of Special Prosecutor Long); compare Br. of
United States at 16 ("The Order was definite and clear. In its caption,
the Order states "ORDER GRANTING MOTION . . . TO PERMIT
FILING AND MAINTENANCE OF CONFIDENTIAL SETTLE-
MENT DOCUMENTS UNDER SEAL."). Thus, at the precise
moment when the special prosecutor apprised the court of the order
that he contended satisfied the McMahon requirement that the decree
be "definite, clear, specific, and le[ave] no doubt or uncertainty in the
minds of those to whom it was addressed," the special prosecutor
identified not the two-page order, or even any language from that
order, but, rather, the directive that appears on the face of the white
envelope, which reads "CONFIDENTIAL SETTLEMENT AGREE-
MENT. FILED UNDER SEAL. TO BE OPENED ONLY BY THE
COURT."5
_________________________________________________________________

5 In every other instance, as well, in which the special prosecutor spe-
cifically identified the decree that he contended was violated, with the
possible exception of one, he likewise identified the decree as that
appearing on the face of the white envelope. Thus, for example, when the
court asked whether the order violated by the New York Times was "the
order on the document saying, "TO BE OPENED ONLY BY THE
COURT," the special prosecutor responded, "Yes, sir, absolutely; that is
our position." J.A. 371. And, as if to confirm that he was referring to the
language that had just been quoted by the court, Long added, "And our
position is that that could not be any more clear than it is." Id. Of course,
the two-page sealing order does not include any language to the effect
that it or anything it references is "TO BE OPENED ONLY BY THE
COURT." J.A. 67-68.

In the single instance in which the special prosecutor did arguably con-
tend that the decree violated was the two-page order, he stated that "the
only issue is whether he [Reiss] violated docket number 196," which was
the two-page order. J.A. 373. This statement, however, was made in ref-
erence to Reiss, not in reference to Mitchell or to the New York Times.
Moreover, however clear this statement may appear to be when quoted
in isolation, it was anything but clear in the context of the colloquy
between the special prosecutor and the court. Almost immediately prior
to the special prosecutor's statement, the district court asked whether, for

14
More importantly, just as plainly as the special prosecutor argued
that the decree violated was the directive on the front of the white
envelope, the district court plainly rested its criminal contempt find-
ing exclusively upon violation of that directive, and not upon a viola-
tion of the two-page order. Thus, it is not so much, as the special
prosecutor and Conoco argue, that the district court "never held that
the admonition on the printed envelope was, by itself, the court order
that was the subject of the contempt"; it is that the district court never
held that anything other than the printed admonition was the subject
of the criminal contempt. As the district court explained:

[T]he only order of this court to which this [charge of crimi-
nal contempt] can be taken to apply [. . .] is the order with
regard to the sealing of the document which said "To be
opened only by the court. Placed under seal."

The confidentiality of the settlement agreement, as such,
is not an order of the court. What's the order of the court is
_________________________________________________________________

purposes of proving that a decree had been violated,"the decree of the
court . . . that I signed, that that document was not to be opened or `to
be opened only by the court'" was "the only order you [special prosecu-
tor Long] have to -- you've got to hang your hat on." J.A. 372. Long
responded with unmistakable clarity that, "That's the only order we've
got to hang our hat on." J.A. 373. Despite this obvious assent to the dis-
trict court's statement that the language violated was that that appeared
in the directive on the envelope, rather than that in the two-page order
inside the envelope, it was only three sentences later that the special
prosecutor stated that "the only issue is whether he [Reiss] violated
docket number 196."

Whether the special prosecutor was himself confused as to whether the
two-page sealing order included the language "TO BE OPENED ONLY
BY THE COURT"; whether he simply regarded the directive on the face
of the envelope and the two-page sealing order as one and the same; or
whether, as a strategic matter, he wished not to focus the court on the dif-
ference between the two in the event the court was unaware of the differ-
ence, we are not in a position to know. But it is clear beyond any
question that, at the pages to which he references the court, and generally
throughout his colloquy with the court, the special prosecutor argued that
the decree violated by Mitchell was the directive that appears on the face
of the white envelope.

15
 [that] this document in this envelope may not be opened
except by the court.

J.A. 392-93 (emphases added).6 Indeed, in a statement that, frankly,
gives us pause over the special prosecutor's representations as to his
own argument below and the basis for the district court's finding, the
district court specifically stated that it was "through candid admission
_________________________________________________________________

6 Elsewhere in its colloquy with the special prosecutor, the district court
similarly references as the decree that was violated the language that
appears on the outside of the white envelope. For example, in an appar-
ent effort to force the special prosecutor to articulate precisely what order
was violated, the court asked: "Is it your position that the New York
Times violated that order; that is, the order on the document saying "TO
BE OPENED ONLY BY THE COURT[?]" J.A. 371. The special prose-
cutor responded that that was "absolutely" his position. See id.

The court never evinces during the hearing a clear understanding as to
whether the decretal language appears on the outside of the white enve-
lope or within the text of the two-page sealing order. It actually appears,
however, that the court may have believed that the decretal language
"TO BE OPENED ONLY BY THE COURT" appeared within the two-
page order. For example, the court stated at one critical point in the hear-
ing that the special prosecutor was relying on "the decree of the court
. . . that I [the court] signed, that that document was not to be opened or
"TO BE OPENED ONLY BY THE COURT." J.A. 372. If the special
prosecutor understood that the directive on the face of the envelope and
the two-page sealing order were not one and the same, he certainly did
nothing to disabuse the district court of any misunderstanding under
which it was laboring. See supra note 6. Of course, to the extent, if any,
that the district court could be understood to have based Mitchell's crimi-
nal contempt conviction on such an order, then Mitchell certainly did not
violate any "decree" of the court because there was no decree that both
bore the court's signature and included the language, "TO BE OPENED
ONLY BY THE COURT."

As with the special prosecutor, we are not in a position to know why
the district court at times seems to have conflated the directive that
appeared on the envelope and the two-page sealing order. Regardless of
the reason, however, it is clear, as we explain in text, that, throughout the
hearing, the district court always believed that it was the directive's lan-
guage "TO BE OPENED ONLY BY THE COURT" that constituted the
violated decree of the court.

16
from Mr. Long [the special prosecutor]" that it had concluded that the
only decree to which the criminal contempt charge could relate was
the directive on the face of the white envelope. J.A. 392.7
_________________________________________________________________

7 Even were we to conclude that the two-page sealing order was the
decree violated, we would yet reverse Mitchell's criminal contempt con-
viction as unsustainable under McMahon, because of the ambiguity of
that order generally, and the ambiguity of its reach to Mitchell in particu-
lar, as a non-party to the underlying litigation. The portion of this order
that the special prosecutor argues constitutes a sufficiently clear decree
is the order's caption, which reads in full as follows:

ORDER GRANTING JOINT MOTION OF PLAINTIFFS AND
DEFENDANTS TO APPROVE CONFIDENTIAL SETTLEMENT
AGREEMENT, TO
DISMISS THIS ACTION AS SETTLED DISCONTINUED AND
ENDED, AND TO
PERMIT FILING AND MAINTENANCE OF CONFIDENTIAL
SETTLEMENT AGREEMENT UNDER SEAL.

J.A. 67. That the court had merely granted a motion to "approve" a confi-
dential settlement agreement would not apprise even a party, much less
a third person, that he was bound not to disclose the contents of that
agreement; such an order merely evidences that the court had approved
the fact and terms of the parties' settlement agreement. That the court
had granted a motion to "permit filing" of the agreement under seal simi-
larly would not necessarily apprise a party or a third person that he was
bound to nondisclosure; such simply evidences that the court had autho-
rized the parties to file the agreement under seal with the court, not even
that the agreement actually had been filed under seal. That the court had
granted a motion to "permit maintenance" of the agreement under seal
would, at most, only apprise a reader that the court had granted the par-
ties permission to maintain the agreement under seal; it would not neces-
sarily apprise either that the court itself had ordered the agreement
maintained under seal or that the agreement was currently being main-
tained under seal. Even if the granted motion as to maintenance could be
understood as an order of the court to maintain the agreement sealed, it
would certainly not necessarily apprise a third person that he was not free
to disclose the contents of the agreement, as such an order would most
reasonably be understood as an order directed solely to the personnel of
the court, and, at most, to the court's personnel and the parties to the liti-
gation. Indeed, the second page of the district court's two-page sealing
order all but confirms as much:

IT IS FURTHER ORDERED that the Confidential Settlement
Agreement, the exhibits thereto, and any documents of the Clerk

17
Accordingly, it is apparent that Mitchell's criminal contempt con-
viction rested upon a finding by the district court that Mitchell vio-
lated the "decree" that appeared on the face of the white envelope,
which reads "TO BE OPENED ONLY BY THE COURT."

It is evident from the record, however, that this "decree" was not
a decree or an order of the court at all. Rather, as noted previously,
this language was affixed to the white envelope by one of Conoco's
paralegals, with the knowledge and advice of a clerk's office staff
member, but, insofar as the record reveals, not upon her instruction
or the derivative instruction of the court. The district court played no
role whatever in drafting the directive or in affixing the directive to
the front of the envelope. Nor did the district court sign the warning
or direct that it be placed on the front of the envelope. The warning
bore neither a name nor a signature of any other judicial officer, or
any date of any judicial action. And the warning was never entered
on the court's docket. Given that Conoco's paralegal was not vested
with any authority over court personnel, the warning cannot even be
characterized as "a directive to court personnel and clerk's office
employees," Appellants' Br. at 24.8

B.

Even were the warning "TO BE OPENED ONLY BY THE
COURT" a "decree" or court order, we would still conclude that there
_________________________________________________________________

of Court and the Parties filed in the future and relating to the
management and evaluation of the settlement, including the cus-
tody and distribution of settlement funds, be filed and maintained
confidentially under the seal of the Court.

J.A. 532.

8 In concluding as we do that Mitchell's criminal conviction must be
reversed since the "decree" or order on which it was based was not even
a court order or "decree" at all, we emphasize that we would not reach
the same conclusion (at least for this particular reason) were the "decree"
or order shown to be simply invalid or unconstitutional. The mere inva-
lidity or unconstitutionality of the underlying court order is insufficient
to warrant overturning a criminal contempt conviction. See Maness v.
Meyers, 419 U.S. 449, 458-59 (1975); Walker v. City of Birmingham,
388 U.S. 307, 315, 320-21 (1967).

18
is insufficient evidence to sustain Mitchell's conviction, because the
other two elements required to prove criminal contempt -- that the
order be "definite, clear, specific" and that the defendant have "will-
fully, contumaciously, [and] intentionally" violated the order -- have
likewise not been proven beyond a reasonable doubt.

With respect to the second element, we conclude that there is not
substantial evidence to support a conclusion that the warning "TO BE
OPENED ONLY BY THE COURT" is "definite, clear,[and] spe-
cific," much less that it so clear as to "le[ave] no doubt or uncertainty
in the minds of those to whom it was addressed," within the meaning
of McMahon. Most significantly insofar as this case is concerned,
even assuming that this warning could be understood to clearly and
definitely extend to persons other than court personnel (which is ques-
tionable), this warning could reasonably be understood as informing
a reader either that the envelope may only be first opened by the court
or that the envelope may never be opened by anyone other than the
court. That is, one could quite reasonably read "TO BE OPENED
ONLY BY THE COURT" as referring only to the initial opening of
the envelope or as referring to any opening of the envelope itself,
whether the initial or a successive opening. That the former under-
standing of the warning is plausible is critical in this case, given that
when Mitchell first picked up the white envelope from the pile of doc-
uments provided her by Caviness, it is undisputed that the partial
word and word "ENED OPENED" appeared prominently in red and
white letters through a cellophane window on the envelope's flap.
Thus, even assuming that Mitchell saw the warning before taking the
contents from the envelope and that the warning was a bona fide
decree, she could reasonably have believed that she was not in viola-
tion of that decree since the envelope had already been "OPENED."
Indeed, Caviness testified that the envelope had been "entered several
times." J.A. 171.

C.

With respect to the third element, we also conclude that there was
insufficient evidence to support the conclusion that Mitchell acted
"willfully, contumaciously, intentionally, [and] with a wrongful state
of mind," as required under McMahon. The events from which one
could infer contumaciousness are as follows.

19
Upon arriving at the clerk's office on the morning of October 14,
1997, Mitchell asked to see "everything" filed in the dispute between
Conoco and the plaintiff-residents "since the settlement." J.A. 273.
The deputy clerk, Anne Caviness, returned from behind the counter
with a "pile of documents." J.A. 273. In Mitchell's presence, before
handing the pile to Mitchell, Caviness removed a brown envelope
from the stack and said to Mitchell, "You can't have this, this is a
sealed document," J.A. 178, 533, to which Mitchell replied, "That's
fine, I don't need to see that." J.A. 273. Caviness testified that Mitch-
ell assented to her instructions with "[a]bsolutely [. . .] no resistance.
She was very cooperative." J.A. 182.

Mitchell thereafter took the pile of documents to a bench in the
clerk's office and turned through them, eventually coming to the
white envelope at issue, which Caviness acknowledges was "inadver-
tently" included in the stack of documents due to its white color. J.A.
172-173. Whether or not she saw first the front of the envelope bear-
ing the directive "TO BE OPENED ONLY BY THE COURT," see
note 9 infra, Mitchell saw on the back of the envelope a cellophane
window in which appeared the partial word and word"ENED
OPENED" and the warning "Caution: The word`opened' appears in
the window panel to indicate that the envelope has been opened." As
the district court described:

The back of the envelope had a flap folded down from the
top and a window centered in the flap with the following let-
ters appearing in red and white: "ENED OPENED". Just
adjacent to the flap appeared the following words in red:
"Caution: The word `OPENED' appears in the window
panel to indicate that the envelope has been opened."

J.A. 533. The envelope flap was "tacked down" or "sticky," J.A. 281,
but the seal had been broken and the envelope opened several times.
J.A. 171. Mitchell lifted the flap and removed from the envelope the
settlement agreement. Attached to the settlement agreement was the
district court's two-page sealing order, which the district court found
that Mitchell saw. J.A. 532-534. After reading the settlement agree-
ment and learning of the $36 million settlement amount, Mitchell
reinserted the document to the white envelope, returned the docu-

20
ments to the deputy clerk, and left the clerk's office, whereupon she
telephoned her editor with the information she had learned.

Based upon this sequence of events, we are convinced that no rea-
sonable trier of fact could conclude that Mitchell acted with the con-
tumaciousness necessary to support a conviction for criminal
contempt. There is simply no evidence whatsoever in this sequence
of events from which one could even infer an intent to violate a court
order of confidentiality, at least absent a finding that Mitchell actually
saw the directive on the face of the white envelope prior to opening
the envelope and reviewing the contents, which the district court did
not find.9 Therefore, we conclude that no rational trier of fact could
_________________________________________________________________

9 Although for purposes of the civil contempt citations against Mitchell
and the Morning Star, the district court found that "Mitchell was aware
that the envelope warned that it was TO BE OPENED ONLY BY THE
COURT before she reported its contents to her superiors at the Morning
Star." J.A. 534 (emphasis added), for purposes of Mitchell's criminal
contempt conviction, the district court made no specific finding on
whether Mitchell saw the directive before or after she reviewed the enve-
lope's contents, and no specific finding was required pursuant to Fed. R.
Crim. P. 23(c).

Ordinarily, we would ascribe to the district court a finding that it nec-
essarily must have made -- here, for example, a finding that Mitchell
saw the directive on the face of the white envelope before she opened the
envelope and reviewed its contents. In this case, however, because the
district court may well have believed (albeit in error) that the directive
reading "TO BE OPENED ONLY BY THE COURT" appeared on the
two-page sealing order, rather than on the envelope, see note 6 supra, it
is not necessarily the case that the district court found that Mitchell saw
the directive before reviewing the envelope's contents. That is, even
though the district court clearly concluded that it was the directive on the
face of the envelope that Mitchell violated, the fact that the court may
have believed that that directive appeared on a document inside the enve-
lope makes it impossible for us to conclude that the district court neces-
sarily found what otherwise it would necessarily have had to find.

And indeed, we believe it likely that the district actually believed that
Mitchell did not see the directive before opening the envelope, based
upon the district court's finding, for purposes of Mitchell's civil con-
tempt, only that she was aware of the directive "before she reported its

21
find beyond a reasonable doubt that Mitchell willfully and contuma-
ciously, and with intent, violated a judicial order.

If anything, in our view, the above sequence of events all but con-
firms that Mitchell acted wholly innocently, and certainly innocently
insofar as the law is concerned.

First, Mitchell had had no prior involvement with the case between
Conoco and the plaintiff-residents before she was asked simply to go
to the clerk's office to check for recent filings. Second, upon arriving
at the clerk's office, Mitchell only requested from Deputy Clerk Cavi-
ness documents filed "since the settlement," a request which, on its
face (at least arguably) elicited only documents filed after the settle-
ment agreement was approved. Third, Mitchell reasonably would
have assumed from the outset that the documents the deputy clerk
brought to the counter were documents to which she was entitled to
have access. Fourth, certainly after the deputy clerk, in Mitchell's
presence, physically removed one envelope from the document stack
specifically on the ground that the document was sealed, Mitchell
would have had every reason to believe that the remaining documents
were publicly available, the clerk's diligence having been proven.
Fifth, at least initially, Mitchell could have reasonably believed, from
the fact that the envelope in which the settlement agreement was
enclosed was white and that the sealed document removed from the
stack by the deputy clerk was enclosed in a brown envelope, that the
contents of the white envelope were not sealed. Sixth, Mitchell not
only could have reasonably believed, but would have most reasonably
believed, from the fact that the white envelope had been opened and
indicated that it had been opened, that the enclosed documents were
publicly available. Indeed, we are of the view that, from the combina-
tion of these facts -- and in particular the facts that Mitchell was pro-
_________________________________________________________________

contents to her superiors at the Morning Star." J.A. 534. We think it
highly unlikely that the district court was willing to find by a preponder-
ance of the evidence for purposes of the civil contempt citation only that
Mitchell saw the directive on the face of the white envelope sometime
before telephoning her editor but, for purposes of the criminal contempt
conviction, found beyond a reasonable doubt that Mitchell in fact saw
the directive before she opened the envelope and reviewed its contents.

22
vided the documents by an official of the court in response to a
request for publicly available documents, that the deputy clerk had
removed a sealed document from the pile in Mitchell's presence, and
that the white envelope had been opened (as reflected by the cello-
phane window legend) -- it would occur to few, if any, in Mitchell's
position that the settlement agreement was anything but a publicly
available document.

Accordingly, because we conclude that the district court's findings
as to none of the three elements of the criminal offense of contempt
are supported by the requisite substantial evidence, Mitchell's crimi-
nal contempt conviction is reversed.

III.

The district court, by separate order of January 21, 1998, also held
Mitchell and the Morning Star in civil contempt for violating, not the
directive that appears on the white envelope, but the court's Septem-
ber 22, 1997 sealing order itself. To establish civil contempt, each of
the following elements must be shown by clear and convincing evi-
dence:

(1) the existence of a valid decree of which the alleged con-
temnor had actual or constructive knowledge; (2) . .. that
the decree was in the movant's "favor"; (3) . . . that the
alleged contemnor by its conduct violated the terms of the
decree, and had knowledge (at least constructive knowl-
edge) of such violations; and (4) . . . that [the] movant suf-
fered harm as a result.

Colonial Williamsburg Found. v. The Kittinger Co., 792 F. Supp.
1397, 1405-6 (E.D. Va. 1992), aff'd, 38 F.3d 133, 136 (4th Cir. 1994).
We review the district court's civil contempt order for abuse of dis-
cretion. Colonial Williamsburg Found., 38 F.3d at 137.

In their consolidated appeals, Mitchell and the Morning Star con-
tend that the evidence before the district court was insufficient to hold
them in civil contempt. First, they argue that the district court's Sep-
tember 1997 sealing order was not a "valid decree." Second, they

23
argue that neither Mitchell nor the Morning Star had actual or con-
structive knowledge of the court's sealing order. Third, they argue
that neither contemnor knowingly violated the sealing order. And
fourth, they argue that Conoco suffered no legally cognizable harm
as a result of their conduct. See Appellants' Br. at 26-32. Because we
agree that the district court's September 1997 sealing order does not
constitute a "valid decree" for purposes of the court's civil contempt
orders, we also reverse these contempt findings as to both appellants.

Although the district court based its criminal contempt finding on
a violation of the warning on the front of the white envelope, as we
explain supra, in its January 1998 order holding Mitchell and the
Morning Star in civil contempt, the district court clearly based its
civil contempt findings on a violation of the two-page order that was
attached to the settlement agreement and placed inside the white
envelope. See J.A. 536 ("[C]ivil contempt can only arise in this case
from conduct contravening the court's written order sealing the Set-
tlement Agreement."); see also J.A. 554 (stating in civil judgment that
"Kirsten B. Mitchell and the Morning Star did act in contempt of this
court in violating the order of this court dated 22 September 1997
sealing the terms of the confidential settlement agreement").10
Although there is no doubt that the court's sealing order itself consti-
tutes a judicial order, appellants challenge the validity of the order
based on the district court's failure to abide by the procedures for
sealing court documents established by this court in In re Knight Pub-
lishing Company, 743 F.2d 231 (4th Cir. 1984), and reiterated in
Stone v. University of Maryland Medical Systems Corporation, 855
F.2d 178 (4th Cir. 1988).

In Knight, we explained that, while a district court "has supervisory
_________________________________________________________________

10 Thus, although the district court's memorandum opinion with respect
to the civil contempt proceeding does make reference to the language
that appeared on the front of the white envelope, see, e.g., J.A. 534 (stat-
ing in "Findings of Fact" that "Mitchell was aware that the envelope
warned that it was TO BE OPENED ONLY BY THE COURT before
she reported its contents to her supervisors at the Morning Star), it is
clear that the decree that the district court concluded was violated for
purposes of the civil contempt finding was the two-page order that
appeared inside the envelope.

24
power over its own records and may, in its discretion, seal documents
if the public's right of access is outweighed by competing interests,"
the "presumption" in such cases favors public access. Knight, 743
F.2d at 235; see also Stone, 855 F.2d at 182 ("The public's right of
access to judicial records and documents may be abrogated only in
unusual circumstances"). Accordingly, before a district court may seal
any court documents, we held that it must (1) provide public notice
of the request to seal and allow interested parties a reasonable oppor-
tunity to object, (2) consider less drastic alternatives to sealing the
documents, and (3) provide specific reasons and factual findings sup-
porting its decision to seal the documents and for rejecting the alter-
natives. See Knight, 743 F.2d at 235-36; see also Stone, 855 F.2d at
181. These procedures "must be followed when a district court seals
judicial records or documents." Stone, 855 F.2d at 179-80, 182.

The district court in this case did not comply with the requirements
set forth in Knight and Stone for sealing court documents. Despite the
Morning Star's demonstrated interest in the case, no public notice of
the parties' joint motion to seal the settlement agreement was given;
no opportunity for interested parties to object was provided; there is
no indication that the district court considered less drastic alternatives
to sealing the agreement; and the court's sealing order did not identify
any specific reasons or recite any factual findings justifying the
court's decision to override the public's right of access to the settle-
ment documents. Since the mandatory procedures established by this
court in Knight for sealing court documents were not followed by the
district court before it issued its September 1997 sealing order, that
order does not constitute a "valid decree," and therefore it cannot
serve as a basis to sustain the court's civil contempt rulings. See
McLean v. Central States Pension Fund, 762 F.2d 1204, 1210 (4th
Cir. 1985) ("reversal of the underlying order ordinarily invalidates
any civil contempt sanctions predicated thereon") (citing ITT Commu-
nity Dev. Corp. v. Barton, 569 F.2d 1351, 1356 (5th Cir. 1978) (citing
cases)). Accordingly, the district court's findings of civil contempt as
to both Mitchell and the Morning Star, together with the sanction
imposed therefore are reversed.11
_________________________________________________________________

11 Since we reverse the district court's criminal and civil contempt
orders for insufficiency of the evidence, we decline to address the appel-

25
IV.

It is to be expected in a highly charged case such as this, that on
occasion the parties will ascribe to each other positions that they do
not espouse or espouse passionately in the heat of battle but only half-
heartedly outside the fray. Appellees accuse the appellants in this case
of "waging a First Amendment battle" for a special privilege in the
press to access confidential information in the hands of government,
a view seemingly shared by the district court. For their part, the press
defendants accuse the special prosecutor and Conoco of conspiring to
subvert the important values of the First Amendment, at times unmis-
takably lacing their arguments with overtones of special privilege.
Ultimately, however, even they disavow that they claim any "special
right of access" to sealed material that is unavailable to the public
generally, and it is on the neutral ground represented by this dis-
avowal that we resolve the current dispute. For all of the parties agree
that the press, whether or not it enjoys special privileges, enjoys no
fewer privileges than other citizens interested in, and entitled to infor-
mation about, their government. And we hold today only that no citi-
zen in this country, media or otherwise, may be criminally (and
civilly) punished for the conduct that occurred here.

A citizen who requests public documents from an officer of the
court, who herself evidences diligence in safeguarding the confi-
dences of the court, and is given an envelope that once was sealed but
has been previously opened and is at the time open and denominated
as such, is entitled to presume that that envelope and its contents are
publicly available material, at least absent proof of knowledge other-
wise. No citizen is responsible, upon pain of criminal and civil sanc-
tion, for ensuring that the internal procedures designed to protect the
legitimate confidences of government are respected.
_________________________________________________________________

lants' additional arguments that the district court lacked jurisdiction to
hold them in contempt, that the district court violated fundamental prin-
ciples of separation of powers in appointing a special prosecutor to pros-
ecute the criminal contempt charges, and that the district court's
contempt orders violated the appellants' rights under the First Amend-
ment.

26
For the reasons stated herein, the judgment of the district court is
hereby reversed.

REVERSED

BLAKE, District Judge, concurring in part:

I concur in the reversal of Mitchell's criminal contempt conviction.
Specifically, I concur in Part II(C) of Judge Luttig's opinion finding
insufficient evidence to support the conclusion that Mitchell acted
"willfully, contumaciously, intentionally [and] with a wrongful state
of mind" as required under United States v. McMahon, 104 F.3d 638,
642 (4th Cir. 1997) (quoting Richmond Black Police Officers Ass'n
v. City of Richmond, 548 F.2d 123, 129 (4th Cir. 1977)). As to Part
II(B), while the language "TO BE OPENED ONLY BY THE
COURT" is "clear" in a literal sense, McMahon teaches that we must
consider the entire factual background and the defendant's own cir-
cumstances rather than "some hypothetical situation." Id. at 643. On
the facts of this case, including the court clerk's handing to Mitchell
a pile of documents after removing one with the statement "You can't
have this, this is a sealed document," and the appearance of the word
"OPENED" in the cellophane window indicating that the envelope
Mitchell was handed had already been opened, I agree there is not
sufficient evidence to support a conclusion that the order was "defi-
nite, clear, [and] specific, [leaving] no doubt or uncertainty in the
minds of those to whom it was addressed." Id. at 642. For these rea-
sons I concur in Part II(B). I would not reach the first element of the
offense and therefore do not join in Part II(A).

I concur in Part III of Judge Luttig's opinion, finding the Septem-
ber 1997 sealing order invalid, and therefore agree that the civil con-
tempt findings and sanctions as to both Mitchell and the Morning Star
must be set aside.

WIDENER, Circuit Judge, concurring and dissenting:

I.

I concur in such parts of Part III of the majority opinion, as hold
the September 1997 sealing order to be invalid. For that reason alone

27
I concur in the vacation of the civil contempt convictions of Miss
Mitchell and the Morning Star.

II.

With respect to the balance of the decision, however, and espe-
cially Part II, I respectfully dissent. I would affirm the conviction of
Miss Mitchell for criminal contempt.

The majority initially engages in an eight-page discussion (includ-
ing more than three pages of single-spaced footnotes) of whether Miss
Mitchell was found guilty of criminal contempt for violating the two-
page order of September 22, 1997 or what the majority calls the "di-
rective that appears on the face of the white envelope." Ultimately,
the majority correctly concludes that the district court decided that
Miss Mitchell violated the instructions on the outside of the envelope
containing the settlement agreement, which envelope she had to open
to see the settlement agreement. Those instructions were:

CONFIDENTIAL SETTLEMENT AGREEMENT
FILED UNDER SEAL
TO BE OPENED ONLY BY THE COURT

The lengthy justification for finding the order Miss Mitchell was
charged with violating to be that which was written on the face of the
envelope containing the settlement agreement and the order approving
the settlement agreement, is quite beside the point, I suggest, for the
district court, referring to the order involved, stated, in English as
plain as the order itself,

the order of this court is [that] this document in this enve-
lope may not be opened except by the court. (Italics added.)

The majority then finds that the order was not a court order for the
purposes of a finding of contempt because the wording of the warning
on the envelope had been placed there by a paralegal at the direction
of the case manager, a deputy clerk of the court; the judge played no
role in drafting the language on the front of the envelope and did not
sign the front of the envelope, which did not bear his name on the
face thereof; and the warning was never entered on the court's docket.

28
Some of those reasons are without factual support, and the others
are matters of indifference. The paralegal who made the entry on the
back of the envelope did so at the direction of Anne Caviness, a dep-
uty clerk of many years, the case manager of this case, whose duty
it was to see that the envelope was marked and sealed. "Well, it's a
sealed document so I was responsible that it be marked and sealed."
(J.A. 169) If this deputy clerk and case manager was not acting for
the district judge, federal judges may as well cease to function, for no
judge can attend to the thousands of details of his office without cleri-
cal assistance, be it a secretary or deputy clerk. It is a matter of com-
mon knowledge that district judges do not personally draft many or
even most of their orders. The order which was signed by the district
judge, and which was enclosed in the envelope, states unequivocally,
in capitals at the outset, that it permits the "FILING AND MAINTE-
NANCE OF CONFIDENTIAL SETTLEMENT DOCUMENTS
UNDER SEAL" and further, in the text of the order, that the "Confi-
dential Settlement Agreement, the exhibits thereto, and any docu-
ments of the Clerk of Court and the parties filed in the future . . .
relating to . . . the settlement . . . be filed and maintained confiden-
tially under the seal of the court." The white envelope in question here
contains on the face thereof the clerk's notation of docket no. 196.
No. 196 is the docket number of the order granting the joint motion
to approve the settlement agreement. To separate the warning on the
face of the envelope from the contents thereof, I suggest, is straining
too far to justify an acquittal.

The majority next finds that the warning on the envelope:

CONFIDENTIAL SETTLEMENT AGREEMENT
FILED UNDER SEAL
TO BE OPENED ONLY BY THE COURT

is not "definite, clear, specific." In my opinion, the warning could
hardly have been more definite, or clear or specific, and construing
that such a warning is equivocal is simply more straining to justify a
reversal as is its statement that Miss Mitchell might have thought the
opening referred to was an initial rather than a subsequent opening.
Even Miss Mitchell did not make this claim in her testimony. She
claimed that she had not seen the warning on the front, so she could

29
not have related the word "opened" on the back to the front, which
she had not seen.

The majority applies much the same reasoning to the fact that even
if the order was valid and the direction was clear, Miss Mitchell did
not act with "a contumaciousness necessary to support a conviction
for criminal conduct." It arrives at this conclusion because the district
court did not make a specific fact-finding that "Mitchell actually saw
the directive on the face of the white envelope prior to opening the
enclosure and reviewing its contents." Such a requirement of the
majority, that a district court in a criminal case make specific fact-
findings absent request, is simply in violation of Fed. R. Crim. P.
23(c) and case authority. United States v. Bolles, 528 F.2d 1190, 1191
(4th Cir. 1975).

The majority's conclusion that the evidence does not support the
conviction is phrased as follows: " . . . we are convinced that no rea-
sonable trier of fact could conclude that Mitchell acted with contuma-
ciousness necessary to support a conviction . . . ." To arrive at that
conclusion, the majority relied to a considerable extent on the testi-
mony of Miss Mitchell, an example of which follows: "Mitchell testi-
fied, and the district court did not hold to the contrary, that she then
noticed for the first time that on the front of the envelope was the fol-
lowing warning in bold face type . . . ." Of course, the district judge
who saw Miss Mitchell and heard her testify necessarily did not
believe her. The required supposition of the majority is that it believes
the district judge did not act as a reasonable trier of fact, as it states
in its opinion. The fact that a district court does not hold to the con-
trary of the statement of a defendant denying guilt in a criminal case
should be of no moment, much less very nearly controlling, as here.

The reliance of the majority on the testimony of Miss Mitchell is
also demonstrated by the physical attributes of the papers involved
and, as well, by its construction of the testimony of Anne Caviness,
who, as noted, was the case manager and deputy clerk of the district
court.

On page 9 of the slip opinion, the majority states that "it is undis-
puted that the envelope had been opened `several times'," for which
it relies on the testimony of Anne Caviness. That testimony of Anne

30
Caviness, however, was taken at the show-cause hearing on account
of the contempt citation, which hearing was held December 17, 1997.
Her testimony was "I know this document, this envelope [the paper
involved] has been entered several times." So Anne Caviness did not
testify that the document had been entered several times before Octo-
ber 14, 1997, when Miss Mitchell opened it, but several times before
December 17, 1997, the date of the hearing.

A description of the white envelope involved and the contents of
the envelope is helpful. The envelope is of sturdy white paper, 8-3/4"
in width and 11-3/4" in length, with the flap for opening on the 8-3/4"
side. The seal is a red pressure-sensitive seal attached to the flap, with
the word "opened" inked in pressure-sensitive material on the red seal
and on a window in the flap made of clear plastic, so that when the
envelope is opened, the ink remains on the envelope and when re-
sealed, the word "opened" appears in white in the window. In the
envelope was the order of two pages approving the confidential settle-
ment, which was signed by Judge Britt on September 18, 1997. A fil-
ing stamp on that order, as well as the envelope, shows that it was
filed in the clerk's office on September 22, 1997, the date of the
docket entry, and the envelope was stamped received in the clerk's
office on September 18, 1997, the same day that Judge Britt signed
the order. Clipped to the two-page order is the confidential settlement
agreement of nine pages, accompanied by Exhibits A through H, of
28 pages. Thus, the envelope which Miss Mitchell opened was not
merely an innocuous, ordinary envelope, as might be supposed, rather
a somewhat bulky envelope containing the two-page order of the dis-
trict court, accompanied by 37 pages of other material. Whether or
not the envelope had been opened by anyone else prior to the time
Miss Mitchell opened it does not appear in the record with any consis-
tency, but should not be determinative of this case. An examination
of the envelope and its contents makes her testimony, that she exam-
ined the back of the envelope but not the face of it, very nearly inher-
ently incredible, and, in all events, corroborates the necessary finding
of the district court that she opened the envelope in violation of the
express direction on its face.

In sum, it is my opinion that the majority simply believed the testi-
mony of Miss Mitchell and did not give sufficient weight to the fact
that the district judge who tried the case, saw the defendant-witness,

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and heard her testimony. In addition, the district court was construing
its own order. That is admitted. In such a case, we must defer to the
district court in the construction of its own order, which was not done
by the majority. Anderson v. Stevens, 875 F.2d 76, 80 n.8 (4th Cir.
1989); Simmons v. South Carolina Ports Authority , 694 F.2d 63, 66
(4th Cir. 1982).

I would find that the district court permissibly construed its own
order and that the evidence was sufficient to support the conviction.
It is idle to suggest that a jury's verdict on the same facts would be
overturned for lack of evidence and the defendant should fare no bet-
ter in this case.

I would affirm.*

_________________________________________________________________

* I also note that in footnote 11 of the majority opinion it declines to
address the additional argument or arguments that the district court
lacked jurisdiction. It did this because it reversed for insufficiency of the
evidence. If the district court did not have jurisdiction, it would have
been unable to make any finding on the sufficiency of the evidence, and
the proper result would have been to require the district court to dismiss
the case for want of jurisdiction. See Fed. R. App. P. 12(h)(3). It is true
that the procedure adopted by the majority is in accord with our previous
practice, as illustrated in Richardson v. McFadden, 563 F.2d 1130 (4th
Cir. 1977) (en banc), but that practice has not survived Firestone Tire &
Rubber Co. v. Risjord, 449 U.S. 368, 379 (1981), which is consistent
with the concurring opinions in Richardson and requires a finding as to
jurisdiction prior to a consideration of other error.

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