United States v. El-Sayegh, Hani

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 10, 1997 Decided December 16, 1997

No. 97-3147

United States of America,

v.

Hani El-Sayegh,

Appellant

Washington Post Company, et al.,

Appellees

Appeal from the United States District Court

for the District of Columbia

(No. 97cr00251-01)

Francis D. Carter, appointed by the court, argued the
cause and filed Appellant's Emergency Motion for Stay Pend-
ing Appeal and Appellant's Reply to Opposition to his Emer-
gency Motion for Stay Pending Appeal.

Steven M. Farina argued the cause for appellees Washing-
ton Post Company, et al. With him on the Response to
Emergency Motion for Stay Pending Appeal were Kevin T.
Baine and Thomas G. Hentoff.

L. Jackson Thomas, II, Assistant U.S. Attorney, argued
the cause for appellee United States. With him on the
Government's Response to Appellant's Emergency Motion for
Stay Pending Appeal were Mary Lou Leary, U.S. Attorney,
John R. Fisher and Mary-Patrice Brown, Assistant U.S.
Attorneys.

Before: Silberman, Williams and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Williams.

Williams, Circuit Judge: This case requires us to refine
the concept of "judicial records" to which there are public
rights of access. We conclude that a plea agreement submit-
ted to the court before the plea is offered, solely for the
purpose of allowing the court to rule on the government's
motion to seal the agreement, is not subject at that stage to a
public right of access under either the First Amendment or
the common law. Because no right of access exists, we find
that it was error for the district court to deny defendant's
motion to withdraw the plea agreement from the court's
docket once the intended plea fell through.

* * *

Hani El-Sayegh is a Saudi national. In March 1997 he
entered Canada, where he was arrested and subjected to
deportation proceedings. In April 1997 he contacted the
United States government and began a series of discussions
that led to the negotiation of a plea agreement. El-Sayegh
signed the agreement and was admitted into the United
States where, it was expected, he would enter a guilty plea
and the other terms of the agreement would be performed.

Federal Rule of Criminal Procedure 11(e)(2) requires plea
agreements to be disclosed "in open court or, on a showing of
good cause, in camera at the time the plea is offered."
Because of sensitive and confidential information in the plea
agreement, both the government and El-Sayegh wanted to

file the agreement under seal, and also to seal any related
portion of the anticipated plea colloquy. They could do so,
however, only under the procedure established by circuit law
to make sure that the press and public have a fair opportunity
to assert their presumptive First Amendment right of access
to any agreement on which a plea is entered. See Washing-
ton Post v. Robinson, 935 F.2d 282, 290 (D.C. Cir. 1991).
Robinson requires the government to file a written motion to
seal the plea agreement, and requires the court to enter
notice of that motion in the public docket and to give interest-
ed parties a chance to be heard. Id. at 289. The govern-
ment's motion to seal may itself be filed under seal, but notice
of the sealed motion must still be entered in the public
docket. Id. The court may file under seal the details of its
resolution of the motion, but only to the extent necessary to
protect the secrecy of the sealed agreement. Id. at 289 n.9.

In punctilious compliance with Robinson, the government
on June 16 filed a motion to seal the plea agreement and the
related portion of the plea colloquy (the "motion to seal"). A
copy of the plea agreement was attached as "Exhibit A," and
the motion to seal was itself filed under seal, pursuant to
another motion (the "preliminary motion to seal"). The dis-
trict court, also following the rules laid down in Robinson,
directed that notice of the motion to seal be docketed on June
18. As contemplated by Robinson, representatives of the
media promptly moved to intervene and oppose the sealing of
the plea agreement.

At this point movement toward the anticipated guilty plea
ceased. El-Sayegh's initial U.S. counsel, an immigration
lawyer admitted to practice in the District of Columbia (and
elsewhere), but not before the district court here, was unable
to secure admission pro hac vice. On June 19 the district
court appointed a new attorney to represent El-Sayegh. A
series of continuances followed to allow the new lawyer to
familiarize himself with the case, and the district court de-
layed ruling on the media's opposition to the motion to seal
until it could be sure that the agreement would actually be
consummated. With good reason--on July 30, El-Sayegh
repudiated the agreement entirely and entered a plea of not

guilty. Unable to secure corroborating evidence, the govern-
ment moved on September 8 to dismiss the indictment with-
out prejudice, and the district court granted the motion.

The collapse of the agreement did nothing to reduce the
media's curiosity about its details. Learning that the plea
agreement would not be offered in court, counsel for the
media intervenors sought to unseal the motion to seal. El-
Sayegh likewise remained fixed in his determination to keep
the agreement secret, and moved to withdraw it from the
court's files, where it remained as Exhibit A to the motion to
seal. Only the government lost interest; while not opposing
El-Sayegh's motion to withdraw the document, it indicated an
unwillingness to defend continued sealing.

The district court started from the proposition that the
media had some right of access to the document. It reasoned
that whether that was a constitutional right of the sort
discussed in Robinson, or merely the broader, but weaker,
common law right to judicial records described in Washington
Legal Found. v. United States Sentencing Comm'n, 89 F.3d
897, 898 (D.C. Cir. 1996), depended on whether the document
was an actual plea agreement or merely a generic court
document. Mem. Op. at 16. In either case, the court found,
El-Sayegh had demonstrated no interest sufficient to over-
come the public's right to know. Id. at 30-31. On October
21, it denied his motion to withdraw the document from the
docket and announced its intention to release the agreement
on October 28, subject to appellate intervention. We stayed
the release pending appeal, and now reverse.

* * *

The decision whether to seal a judicial record is, at least
with respect to the common law right of access, committed to
the discretion of the district court. Nixon v. Warner Com-
munications, Inc., 435 U.S. 589, 599 (1978). Our review is
directed, however, to the question of whether a right of access
(under the First Amendment or at common law) exists at all,
and is consequently de novo. See United States v. Antar, 38
F.3d 1348, 1356-57 (3d Cir. 1994). We start with the claimed
constitutional right.

The First Amendment guarantees the press and the public
access to aspects of court proceedings, including documents,
"if such access has historically been available, and serves an
important function of monitoring prosecutorial or judicial
misconduct." Robinson, 935 F.2d at 288 (citing Press-
Enterprise Co. v. Superior Court, 478 U.S. 1, 8 (1986))
("Press-Enterprise II"). We have found that a plea agree-
ment, once it has actually culminated in a guilty plea, satisfies
these conditions. See Robinson, 935 F.2d at 283, 288. An
agreement that is accepted by the court, and on which a
guilty plea is entered, substitutes for the entire trial. The
public right of access to trials is undisputed in both its
importance and its historical pedigree. See, e.g., Press-
Enterprise Co. v. Superior Court, 464 U.S. 501, 505-10 (1984)
("Press-Enterprise I")(tracing history of public trial). It thus
makes sense to treat a completed plea agreement as equiva-
lent to a trial, and therefore as an item that "historically has
been available."

Robinson's evaluation of executed plea agreements is of
minor relevance to this case, however. The document at
issue here was not filed with the court at the time a plea was
offered; it was submitted only as an exhibit to the motion to
seal. The exhibit, and the motion to seal to which it was
attached, were themselves filed under seal, pursuant to the
preliminary motion. And the district court never ruled on
the motion to seal, because the plea agreement itself col-
lapsed. Robinson's procedures were invoked and began to
function, but were then abruptly and completed mooted.

Under the Press-Enterprise II standards, we think it is
clear that there is no First Amendment right of access to this
document. There can hardly be a historical tradition of
access to the documents accompanying a procedure that did
not exist until Robinson imposed it in 1991. This fact by
itself is of course not dispositive: A new procedure that
substituted for an older one would presumably be evaluated
by the tradition of access to the older procedure. See In re
Reporters Committee for Freedom of the Press, 773 F.2d
1325, 1337 (D.C. Cir. 1985). But the Robinson requirements
are an entirely novel byproduct of the recognition of a First
Amendment right of access to plea agreements; courts do not

otherwise receive samples of the agreements before the pleas
are offered. See Federal Rule of Criminal Procedure 11(e)(2)
(providing for disclosure of agreement to court at time plea is
offered). Thus it is impossible to say that access to such a
document has historically been available, and the media inter-
venors' claim fails to satisfy the first of the two necessary
criteria for a First Amendment right of access. We thus turn
to the common law right of access, which is largely controlled
by the second of the First Amendment criteria--the utility of
access as a means of assuring public monitoring of judicial or
prosecutorial misconduct. Reporters Committee, 773 F.2d at
1336.

* * *

The common law right of access to judicial records ante-
dates the Constitution. See Leucadia, Inc. v. Applied Extru-
sion Technologies, Inc., 998 F.2d 157, 161 (3d Cir. 1993). But
not all documents filed with courts fall within its purview--at
least, not in this circuit. Compare Reporters Committee, 773
F.2d at 1335-36, 1340 (no common law right of access to
prejudgment records in civil cases) with Pansy v. Borough of
Stroudsburg, 23 F.3d 772, 782 (3d Cir. 1994) (existence of
right depends on "whether a document is physically on file
with the court").1

The right to inspect judicial records is a species of the right
to inspect public records, Nixon v. Warner Communications,

__________
1 The media intervenors argue that El-Sayegh has conceded that
the document is a judicial record, to which the right attaches. At
times, El-Sayegh might seem to admit that either the First Amend-
ment or the common law standard must apply. See, e.g., Appel-
lant's Emergency Motion for Stay Pending Appeal at 10 ("[I]f we
are correct and the First Amendment's guarantees do not apply,
then the document must be considered under the common-law right
of access to the court documents."). But he also consistently
advances, and cites appropriate precedent for, the proposition that
because this document has never been the subject of judicial action,
it is not a judicial record and no public right of access exists. See
id. at 10-11. We take El-Sayegh's argument to be simply that
after finding no First Amendment right, one considers the common
law--and finds no right there either.

Inc. 435 U.S. at 597, and we have recently examined the
question of what constitutes a "public record," see Washing-
ton Legal Found., 89 F.3d at 897. As to both sets, we
grounded the concept in "the public's interest in keeping 'a
watchful eye on the workings of public agencies,' " id. at 905,
quoting Nixon, 435 U.S. at 598. See also Reporters Commit-
tee, 773 F.2d at 1336-37 (rejecting claim of First Amendment
access to documents in civil case prior to judgment, noting
absence of any need of access for public review of judicial
process). For public records generally, we found excluded
"documents that are preliminary, advisory, or, for one reason
or another, do not eventuate in any official action or decision
being taken." Washington Legal Found., 89 F.3d at 905
(emphasis added). The part of the exclusion relating to
"preliminary" or "advisory" records, however, we found inap-
plicable to judicial records, noting that "[a] court proceeding
... is in its entirety and by its very nature a matter of legal
significance." Id. at 906. We explained, "Indeed, the mean-
ing and legal import of a judicial decision is a function of the
record upon which it was rendered." Id.

This principle, of course, assumes a judicial decision. If
none occurs, documents are just documents; with nothing
judicial to record, there are no judicial records. Cf.
Anderson v. Cryovac Inc., 805 F.2d 1, 13 (1st Cir. 1986)
(restricting common law right of access to "materials on
which a court relies in determining the litigants' substantive
rights"); Reporters Committee, 773 F.2d at 1335-39 (simi-
lar).2

The only judicial act related to this document is the district
court's determination to release it, which is the source of this
appeal. The court did grant the preliminary motion, which
asked it to seal the motion to seal, but doing so gave the court
no occasion to consider the agreement attached as an exhibit

__________
2 Thus, where a plea agreement is offered to the court and
rejected under Rule 11(e)(4), the rejection itself would presumably
constitute a judicial act that would be assessable by the public only
by reference to the agreement. The agreement would therefore be
a judicial record to which the common law right would attach.

to the main motion; the grant was simply a step to preserve
the relevant secrecy interests until the Robinson process had
run its course--and was necessary so that that process would
not be rendered pointless by a disclosure before the court
made its Robinson determination.

Even had the court ruled on the motion to seal proper, we
do not think that the public would acquire a right of access to
a plea agreement simply because a court examined it to
determine whether, if it were eventually filed, it might be
filed under seal. Allowing a court to decide whether informa-
tion may be withheld from the public, without simultaneously
disclosing it to the public, obviously limits the role of public
scrutiny as a constraint on judicial error. But that particular
constraint cannot flourish in full in this context; affording
public scrutiny is logically incompatible with the nature of the
proceedings. The Robinson procedures are a reaction to--
and hence an implicit acknowledgment of--just that impossi-
bility. Similarly, the fact that the document is now the
subject of this judicial proceeding--which is being held to
determine if a right exists--does not create the very right in
question; that is just bootstrapping.

The idea's logical incoherence is, of course, reflected in its
practical effects--to thwart the use of documents that parties
would not submit at all without assurances of confidentiality.
We can readily imagine, for example, cases where the unseal-
ing of a plea agreement would be a deal-breaker. If moving
to file the plea agreement under seal resulted in disclosure of
the agreement when the motion was not granted, even if the
plea was then not offered at all, defendants in such cases
would be unlikely to run the risk of trying. This chilling of
plea negotiations is precisely the evil sought to be avoided by
Federal Rule of Criminal Procedure 11(e)(6), which provides
that guilty pleas later withdrawn, or statements made to
government attorneys in the course of plea discussions that
do not result in a guilty plea or that result in a guilty plea
later withdrawn, are inadmissible in subsequent proceedings.
See H.R. Rep. No. 94-247, 94th Cong., 1st Sess. 7 (1975)
(discussing earlier version, notes risk that use would "discour-
age defendants from being completely candid and open dur-

ing plea negotiations"). In construing an earlier version of
this rule, we were guided by a recognition of "the need for
free and open discussion between the prosecution and the
defense during attempts to reach a compromise." United
States v. Davis, 617 F.2d 677, 683 (D.C. Cir. 1979).

While admissibility as evidence is not at issue here, the
policy in favor of candid plea negotiations is directly implicat-
ed, as is the policy in favor of civil settlement, since submis-
sion to a court would pose the same risks for civil parties
seeking to seal their settlement agreement. In that context,
discussing settlement negotiations between employers and
the Equal Employment Opportunity Commission, we have
noted that "only by keeping such data strictly confidential can
employers be encouraged to discuss openly and frankly the
possible grounds for an amicable resolution of the disputes at
hand." Sears, Roebuck & Co. v. EEOC, 581 F.2d 941, 948
(D.C. Cir. 1978). Public access to unconsummated plea
agreements cannot be squared with the confidentiality re-
quired for candid negotiations. The district court's involve-
ment in those negotiations--at least its decision whether a
plea agreement may be filed under seal--is consequently not
a judicial function that admits of public oversight; it is one of
those "government operations that would be totally frustrated
if conducted openly." Press-Enterprise II, 478 U.S. at 9.

The details of the plea agreement may, of course, be
relevant to evaluating the performance of the Department of
Justice or other law enforcement agencies in their dealings
with El-Sayegh. But that is not the judicial function, and
proper public oversight of the executive neither requires nor
justifies claims of access to the records of the judiciary. The
appropriate device is a Freedom of Information Act request
addressed to the relevant agency. Cf. Nixon, 435 U.S. at
605-06 (existence of statutory disclosure mechanisms weighs
against court-mandated disclosure).

We thus hold that what makes a document a judicial record
and subjects it to the common law right of access is the role it
plays in the adjudicatory process. See Anderson, 805 F.2d at
13; Reporters Committee, 773 F.2d at 1335-37. This docu-

ment has played no role in any adjudicatory function--save,
of course, those functions relating to its very disclosure.
Moreover, no role in even a completed Robinson proceeding,
standing alone, could have been enough to create any public
right of access. Thus the district court erred in denying El-
Sayegh's unopposed motion to withdraw the agreement from
the court's docket. With the collapse of the agreement and
the dismissal of the indictment, the motion to seal is obviously
moot; the motion to withdraw it and its accompanying exhibit
should have been granted.

Reversed.