United States v. Gonzales

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUL 28 1998
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff,
v.

CESAR GONZALES aka Cougar;
HECTOR GABRIEL LOPEZ aka
Shaggy; URIEL MARTINEZ aka Duke; No. 97-2064
CESAR JUAREZ aka Pelon; GUSTAVO
AZCUENAGA aka Mono; LUIS
DELCID aka Stranger; ERNEST
GUEVARA aka Yogi; RUSSELL
BARBOA aka Chino; JOHN ACOSTA
aka Lefty; BYRON ZAMORA aka
Trigger; OSCAR VILLA aka Wino;
RICHARD ACOSTA aka Shorty;
ROGER PRECIADO aka Cartoon;
JAIME VILLA aka Psycho; MARCOS
MAZZINI aka Lucky; VINCENT
NAJAR aka Stalker; JASON
DELATORRE aka J Bone; CHARLES
TAYLOR aka Yogie; URIEL
BUSTAMONTE aka Caps; MICHAEL
MORA aka M&M; DAVID GALLARDO
aka Cyclone; NEAL POLUS aka Troy
Thompson aka Evil; FRANK LARA, aka
Spooky,

Defendants - Appellees,
ALBUQUERQUE JOURNAL,

Intervenor,

NATIONAL ASSOCIATION OF
CRIMINAL DEFENSE LAWYERS;
NEW MEXICO CRIMINAL DEFENSE
LAWYERS ASSOCIATION,

Amici Curiae.

UNITED STATES OF AMERICA,

Plaintiff,
v.

CESAR GONZALES aka Cougar;
CESAR JUAREZ aka Pelon; GUSTAVO
AZCUENAGA aka Mono; LUIS No. 97-2095
DELCID aka Stranger; ERNEST
GUEVARA aka Yogi; RUSSELL
BARBOA aka Chino; JOHN ACOSTA
aka Lefty; BYRON ZAMORA aka
Trigger; OSCAR VILLA aka Wino;
RICHARD ACOSTA aka Shorty;
ROGER PRECIADO aka Cartoon;
MARCOS MAZZINI aka Lucky;
VINCENT NAJAR aka Stalker; JASON
DELATORRE aka J Bone; CHARLES
TAYLOR aka Yogie; URIEL
BUSTAMONTE aka Caps; NEAL
POLUS aka Troy Thompson aka Evil,

Defendants-Appellants,

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ALBUQUERQUE JOURNAL,

Intervenor,

NATIONAL ASSOCIATION OF
CRIMINAL DEFENSE LAWYERS;
NEW MEXICO CRIMINAL DEFENSE
LAWYERS ASSOCIATION,

Amici Curiae.

UNITED STATES OF AMERICA,

Plaintiff,
v.

CESAR GONZALES aka Cougar;
URIEL MARTINEZ aka Duke; CESAR
JUAREZ aka Pelon; GUSTAVO No. 97-2101
AZCUENAGA aka Mono; LUIS
DELCID aka Stranger; ERNEST
GUEVARA aka Yogi; RUSSELL
BARBOA aka Chino; JOHN ACOSTA
aka Lefty; BYRON ZAMORA aka
Trigger; OSCAR VILLA aka Wino;
RICHARD ACOSTA aka Shorty;
ROGER PRECIADO aka Cartoon;
MARCOS MAZZINI aka Lucky;
VINCENT NAJAR aka Stalker; JASON
DELATORRE aka J Bone; CHARLES
TAYLOR aka Yogie; URIEL
BUSTAMONTE aka Caps; MICHAEL
MORA aka M&M; DAVID

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 GALLARDO aka Cyclone; NEAL
POLUS aka Troy Thompson aka Evil,

Defendants,

and
HECTOR GABRIEL LOPEZ aka
Shaggy; JAIME VILLA aka Psycho;
FRANK LARA aka Spooky,

Defendants-Appellants.

ALBUQUERQUE JOURNAL,

Intervenor,

NATIONAL ASSOCIATION OF
CRIMINAL DEFENSE LAWYERS;
NEW MEXICO CRIMINAL DEFENSE
LAWYERS ASSOCIATION,

Amici Curiae.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. NO. CR-95-538-MV)

William S. Dixon (Charles K. Purcell with him on the briefs), Rodey, Dickason,
Sloan, Akin & Robb, P.A., Albuquerque, New Mexico, for Intervenor/Appellant
Albuquerque Journal.

Gail J. Evans, Hannum & Evans, Albuquerque, New Mexico, for Appellees Cesar
Gonzales, Cesar Juarez, Gustavo Azcuenaga, Luis Delcid; Ernest Guevara;
Russell Barboa; John Acosta; Byron Zamora; Oscar Villa; Richard Acosta; Roger

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Preciado; Marcos Mazzini; Vincent Najar; Jason Delatorre; Charles Taylor; Uriel
Bustamonte; and Neal Polus.

Marc H. Robert, Barnett, Allison & Robert, Albuquerque, New Mexico, for
Appellees Hector Gabriel Lopez, Jaime Villa, and Frank Lara.

Steven G. Farber, Santa Fe, New Mexico, and Barbara Bergman, Albuquerque,
New Mexico, filed an amici curiae brief for National Association of Criminal
Defense Lawyers and New Mexico Criminal Defense Lawyers Association.

Before ANDERSON, McKAY, and BRISCOE, Circuit Judges.

ANDERSON, Circuit Judge.

We must determine in this case whether the press has a constitutional,

common law, or statutory right of access to court-sealed fee, cost, and expense

applications and related information filed under the Criminal Justice Act (“CJA”),

18 U.S.C. § 3006A, by court-appointed criminal defense attorneys, as well as

transcripts from hearings and court orders concerning those applications. If there

is a right of access, then at what time and under what conditions.

Construing Intervenor Albuquerque Journal’s appeal and the Defendants’

cross-appeals as petitions for writs of mandamus, 1 we hold as follows: (1) there

1
Because “mandamus is the proper vehicle for reviewing court orders
sealing or redacting court documents in criminal proceedings,” United States v.
McVeigh, 119 F.3d 806, 810 (10th Cir. 1997) (per curiam), cert. denied, 118 S.
(continued...)

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is no First Amendment right of access to documents provided as backup detail for

CJA vouchers, or certain related motions, orders, and transcripts; (2) there is no

right of access to CJA vouchers or related information pursuant to the common

law because, even if relevant common law previously existed on this subject, it

has been supplanted by the CJA; and (3) the press has no statutory right of access

to the materials in question, but the court has discretion to release certain material

subject to the conditions outlined below. Applying these principles to this case,

we hold that the court acted within its discretion in ordering the release of the

CJA vouchers (as defined below) at the end of all Defendants’ sentencing

hearings and in ordering the release of the total amounts expended in individual

cases at the end of each Defendant’s sentencing hearing; but the court abused its

discretion in ordering the unconditional release of the sealed backup documents,

motions, orders, and transcripts at the end of all Defendants’ sentencing hearings

because the court incorrectly concluded that the interests governing whether or

not particular information should be redacted or remain under seal terminate at

1
(...continued)
Ct. 1110 (1998) (“McVeigh II”), we treat the appeal and cross-appeals as
petitions for writs of mandamus. Although there may be a strong argument in
favor of reviewing the cross-appeals as appeals from a collateral order under
Cohen v. Beneficial Indus. Loan Corp. , 337 U.S. 541 (1949), we would reach the
same result applying the applicable standards under either doctrine.

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the conclusion of the trials. Accordingly, we deny the Journal’s application for a

writ of mandamus and grant a writ of mandamus to the Defendants.

I.

BACKGROUND

Twenty-three Defendants were indicted by a federal grand jury in the

District of New Mexico for various offenses, including murder, attempted murder,

drug distribution, and racketeering. All of the Defendants are indigent, and

accordingly, the district court appointed each Defendant counsel pursuant to the

Criminal Justice Act, 18 U.S.C. § 3006A. 2 The Defendants are allegedly members

of the “Sureno 13” street gang in Albuquerque, New Mexico, and the case has

attracted wide-spread media attention. Several of the Defendants (“Cooperating

Defendants”), as well as other non-indicted individuals, entered into agreements

with the government to cooperate in the investigation and prosecution of the case.

Some of these Cooperating Defendants will testify at the trials of the other

Defendants and several of the Cooperating Defendants and cooperating

individuals have been admitted into the Witness Security Program, 18 U.S.C.

§§ 3521-28. Many of the remaining Defendants (“Non-Cooperating Defendants”)

2
One Defendant, Uriel Martinez, has not been apprehended.

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have also entered into plea agreements with the government. The government

seeks the death penalty as to three Defendants. R. Vol. I at 164-65.

A. The CJA Payment Process

Pursuant to the CJA and the Administrative Office of United States Courts’

Guide to Judiciary Policies & Procedures, attorneys appointed by the court to

represent indigent defendants in criminal cases are paid by the government out of

funds appropriated for that purpose. These attorneys claim compensation and

expenses by submitting prescribed forms: CJA form 30 for death penalty cases

and form 20 for all other cases. 3 These forms are generally submitted at the end

of trial in non-capital cases, but the court may grant an attorney’s request for

interim billing, which is more common in capital cases because the proceedings

are typically longer. The forms require the attorney to list any expenses incurred

and to categorize his or her time spent in each of the following areas:

arraignment and/or plea, bail and detention hearings, motions hearings, trial,

sentencing hearings, revocation hearings, appeals court, other in-court hearings,

3
The rate of compensation for counsel is not to exceed the statutory
maximum and may not exceed a total amount in each case unless the total
maximum amount is waived by the district court upon approval by the chief judge
of the circuit. See 18 U.S.C. § 3006A(d). In death penalty cases, the rate of
compensation is not to exceed the statutory maximum, but there is no statutory
limit on the total amount that may be paid. See 21 U.S.C. § 848(q)(10)(A).

-8-
interviews and conferences, obtaining and reviewing records, legal research and

brief writing, travel time, and investigative and other work. The voucher consists

of a single page. A current version of form 20 is attached hereto.

On application by appointed counsel, and after an ex parte hearing, the

court may also allow the defense to engage the services of law clerks,

investigators, experts in various fields, and others, whose compensation is not to

exceed amounts specified by statute, unless that amount is waived. See 18 U.S.C.

§ 3006A(e)(3); 21 U.S.C. § 848(q)(10)(B). 4 Requests for compensation for these

services are submitted on CJA form 31 for death penalty cases and on form 21 for

all other cases. These forms require information as to the type of services

performed, such as psychiatric, fingerprint, or ballistics, and an itemization of

services rendered and expenses incurred. These forms are also generally

submitted at the end of trial in non-capital cases, but the court may allow interim

billing and generally does so in capital cases. Both forms 21 and 31 consist of a

single page. A current version of form 21 is attached hereto.

In addition to the information contained on forms 20, 21, 30, and 31, the

applicants must submit backup documentation, including detailed time sheets

4
We have repeatedly emphasized that defendants must provide the district
court with explicit detail showing why the requested services are “necessary” to
an adequate defense and what the defendant expected to find by using the
services. See, e.g., United States v. Kennedy, 64 F.3d 1465, 1470 (10th Cir.
1995); United States v. Mundt, 508 F.2d 904, 908 (10th Cir. 1974).

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specifying the specific services performed and receipts for expenses incurred.

The district court has discretion as to the amount of supporting detail it will

require, and therefore the amount of detail contained in the backup documentation

varies depending on the judge as well as the complexity of the case. Motions and

orders relating to the appointment of individuals other than counsel as well as

transcripts from ex parte hearings related thereto are generally placed under seal.

CJA vouchers and backup documentation related to services of counsel and non-

counsel and any motions, orders, and hearing transcripts related to services of

counsel are not required to be placed under seal. The practice of sealing these

materials varies with the circumstances.

Our analysis, then, deals with three categories of information: (1) the CJA

forms (vouchers) themselves; (2) backup documentation to the vouchers; and (3)

motions, orders, and hearing transcripts. 5 For convenience in this opinion we

refer to the first type of document, which includes only the single page form, as

CJA forms or vouchers. The second category of documents includes any material

attached to the vouchers, including receipts, time sheets, and other detailed

5
The sealed record on appeal contains transcripts of interviews with
numerous Defendants conducted by attorneys for several other Defendants. Our
reading of the district court’s order leads us to believe that these transcripts are
not included in those “CJA-related documents, motions, orders, and transcripts”
to be released after the last remaining defendant is sentenced. United States v.
Gonzales, No. CR-95-538-MV, 1997 WL 155403, at *13 (D.N.M. Feb. 11, 1997).

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information, which we will refer to as backup documentation. The third category

includes any motions, orders, and transcripts of hearings regarding the

appointment and compensation of attorneys, experts, law clerks, investigators, and

others. In addition, in this case the total amounts to be released under the district

court’s order are compiled by the court clerk from the vouchers, but they are not

the entire or partial vouchers themselves, so we are also dealing with a category

of extracted and summarized information.

B. Proceedings in the District Court

In this case, the court granted, on November 28, 1995, defense counsels’

joint motion to submit requests for compensation on a monthly basis pursuant to

18 U.S.C. § 3006A and the rules governing the administration of the CJA,

specifically, VII Administrative Office of United States Courts, Guide to

Judiciary Policies & Procedures (“AO Guide”), chap. II, part C, § 2.30; chap. III,

part A, § 3.06; app. E, F, because of the complexity and the anticipated length of

the proceedings. But in doing so, the court required that the documentation

supporting requests for interim payments contain a very high level of detail,

including information that, according to the district court, would reveal privileged

information. Supplemental R. Vol. I, Tab 2073 at 5-6 (district court order

granting in part defendants’ motion to stay pending appeal). Realizing that some

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of the materials submitted to the court had not been placed under seal, Defendants

jointly moved the court to place all vouchers, backup documentation, motions,

and orders related to CJA billing under seal. On February 20, 1996, the court

granted the motion. Additionally, all CJA-related hearings have been held ex

parte and the transcripts of those hearings are sealed.

On July 26, 1996, the Albuquerque Journal filed a motion to unseal all CJA

vouchers, backup documentation, motions, orders, and other documents that had

been filed, as well as the hearing transcripts. The government consented to the

motion, “except to the extent that unsealing of filings would disclose the

identities or location of cooperating witnesses or informants.” R. Vol. II, Tab 923

at 4. The Defendants opposed the motion.

Construing the motion as a petition for a writ of mandamus pursuant to 28

U.S.C. § 1361, the district court, on February 11, 1997, ordered that the clerk

release (1) the total attorney fees and overall total paid through CJA funds as to

each Defendant as soon as that Defendant was sentenced, 6 and (2) all of the other

CJA materials, that is, the vouchers, backup documentation, motions, orders, and

hearing transcripts pertaining to all Defendants, as soon as the last remaining

6
Because some of the Defendants had already been sentenced at the time of
the district court’s order, the court ordered the immediate release of the totals as
to those defendants, and those amounts have already been made public. Since
then, many other defendants have been sentenced, and those amounts have also
been made public. Obviously, this case is moot as to that particular information.

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Defendant had been sentenced. The court based its order primarily on the theory

that the press has a qualified First Amendment right of access to the information

in question, but that the interests of the Defendants and a fair trial outweighed

those of the press until the end of trial. The court held, alternatively, that the CJA

statutory scheme supplants the common law and embodies traditional concepts of

confidentiality, giving the court discretion to seal documents when fair trial or

privacy interests are threatened.

C. The Appeal

The Albuquerque Journal appeals from the district court’s order, arguing

that under the First Amendment, the common law or the CJA statute, all of the

CJA-related vouchers, backup documentation, motions, orders, and hearing

transcripts should be released immediately, or, in the alternative, that the court

should narrowly tailor its restriction on the right to access by sealing only certain

documents and by redacting information in others.

The Cooperating Defendants and Non-Cooperating Defendants have each

filed a cross-appeal. 7 They contend that the court’s order violates the Defendants’

7
Although the Cooperating Defendants have interests peculiar to their
specific situations, they join the arguments made in the Non-Cooperating
Defendants’ briefs. Answer Br. & Br. in Chief for Lara, et al. at 1-2. The
distinct issue that the Cooperating Defendants raise—and that the Non-
(continued...)

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right to a fair trial, protection against self-incrimination, attorney-client privilege,

attorney work product, equal protection, and privacy interests, and that to protect

those rights, the backup documentation, motions, orders, and hearing transcripts

must remain permanently sealed. They do not dispute, however, the release of the

total amounts expended on each Defendant or the release of properly redacted

vouchers at the end of all proceedings. Amici curiae National Association of

Criminal Defense Lawyers and New Mexico Criminal Defense Lawyers

Association urge us in a joint brief to do whatever is necessary to ensure that

defendants facing the death penalty have effective assistance of counsel through

confidential attorney-client communications and trial strategies. Our analysis

disposes of both the appeal and cross-appeals.

Pending this appeal, the district court has stayed that portion of its order

which would release all of the CJA materials at the conclusion of all proceedings.

7
(...continued)
Cooperating Defendants agree with—is that information contained in the backup
documentation may jeopardize the safety of individuals who have cooperated with
the government, especially those who are now in the Witness Protection Program.
Disclosure of this information will not only hurt those who have aided the
government in this case, but it will also discourage future defendants, informants,
and witnesses from cooperating with the government. Id. at 4-8.

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 II.

DISCUSSION

In determining whether to grant a writ of mandamus, we consider the

following “‘nonconclusive guidelines’”:

“(1) whether the petitioner seeking the writ has no other adequate
means to secure the relief desired;
(2) whether the petitioning party will be damaged or prejudiced in a
way not correctable on appeal;
(3) whether the district court’s order constitutes an abuse of
discretion;
(4) whether the court’s order represents an often repeated error and
manifests a persistent disregard of federal rules; and,
(5) whether the district court’s order raises new and important
problems or legal issues of first impression.”

McVeigh II, 119 F.3d at 810 (quoting United States v. Roberts, 88 F.3d 872,

882-83 (10th Cir. 1996)).

The first and fifth factors are satisfied here. The second factor is

applicable insofar as it asks whether the Albuquerque Journal could have any

wrong addressed in a direct appeal. The third and fourth factors are “inextricably

linked” such that the case “really boils down to whether the district court abused

its discretion in sealing and redacting the documents here sought by petitioners.

That requires an analysis of whether the documents are subject to the

[Albuquerque Journal’s] First Amendment and common law rights of access, and

whether the district court clearly violated a legal duty in its assessment of how

those rights apply to the documents.” McVeigh II, 119 F.3d at 810-11.

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A. The First Amendment

The Albuquerque Journal argues that it has a First Amendment right of

access to all of the CJA materials. Although we avoid deciding constitutional

issues where narrower grounds for a decision exist, see McKenzie v. Renberg’s

Inc., 94 F.3d 1478, 1488 n.11 (10th Cir. 1996), cert. denied, 117 S. Ct. 1468

(1997), since the district court here resolved the issue on constitutional grounds

and since the statute does not address all grounds of the Albuquerque Journal’s

argument, we address the constitutional issue first.

1.

We make two initial points at the outset in order to place the Journal’s

constitutional arguments in perspective.

First, to the extent the Journal bases its arguments on a claim that the

public has a right to know how public funds are being spent in individual criminal

cases, its logic is spoiled by the facts. The Journal does not seriously dispute that

it cannot get the type of data it seeks here from the Department of Justice with

respect to prosecution costs, 8 or from Federal Public Defender Offices (which

8
The United States Attorney’s Office pays its attorneys and other staff from
funds approved by the Attorney General, see 28 U.S.C. §§ 548-50, and
investigative, expert and other services performed by the FBI and other
governmental agencies are paid out of applicable agency budgets. Although the
(continued...)

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handle up to 75% of the indigent defendant caseload in districts where such

offices are located). 9 Those two sources of expenditures, when combined,

account for the bulk of public funds spent on criminal prosecutions involving

indigent defendants—all unavailable to the press in the type of detail sought here.

The Journal’s fall-back refinement of its position is that a constitutional

right of access springs into being as to the public funds here because a judge is

involved in approving the requests for funds (presumably as opposed to judicially

unsupervised expenditures by the government, for example). That brings us to

our second point.

Just as trial-related expenditures, reviews, requests, and approvals for funds

in the Department of Justice and Federal Public Defender’s Offices are

administrative, not judicial, functions, so is the CJA voucher process. Forms 20,

8
(...continued)
Department of Justice is subject to the Freedom of Information Act (“FOIA”), 5
U.S.C. § 552, we have been directed to no authority thereunder that provides for
the release of detailed case-by-case information, much less the minute detail
sought in this particular case.
9
See Theodore J. Lidz, “Summary of Defender Services Issues under the
CJA,” in II Federal Courts Study Committee Working Papers & Subcommittee
Reports, part IVB at 9 (July 1, 1990) (hereinafter “Fed. Courts Study
Committee”). Federal public defenders and their para-legals, investigators, and
experts who represent indigent defendants are paid from that organization’s
budget, which is administered through the Administrative Office of the United
States Courts, under the direction of the Judicial Conference of the United States,
see 18 U.S.C. § 3006A(g)(2)(A); 28 U.S.C. § 605; AO Guide, chap. IV,
§§ 4.02-.03, but is not subject to FOIA. See 5 U.S.C. § 552(f); AO Guide, chap.
V, § 5.01.

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21, 30 and 31, and the guidelines promulgated for their use by court and counsel,

are all generated through the Administrative Office of the United States Courts

under authority granted to the Judicial Conference of the United States. They are

purely administrative. And, the court essentially acts in an administrative, not a

judicial, capacity when approving voucher requests and related motions for trial

assistance. See, e.g., United States v. Davis, 953 F.2d 1482, 1498 n.21 (10th Cir.

1992) (“Fee determinations by the district judge pursuant to the Criminal Justice

Act are administrative in character and do not constitute final appealable orders

within the meaning of 28 U.S.C. § 1291.”).

The administrative nature of the process is apparent from its format as well

as its forms. The process is nonadversarial. That is, the court acts ex parte, and

there is no appeal from the denial or reduction of compensation. 10 At most,

grounds for a later appeal might be created by the denial of funds for expert

witnesses, investigators, or other services relating to an adequate defense. In that

latter sense, perhaps, the court at most is acting in a quasi-judicial capacity in the

CJA process. 11

10
See Fed. Courts Study Committee at 6-7; Davis, 953 F.2d at 1498 n.21.
11
We note that there is much support for the replacement of judges with an
independent administrative board, which would handle the judiciary’s present
functions in administering the CJA. See generally Committee to Review the
Criminal Justice Act, Judicial Conference of the United States, Final Report, 1993
WL 69540, at *35-39, 108 nn.oo-ww (Jan. 29, 1993).

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 Finally, the vouchers and related information are not trial documents in any

accepted sense of that term. They do not go to the guilt, innocence or punishment

of a defendant. They are not evidence of the crime. They are entirely ancillary to

the trial.

The fact that the information is filed with the court does not alter the

situation. Not all documents filed with a court are considered “judicial

documents.” See United States v. El-Sayegh, 131 F.3d 158, 161 (D.C. Cir. 1997);

United States v. Amodeo, 44 F.3d 141, 145 (2d Cir. 1995). But see Pansy v.

Borough of Stroudsburg, 23 F.3d 772, 782 (3d Cir. 1994). And, as indicated, the

CJA documents are not directly related to the process of adjudication. The

documents are not even related to the defendant’s indigent status, for which he or

she receives CJA aid.

The conclusion that CJA determinations are not trial documents is further

supported by the fact that neither prosecutors nor federal public defenders are

required to submit to the court documentation of their expenditures in criminal

cases. Cf. United States v. McDougal, 103 F.3d 651, 656-57 (8th Cir. 1996), cert.

denied, 118 S. Ct. 49 (1997).

Looked at as essentially administrative in nature, it is clear that no First

Amendment right of access applies to CJA documents any more than it applies to

administrative documents located in the executive branch. See El Dia, Inc. v.

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Hernandez Colon, 963 F.2d 488, 494-95 (1st Cir. 1992); see, e.g., Calder v.

Internal Revenue Serv., 890 F.2d 781, 783-84 (5th Cir. 1989) (denying First

Amendment right of access to IRS records held by that agency); Capital Cities

Media, Inc. v. Chester, 797 F.2d 1164, 1175-76 (3d Cir. 1986) (denying First

Amendment right of access to records of state agency).

2.

Even if we assume for purposes of argument that these materials are

judicial documents and even if we accept the Albuquerque Journal’s argument

that a First Amendment analysis should apply to these materials, we still reach the

conclusion that the Journal is not entitled to the relief it seeks.

The First Amendment guarantees the right of the press and the public to

attend criminal trials and certain preliminary proceedings in criminal cases. See

Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 13 (1986) (“Press-Enterprise

II”); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 603-06 (1982);

Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 575-81 (1980) (plurality

opinion). But, that right is not absolute. Globe Newspaper Co., 457 U.S. at 606.

The Supreme Court has not yet ruled on “whether there is a constitutional

right of access to court documents and, if so, the scope of such a right.” McVeigh

II, 119 F.3d at 812. However, this court has rejected the argument that such a

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right exists as to certain court documents because providing access to such

information would stretch the First Amendment principles and the Supreme

Court’s analysis in Press-Enterprise II “well beyond their current bounds.”

Lanphere & Urbaniak v. Colorado, 21 F.3d 1508, 1512 (10th Cir. 1994); see, e.g.

McVeigh II, 119 F.3d at 813-14 (rejecting press’s request for access to suppressed

evidence); Lanphere, 21 F.3d at 1511-12 (rejecting law firm’s commercially

motivated request for the names, addresses, and telephone numbers of persons

charged with misdemeanor driving offenses); United States v. Hickey, 767 F.2d

705, 709 (10th Cir. 1985) (rejecting defendant’s request for sealed plea bargain

and court file of his co-conspirator). The question is whether the materials sought

here fall into that category as well.

In Press-Enterprise II, 478 U.S. at 9, the Supreme Court established “tests

of experience and logic” to determine whether a First Amendment right of access

applies to a particular criminal trial related process. In McVeigh II, we did not

decide whether this court would apply the Press-Enterprise II analysis to media

requests for access to court documents, but we assumed without deciding that it

did. 12 McVeigh II, 119 F.3d at 811-12. We proceed the same way here and

12
We also noted that “[a] number of circuits have concluded that the logic
of Press-Enterprise II extends to at least some categories of court documents and
records, such that the First Amendment balancing test there articulated should be
applied before such qualifying documents and records can be sealed.” McVeigh
(continued...)

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assume, without deciding, that the Press-Enterprise II analysis applies to these

documents.

Under the Press-Enterprise II analysis, the “experience” test examines

whether the “place and process have historically been open to the press and

general public.” Press-Enterprise II, 478 U.S. at 8. The “complementary” test for

“logic” asks “whether public access plays a significant positive role in the

functioning of the particular process in question” by, for example, “‘enhanc[ing]

both the basic fairness of the criminal trial and the appearance of fairness so

essential to public confidence in the system.’” 13 Id. at 8-9 (quoting Press-

Enterprise Co. v. Superior Court, 464 U.S. 501, 508 (1984) (“Press-Enterprise

I”)).

If, applying these tests, a qualified First Amendment right is found to exist,

the right may be overcome “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

(...continued)
12

II, 119 F.3d at 811.

The “experience and logic” analysis has not been without its critics. See
13

generally Press-Enterprise II, 478 U.S. at 21-29 (Stevens, J., dissenting); Lillian
R. BeVier, Like Mackerel in the Moonlight: Some Reflections on Richmond
Newspapers, 10 Hofstra L. Rev. 311 (1982); Eugene Cerruti, “Dancing in the
Courthouse”: The First Amendment Right of Access Opens a New Round, 29 U.
Rich. L. Rev. 237 (1995); Kimba M. Wood, Reexamining the Access Doctrine, 69
S. Cal. L. Rev. 1105 (1996).

-22-
a reviewing court can determine whether the closure order was properly entered.”

Press-Enterprise I, 464 U.S. at 510. Interests of those other than the accused may

be considered. See Press-Enterprise II, 478 U.S. at 9 n.2 (citing Globe

Newspaper Co., 457 U.S. at 607-10). Since the district court’s order separately

addressed the vouchers themselves and all backup and other information, our

Press-Enterprise II analysis proceeds on the same basis.

a. Backup Documentation, Motions, Orders, and Hearing
Transcripts

(1) The Experience Test

The Journal has not established and we have not found any general

history—whether prosecution or defense, state or federal judicial system—of

press access to the type of information that the Journal seeks here, or anything

reasonably analogous to it. Of course, the precise information sought here arises

as a result of the passage in 1964 of the Criminal Justice Act, which established a

system for payment of defense services to indigent criminal defendants. Prior to

1964, the private bar provided representation to such defendants without

compensation or payment of such expenses. 14

14
See Fed. Courts Study Committee at 1.

-23-
 Obviously, the CJA is too recent in origin to have developed any “history”

or “tradition” with respect to press access to documents required by that Act.

And, no cases have addressed whether a First Amendment right of access applies

to the CJA backup documentation, motions, orders, and hearing transcripts to

which the Journal seeks access here. The two courts that have addressed a First

Amendment claim of access to CJA vouchers themselves both specifically note

that the press did not seek access to the detailed backup material attached to the

vouchers. See United States v. Suarez, 880 F.2d 626, 631 (2d Cir. 1989) (“[The

newspaper’s] request for CJA information is narrow. [It] disavows any

entitlement to the work product, trial strategy or privileged communications of

defendants or their counsel. . . . [I]t seeks only ‘the barebones data’ of who was

paid, how much and for what services, i.e., only the cover-sheets.”); United States

v. McVeigh, 918 F. Supp. 1452, 1464 (W.D. Okla. 1996) (“Media counsel have

shown their sensitivity to the secrecy required for the defense investigation and

trial preparation by restricting their requests to the amounts paid out to the

attorneys and others providing services to the defense.” (emphasis added)). 15

15
The only other CJA-related case in which a First Amendment claim was
made is United States v. Ellis, 90 F.3d 447 (11th Cir. 1996). There, the Eleventh
Circuit affirmed the release of the transcript from a hearing to determine whether
the defendant was eligible for an appointed attorney under the CJA. Id. at 449-
50. The court did not address whether there was a tradition of access to that type
of proceeding, but rather reasoned that because the press has a qualified First
(continued...)

-24-
 The Albuquerque Journal argues summarily that the long history of

disclosure of attorney’s fees where there is a fee-shifting statute in certain civil

cases weighs in favor of finding a tradition of disclosure of attorney’s fees

authorized under the CJA. We disagree. Fee-shifting statutes such as 42 U.S.C.

§ 1988, are quite different from the situation before us. They do not arise

procedurally until after a civil case is completed, so disclosure of trial strategy

and violation of Sixth Amendment rights are never a concern. Furthermore,

because prevailing parties in these cases seek to obtain money from the opposing

party to cover fees already incurred, the adversarial process applies so that the

paying party may scrutinize and contest the amounts claimed. In the CJA process,

on the other hand, the outcome of the litigation is irrelevant, and the defendant is

in the position of explaining in advance why certain services are justified, in

addition to submitting requests for payment after those services are furnished.

Additionally, as we have noted above, the CJA process is non-adversarial. It is

the judge who protects the interests of the public fisc in a process that has

traditionally been closed to the prosecution. See McVeigh, 918 F. Supp. at 1462;

see also United States v. Rodriguez, 833 F.2d 1536, 1538 (11th Cir. 1987) (per

curiam). Parties in the civil context may also exclude from their requests for

15
(...continued)
Amendment right to attend post-trial proceedings, it has a right to the transcript of
the hearing at issue there. Id. at 450.

-25-
attorney’s fees information that is privileged or attorney work product if the

showing is otherwise sufficient, see Gates v. Gomez, 60 F.3d 525, 535 (9th Cir.

1995), or they may seek a protective order to avoid disclosure of that information.

See Reed v. Rhodes, 934 F. Supp. 1492, 1502 (N.D. Ohio 1996).

The most one could do is search for some pattern of access or non-access

which may have developed in the area. But, as indicated above, there is very

little litigation on the subject, and the litigation which exists establishes, if

anything, a practice of non-access to CJA backup materials and related

information. The record before us discloses nothing which would support the

Journal’s position as to a tradition of access in the history of this country.

In lieu of any history, tradition or established practice with respect to such

materials, we look to the Act and its governing guidelines for whatever insight

they may provide, although such a review is obviously not required (and perhaps

entirely inappropriate) as part of the “experience” factor of Press-Enterprise II.

The CJA itself specifically provides for ex parte applications and

proceedings requesting investigative, expert, or other services necessary for an

adequate defense. See 18 U.S.C. § 3006A(e)(1). 16 Likewise, the Administrative

16
Although the Criminal Justice Act of 1964 has been amended several
times, this section was included in the original act. See Criminal Justice Act of
1964, Pub. L. No. 88-455. The legislative history of the Act indicates that this
section provided for an ex parte proceeding to “prevent[] the possibility that an
(continued...)

-26-
Office of the United States Courts, under the direction of the Judicial Conference,

which pursuant to § 3006A(h), “may, from time to time, issue rules and

regulations governing the operation of plans formulated under this section,” has

provided in its Guide to Judiciary Policies and Procedures: 17

Ex parte applications for services other than counsel under
subsection (e) shall be heard in camera, and shall not be revealed
without the consent of the defendant. The application shall be
placed under seal until the final disposition of the case in the trial
court, subject to further order of the court. Maintaining the secrecy
of the application prevents the possibility that an open hearing may
cause a defendant to reveal his or her defense.

AO Guide, chap. III, part A, § 3.03 (third and fourth emphases added).

Another section of the Administrative Office Guide instructs that

information which is not otherwise routinely available to the public should be

made available unless its release might hurt the investigative process or violate

certain interests of the defendants, witnesses, or attorneys. Id. at chap. V, § 5.01.

However, CJA documents may be judicially placed under seal “until after all

judicial proceedings in the case are completed and for such time thereafter as the

court deems appropriate.” Id. (emphasis added).

16
(...continued)
open hearing may cause a defendant to reveal his defense.” H.R. Rep. No. 88-864
(1963), reprinted in 1964 U.S.C.C.A.N. 2990, 2990.

The Administrative Office Guide was amended slightly after the CJA was
17

amended in 1996 and 1997. The quoted sections are from the Guide as it
appeared when the district court was considering the Albuquerque Journal’s
motion to unseal the CJA documents.

-27-
 We conclude, therefore, that no history, experience or tradition of access

exists as to the release at any time of backup documentation, motions, orders, and

hearing transcripts regarding requests for CJA assistance.

This conclusion could end our analysis on the ground, adopted by some

courts, that the Press-Enterprise II analysis requires both the experience and logic

prongs to be satisfied. See, e.g., United States v. El-Sayegh, 131 F.3d 158, 161

(D.C. Cir. 1997); Baltimore Sun Co. v. Goetz, 886 F.2d 60, 64 (4th Cir. 1989).

However, we proceed to the logic prong because the procedure here is relatively

new. See Seattle Times Co. v. United States District Court, 845 F.2d 1513, 1516

(9th Cir. 1988); see also United States v. Chagra, 701 F.2d 354, 363 (5th Cir.

1983).

(2) The Logic Test

As indicated above, the logic test asks whether public access would play a

significant positive role in the functioning of the particular process. 18 Press-

In United States v. McVeigh, 106 F.3d 325 (10th Cir. 1997) (per curiam)
18

(“McVeigh I”), we identified six structural interests used by the Supreme Court to
determine that a constitutional right of access to criminal trials exists. These
interests are identical to those identified by the Third Circuit as “societal
interests” cited by the Supreme Court in Richmond Newspapers that are fostered
by open court proceedings. See United States v. Simone, 14 F.3d 833, 839 (3rd
Cir. 1994). They include: “informing the public discussion of government
affairs, assuring the public perception of fairness, promoting the
(continued...)

-28-
Enterprise II, 478 U.S. at 8. For the reasons set forth below, we conclude that

public access to the backup documentation, motions, orders, and hearing

transcripts will not play a significant positive role in the functioning of the CJA

process, and that, in fact, access would play, as in McVeigh II, 119 F.3d at 813, a

negative role in the process. In short, logic does not support release of these

documents.

Just as the grand jury process is the “classic example” of a government

process that would be totally frustrated if conducted openly, see Press-Enterprise

II, 478 U.S. at 9 (citing Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211,

218 (1979)), so too would CJA proceedings be frustrated if conducted openly.

The CJA process is the defendant’s means of preparing a defense, and keeping

that process closed will prevent the government from being “tipped off” as to the

direction in which the defendant’s trial strategy is heading. See In re Grand Jury

Proceedings (Smith), 579 F.2d 836, 840 (3rd Cir. 1978); see also Franks v.

Delaware, 438 U.S. 154, 169 (1978).

18
(...continued)
community-therapeutic effect of criminal justice proceedings, providing a public
check on corrupt practices, intimidating potential perjurers, and generally
enhancing the performance of all involved in the process.” McVeigh I, 106 F.3d
at 336. These factors are illustrative, not exclusive, and no one factor controls or
predominates. We evaluate the circumstances in their entirety.

-29-
 The CJA, which requires that a defendant reveal a high degree of detail

about his or her reasons for requesting assistance other than counsel in preparing

for trial, see United States v. Kennedy, 64 F.3d 1465, 1470 (10th Cir. 1995);

United States v. Mundt, 508 F.2d 904, 908 (10th Cir. 1974), recognizes that

confidentiality of that detail is vital to the proper functioning of the CJA process.

See Marshall v. United States, 423 F.2d 1315, 1317-19 (10th Cir. 1970); see also

Lawson v. Dixon, 3 F.3d 743, 751 (4th Cir. 1993); United States v. Edwards, 488

F.2d 1154, 1160-62 (5th Cir. 1974). Therefore, the CJA provides that the process

for requesting assistance other than counsel is to be ex parte, see 18 U.S.C.

§ 3006A(e)(1), so as not to reveal the strengths and weaknesses of a defendant’s

case and his or her trial strategy, including possible defenses, witnesses, and

evidence to be used at trial. Likewise, the backup documentation to the attorneys’

vouchers reveals much of the same information as that contained in requests for

services other than counsel, and the same reasons justifying closure of those

proceedings apply to the backup documentation.

Another reason grand juries function best in secret is because secrecy

“encourage[s] free and untrammeled disclosures by persons who have

information.” Douglas Oil Co., 441 U.S. at 219 n.10 (quotations omitted).

Without an assurance that the information revealed at CJA hearings and in

documents submitted to the court will not be disclosed, a defendant and his or her

-30-
counsel would be discouraged from fully disclosing the information to the court.

Cf. State v. Ballard, 428 S.E.2d 178, 183 (N.C. 1993) (“Only in the relative

freedom of a nonadversarial atmosphere can the defense drop inhibitions

regarding its strategies and put before the trial court all available evidence of a

need for psychiatric assistance.”); United States v. Huckaby, 43 F.3d 135, 138

(5th Cir. 1995) (“Disclosure of [presentence reports] to the public may stifle or

discourage that vital transmission of information by the defendants . . . and by

cooperating third parties.”).

Also, information obtained by the public prior to judgment could influence

the jury or prospective jury and would provide the government with “unauthorized

discovery which is forbidden under our concept of criminal procedure.” Edwards,

488 F.2d at 1162; see Fed. R. Crim. P. 16(b)(2); see also Marshall, 423 F.2d at

1318. And information obtained after judgment could still be used by the

government to investigate and bring new charges against a defendant or other

individuals, including potential witnesses and other sources of information.

These ramifications would ultimately decrease the information the court could use

to make a decision, would hinder the court’s fact-finding ability, see Grove Fresh

Distribs., Inc. v. Everfresh Juice Co., 24 F.3d 893, 897 (7th Cir. 1994) (fostering

more accurate fact finding should be a positive role of public scrutiny), and

-31-
would, therefore, impede its ability to correctly decide whether and how much

assistance to grant the defendant.

Moreover, much of the information disclosed to the court during the CJA

process does not ultimately become part of the criminal trial. A defendant’s

request for investigative services to look into possible defenses, for example, will

not always be fruitful for the defense. Likewise, a defendant’s request for funds

to interview potential witnesses does not always result in the defendant’s use of

those witnesses at trial. The danger in disclosing this type of information was

manifest in Marshall, 423 F.2d at 1319, where the government learned of the

existence of a witness who ultimately testified against the defendant only because

the district court had erroneously allowed the government to attend the CJA

hearing.

In McVeigh II, 119 F.3d at 813, we held that press access to suppressed

evidence would play a negative role in the functioning of the criminal process by

exposing the public and potential jurors in particular to incriminating evidence

not to be introduced at trial. Press access to information disclosed in the CJA

process, most of which will not be introduced in the trial, will also play a

negative role in the criminal process.

In addition, the CJA process is part of the means by which an indigent

defendant obtains discovery. The detail required of the defendant in the CJA

-32-
process includes the specific information he expects to find. See Kennedy, 64

F.3d at 1470; Mundt, 508 F.2d at 908. Discovery proceedings are fundamentally

different from other proceedings to which courts have recognized a First

Amendment right of access. See Anderson v. Cryovac, Inc., 805 F.2d 1, 11-12

(1st Cir. 1986). Therefore, disclosing the information a court considers in making

what is essentially a determination of the scope of discovery would make the CJA

process more complicated and burdensome. Id. at 12; see also Seattle Times Co.

v. Rhinehart, 467 U.S. 20, 32-33 (1984) (holding that party had no First

Amendment right to disseminate information obtained by the “legislative grace”

of discovery which “may be unrelated, or only tangentially related, to the

underlying cause of action”).

The Journal emphasizes the positive role access would provide by ensuring

the quality of the judge’s decision-making, by limiting the potential for abuse by

the judge and defense counsel, and by educating the public as to how its money is

being spent in criminal defense. Intervenor’s First Br. at 14-17. As we have

discussed above, we do not believe the judge’s decision-making will be improved

by an open process, and it may well be hindered. In addition, we point out that

the judge’s involvement in the process is the protection against corruption, as

opposed, for instance, to expenditures by the prosecution and Federal Public

Defenders Offices which in the detail sought here, are not subject to judicial

-33-
supervision or public scrutiny. We see little reason to believe that “public

scrutiny” would sway these types of rulings by the court.

Obviously, disclosure would provide some information to the public, but

we agree with the Ninth Circuit that “[w]ere we to accept this argument, few, if

any, judicial proceedings would remain closed. Every judicial proceeding, indeed

every governmental process, arguably benefits from public scrutiny to some

degree, in that openness leads to a better-informed citizenry and tends to deter

government officials from abusing the powers of government.” Times Mirror Co.

v. United States, 873 F.2d 1210, 1213 (9th Cir. 1989). Yet, “because the integrity

and independence” of proceedings such as the grand jury, jury deliberations, and

the internal communications of the court “are threatened by public disclosures,

claims of ‘improved self-governance’ and ‘the promotion of fairness’ cannot be

used as an incantation to open these proceedings to the public.” Id.

The Albuquerque Journal’s “information” arguments would apply to every

governmental process, including those of the executive branch, where the

Supreme Court has extended no First Amendment right of access. See El Dia,

Inc. v. Hernandez Colon, 963 F.2d 488, 494-95 (1st Cir. 1992); see, e.g., Calder

v. Internal Revenue Serv., 890 F.2d 781, 783-84 (5th Cir. 1989) (denying First

Amendment right of access to IRS records held by that agency); Capital Cities

Media, Inc. v. Chester, 797 F.2d 1164, 1175-76 (3d Cir. 1986) (denying First

-34-
Amendment right of access to records of state agency). Indeed, there is no First

Amendment right of access to government processes in general. See Houchins v.

KQED, Inc., 438 U.S. 1, 14-15 (1978). And although Congress can choose to

open some of those processes, Justice Stewart has commented that the

“Constitution itself is neither a Freedom of Information Act nor an Official

Secrets Act.” Id. at 15 (quoting Stewart, Or of the Press, 26 Hastings L.J. 631,

636 (1975)); see also In re Motions of Dow Jones & Co., 142 F.3d 496, 502 (D.C.

Cir. 1998) (“The Chief Judge can allow some public access [to grand jury-related

matters, b]ut it will be done because the Federal Rules of Criminal Procedure

confer this authority on district courts, not because the First Amendment demands

it.”).

Moreover, the linchpin of the Albuquerque Journal’s claim to a First

Amendment right of access is that judicial discretion has been applied. Yet, in

many contexts, courts have rejected a constitutional right of access where judicial

discretion has been applied, even in proceedings relating to the guilt or innocence

of the defendant and even though the public would have been educated and the

participant’s actions would have been checked. These include: presentence

reports relied on by the court in making a sentencing decision, United States v.

Corbitt, 879 F.2d 224, 229-30 (7th Cir. 1989); pre-indictment search warrant

affidavits used by the court in considering search warrant applications, Baltimore

-35-
Sun Co. v. Goetz, 886 F.2d 60, 64-65 (4th Cir. 1989); Times Mirror Co., 873 F.2d

at 1218; documents considered by the court in ruling on civil discovery motions,

Cryovac, Inc., 805 F.2d at 11-12; grand jury proceedings and ancillary

proceedings or documents related thereto, In re Motions of Dow Jones & Co., 142

F.3d at 498-99, 502-03; and evidence actually ruled inadmissible by the court in

suppression hearings, McVeigh II, 119 F.3d at 813. 19 In the instant case, the CJA

process is not even a preliminary process relating to the guilt of the defendant,

nor does the information contained in the CJA documents relate to the core

proceeding—the determination of the guilt or innocence of the defendant.

As an alternative argument, the Journal contends that the process will not

be hindered if the court selectively redacts any information that may hurt the

process. Intervenor’s Third Br. at 13-14. After reviewing many of the materials

contained in the record of this case, we disagree. The hearing transcripts,

motions, orders, and backup documentation are replete with sensitive information,

the release of which would harm the CJA process as discussed above. The public

has an interest not only in the way its funds are used but also in seeing that

judicial processes are efficient and that defendants are given the “‘basic tools’”

19
We recognize that the courts are not in complete harmony on all of these
judicial proceedings. See, e.g., In re Search Warrant for Secretarial Area Outside
Office of Gunn, 855 F.2d 569, 572-75 (8th Cir. 1988) (holding qualified First
Amendment right of access applies to search warrant affidavits, but interests
weigh in favor of non-disclosure).

-36-
and “‘raw materials integral to’” the presentation of an adequate defense so as to

ensure a fair trial. See Kennedy, 64 F.3d at 1473 (quoting Ake v. Oklahoma, 470

U.S. 68, 76 (1985)).

Requiring the release of the requested materials would entail an

extensive—not to mention expensive—use of court and counsel effort by forcing

counsel to be more careful in the information presented to the court for fear of

future disclosure and by forcing the court and counsel to ensure that most of the

information in the CJA materials is ultimately redacted. Cf. In re Search Warrant

for Secretarial Area Outside Office of Gunn, 855 F.2d at 574-75 (holding that

even where the First Amendment right of access applied, line-by-line redaction of

the sealed documents was not practicable, and thus not required); see also Seattle

Times Co., 476 U.S. at 36 n.23; Cryovac, Inc., 805 F.2d at 12. Especially in a

high profile case like this one, effective, efficient, and fair procedures must be

employed. See McVeigh II, 119 F.3d at 813. Access only to those portions of the

materials that do not contain the implicated information would be a Pyrrhic

victory for access, with little benefit to the functioning of the system. See

Cryovac, Inc., 805 F.2d at 12.

In sum, neither experience nor logic lead us to conclude that there is a First

Amendment right of access to CJA-related backup documentation, motions,

orders, and hearing transcripts.

-37-
 b. CJA Vouchers

We find it unnecessary to address whether there is a constitutional right to

the vouchers themselves because the district court’s order already requires release

of the vouchers—a decision we uphold on other grounds discussed below. As we

said at the outset of this discussion, we avoid deciding cases on constitutional

grounds if they can be resolved on another basis. Since the Journal already has

the relief it seeks as to disclosure in general, any opinion on constitutional

grounds would be merely advisory. 20

This conclusion still leaves unanswered the Journal’s arguments with

respect to the timing of the vouchers’ release. It is the Journal’s position that

access to the vouchers at the end of trial is not enough—immediate access is

required. We disagree. In our view, there is no constitutional right in this case to

timing as opposed to access itself. Here, the Defendants are represented by CJA

attorneys, who handle only a minority of the total criminal caseload, and of that

minority, only a minority of all CJA attorneys submit vouchers on an interim

basis, so, at best, we are dealing with a fraction of a fraction of cases. Further,

20
The CJA has recently been amended so as to specifically address the issue
of access to the vouchers and to specify the timing of that access. See infra note
21 and accompanying text. Therefore, any ruling here would be of limited import
in any case because this statute is now in effect and makes constitutional analysis
unnecessary. More to the point, it takes the issue here out of the “capable of
repetition yet evading review” category. Any future argument by the Journal will
necessarily begin with an analysis of the amended statute.

-38-
we must observe that while vouchers are required to be submitted, they are not

required to be submitted on an interim basis. Thus, it is fortuitous that here the

vouchers have been submitted on an interim basis, which depends to a large

extent on the attorneys’ financial strength. Certainly, the Journal could not argue

that the First Amendment would compel CJA attorneys to submit vouchers on an

interim basis because there is a constitutional right to immediate access to

accruing data, as opposed to access itself.

To support its timing argument, the Journal relies on United States v.

Suarez, 880 F.2d 626 (2d Cir. 1989), where the Second Circuit upheld on First

Amendment grounds a district court order permitting the press access to interim

vouchers. We think Suarez is distinguishable. In that case, the district court’s

order only addressed present access to interim vouchers. No order existed

allowing access to vouchers at the end of trial, and the district court was not

called upon and did not address the interim voucher issue in such a context.

Thus, the Second Circuit’s review was limited, and there is no way to discern

from the opinion how much the reasoning was driven by the subject of access

itself, and how much significance, if any, the court placed on timing. In short, we

do not know how the Second Circuit would have ruled if faced with a situation

like that before us, where the district court has already ordered release of the

vouchers at the end of the proceedings.

-39-
 Likewise, we find the Journal’s reliance throughout its briefs on United

States v. McVeigh, 918 F. Supp. 1452 (W.D. Okla. 1996), contrary to its position

with respect to timing. There the court never made clear whether it found a

qualified First Amendment right or whether it based its decision on the common

law, see McVeigh, 918 F. Supp. at 1464, but its conclusion was that interim

vouchers should not be released. Id. at 1465.

If we were to apply the experience and logic test to the issue of immediate

access to the vouchers, it is clear for all the reasons stated earlier in this opinion,

and more, that it would fail. In the end, we agree with the McVeigh court that

revealing the amounts of interim payments is not a reasonable alternative to full

disclosure because it would “distort the public perception about the fairness of the

process because the expenditures, out of context, would emphasize costs without

any information about benefits obtained.” Id. at 1465.

B. Common Law Access and the CJA Statutory Scheme

The Albuquerque Journal argues that even if we do not find a First

Amendment right of access, all of the CJA materials should still be unsealed

pursuant to the common law and/or the CJA statutory scheme. We reject the

Journal’s common law argument for two reasons. First, the statute and

regulations discussed below occupy this field and would supercede the common

-40-
law right even if one existed. See United States v. Texas, 507 U.S. 529, 534

(1993); see also In re Motions of Dow Jones & Co., 142 F.3d 496, 504 (D.C. Cir.

1998) (common law right of access to grand jury-related information is

supplanted by Fed. R. Crim. P. 6(e)(5), 6(e)(6)); Lanphere & Urbaniak v.

Colorado, 21 F.3d 1508, 1511 (10th Cir. 1994) (common law right of access to

criminal justice records is supplanted by Colorado statute). Second, as we have

discussed above, the CJA materials are not “judicial documents” as that term is

used by courts that have applied the common law right of access. Rather, these

are administrative documents, see United States v. Davis, 953 F.2d 1482, 1498

n.21 (10th Cir. 1992), to which there is no right of access under the common law.

We therefore analyze to what extent the materials should be released under the

CJA.

The CJA was enacted in 1964 “to insure effective representation for those

charged with a crime or confronted with the risk of being deprived of

constitutional rights in ancillary proceedings.” United States v. Smith, 633 F.2d

739, 741 (7th Cir. 1980) (citing H.R. Rep. No. 91-1546 (1970), reprinted in 1970

U.S.C.C.A.N. 3982, 3983); see also United States v. Edwards, 488 F.2d 1154,

1161-62 (5th Cir. 1974). To achieve its purpose, the CJA provides for both

representation by counsel and “other services necessary for adequate

representation.” 18 U.S.C. § 3006A(e)(1).

-41-
 The version of the statute in effect for this case provides that the Judicial

Conference of the United States “may, from time to time, issue rules and

regulations governing the operation of plans formulated under this section.” 18

U.S.C. § 3006A(h). Accordingly, the Administrative Office, under the direction

of the Judicial Conference, has promulgated rules relating to the release of all

types of CJA information. See AO Guide, chap. III, part A, § 3.03; chap. V,

§ 5.01. The AO Guide includes the forms to be used in conjunction with the CJA

process, including forms 20, 21, 30, and 31 discussed above. We apply the

version of the AO Guide applicable to this case in our discussion below.

Under the statute and regulations, the information related to counsel’s fees

is presumptively accessible to the public. It may be sealed at the discretion of the

district court upon motion of the defendant or on the court’s own motion.

Similarly, this information that is placed under seal may be released later at the

court’s discretion, after consideration of the interests discussed below. To the

contrary, information pertaining to the application for services other than counsel

is sealed from the outset. After trial, the court has the discretion, after finding on

the record that the same interests are protected, to release this information as

well.

Although the CJA has been amended twice since the present case was

commenced and both amendments have altered the provisions for access to CJA

-42-
vouchers, 21 the amendments essentially codify the regulations. However, one

21
The Judiciary Appropriations Act of 1998, Pub. L. No. 105-119, § 308,
applies, pursuant to the Act, to cases filed on or after January 25, 1998. This
amendment provides that compensation paid to counsel should be disclosed to the
public upon approval by the court. Any detailed information on vouchers
submitted prior to the end of trial is to be redacted, and in any case, the court
must consider Fifth and Sixth Amendment rights, the attorney-client privilege, the
work product privilege, safety of any person, and any other interest justice may
require in deciding what portions of the vouchers to release. The amendment also
provides that the compensation paid to counsel should be categorized essentially
as it currently is on CJA form 20. See form 20, attached hereto; 18 U.S.C.
§ 3006A(d)(4).

Prior to the most recent amendment, the CJA was amended by the
Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132,
§§ 108, 903, which also amended 21 U.S.C. § 848(q) pertaining to death penalty
representation, and applies to cases commencing on or after April 24, 1996. This
amendment provides that “[t]he amounts paid” for representation by counsel and
for other services “shall be made available to the public.” 18 U.S.C.
§ 3006A(d)(4), (e)(4) (emphasis added). The subsequent amendment discussed
above replaced this language as to counsel only.

Although the version of the CJA applicable to this case does not include
either of these amendments, they are instructive in that they indicate a shift
toward increased access to the amounts paid out under the CJA. However, they
are equally informative in that they do not indicate a legislative desire to release
the other CJA information which the Albuquerque Journal is seeking here. The
legislative history of the amendments indicates that the change was intended to
reach the amounts listed on the CJA vouchers, but not the backup documentation
or other CJA-related documents. Senator Domenici, who introduced the language
in the most recent amendment, discussed the backup documents and the great
amount of detail that they contain. He then stated, “clearly if this information
were subject to public disclosure the alleged criminal’s sixth amendment rights
might be compromised. My bill does not seek to make this sensitive information
subject to public disclosure, but rather continues to leave it to the Judge to
determine if and when it should be released.” 143 Cong. Rec. S8069-70 (daily ed.
July 24, 1997) (statement of Sen. Domenici). While we recognize that statements
(continued...)

-43-
amendment specifically provides that amounts expended under the CJA “shall be

made available to the public,” 18 U.S.C. § 3006A(e)(4), which apparently takes

the discretion away from the district court as to the release of the totals. In death

penalty cases, the amounts are to be made available to the public “after the

disposition of the petition.” 21 U.S.C. § 848(q)(10)(C). In addition, one of the

amendments, applicable only to death penalty cases, changes the presumption

from an ex parte hearing for services other than counsel to a process which is not

to be held ex parte “unless a proper showing is made concerning the need for

confidentiality.” 21 U.S.C. § 848(q)(9). Our interpretation of the statute in effect

for this case is consistent with the amendments, except as those amendments alter

access to CJA information in death penalty cases.

1. Motions, Orders, and Hearing Transcripts Related to the
Retention and Compensation of Services Other Than Counsel

Services other than counsel that are necessary for adequate representation

may be obtained by a defendant who is financially unable to obtain them, upon an

ex parte application, heard by the court in camera. See 18 U.S.C. § 3006A(e); AO

Guide, chap. III, part A, § 3.03. The application, which is not a voucher but is

21
(...continued)
like this are not conclusive or binding, we find it informative that our independent
review of the amendment is consistent with the drafter’s view.

-44-
usually an ex parte motion followed by an ex parte hearing, “shall not be revealed

without the consent of the defendant. The application shall be placed under seal

until the final disposition of the case in the trial court, subject to further order of

the court. Maintaining the secrecy of the application prevents the possibility that

an open hearing may cause a defendant to reveal his or her defense.” Id. § 3.03.

Similar procedures are provided in death penalty cases under the version of the

statute applicable to this case. See 21 U.S.C. § 848(q)(9).

The legislative history of the act indicates that the need for secrecy in

obtaining services other than counsel is to prevent “the possibility that an open

hearing may cause a defendant to reveal his defense.” H.R. Rep. No. 88-864

(1963), reprinted in 1964 U.S.C.C.A.N. 2990, 2990; see also Marshall v. United

States, 423 F.2d 1315, 1318 (10th Cir. 1970). Because the Defendants are

“act[ing] jointly, sharing responsibility for motions and investigation and

attending joint strategy sessions . . . to avoid duplicative efforts and to minimize

expenses,” United States v. Gonzales, No. CR-95-538-MV, 1997 WL 155403, at

*12 (D.N.M. Feb. 11, 1997), the release of any CJA documents prior to the last

Defendant’s sentencing would prejudice that Defendant by causing him “to reveal

his defense.” H.R. Rep. No. 88-864 (1963), reprinted in 1964 U.S.C.C.A.N.

2990, 2990. Thus, we reject the Albuquerque Journal’s argument that materials

-45-
related to services other than counsel should be released prior to the end of all

Defendants’ sentencing hearings.

The district court, however, because it found a First Amendment right of

access, ordered that all CJA-related documents, motions, orders, and hearing

transcripts be released after the last remaining Defendant is sentenced. Pursuant

to the CJA statutory and regulatory scheme, we conclude that this information is

presumptively closed. The scheme favors continuing confidentiality of the

information, and given the interests identified in the discussion of the logic prong

of the constitutional analysis above, we conclude that the district court abused its

discretion in ordering that the motions, orders, and hearing transcripts related to

services other than counsel be released.

2. Materials Related to the Appointment and Compensation of
Counsel and the Backup Documentation to Vouchers for
Services Other Than Counsel

The CJA provides that appointment of counsel is to be achieved after

determining that the defendant is financially unable to obtain counsel pursuant to

a plan implemented by each district court. See 18 U.S.C. § 3006A(b). Similar

procedures apply to death penalty cases. See 18 U.S.C. § 3005; 21 U.S.C.

§ 848(q)(4)-(8), (10). Neither the statute nor the Administrative Office’s rules

specify whether this procedure is to be done ex parte.

-46-
 Section 5.01 of the AO Guide changes the presumption from one of secrecy

in non-attorney retention and compensation to one of openness for information

not otherwise routinely available to the public, while still giving the court the

discretion to place CJA-related materials under seal “until after all judicial

proceedings 22 in the case are completed and for such time thereafter as the court

deems appropriate.” This section of the AO Guide also applies to the backup

documentation to the vouchers for services other than counsel. 23 Information

should be released unless “its release might . . . unduly intrude upon the privacy

of attorneys or defendants or compromise defense strategies, investigative

procedures, attorney work product, the attorney-client relationship or privileged

information provided by the defendant or other sources.” Id.

In our discussion of the logic prong of the Press-Enterprise II analysis

above, we considered several of these factors, concluding that access to CJA

materials, including backup documentation to CJA forms 20, 21, 30, and 31, and

motions, orders, and hearing transcripts related to the appointment of counsel,

would not play a significant positive role on the functioning of the CJA process.

In addition to those factors discussed above, we conclude that the other factors

22
The current version of the AO Guide, which is not applicable to this case,
clarifies that “all judicial proceedings” includes appeals.
23
We do not believe that § 5.01 changes the presumption in favor of sealing
materials related to the ex parte process for obtaining services other than counsel
as provided in the statute, 18 U.S.C. § 3006A(e) and the AO Guide, § 3.03.

-47-
also favor continued sealing of these CJA materials, even after sentencing is

completed.

The district court considered several of these other factors, but did so in the

context of its Press-Enterprise II analysis of “higher values.” First, the district

court found, and we agree, that allowing disclosure of the backup documentation

to the attorneys’ requests for compensation may “subject innocent people who

have been interviewed or investigated by Defendants to public speculation about

their involvement in the crime.” Gonzales, 1997 WL 155403, at *8. This interest

is similar to one justification for keeping grand jury proceedings secret even after

trial is over. See Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 219

(1979); see also United States v. Corbitt, 879 F.2d 224, 231 & nn.8-9 (7th Cir.

1989); Times Mirror Co. v. United States, 873 F.2d 1210, 1216 (9th Cir. 1989).

In addition, several witnesses are in the Witness Protection Program, and

information, such as the places to which defense counsel have traveled, which

could reveal their location should not be disclosed. See United States v. Hickey,

767 F.2d 705, 708 (10th Cir. 1985); cf. Globe Newspaper Co. v. Superior Court,

457 U.S. 596, 607-08 (1982). Non-witnesses also have a privacy interest in

retaining anonymity for similar safety reasons. We disagree, therefore, with the

district court’s apparent conclusion that a non-defendant’s privacy interest is only

valid until the “conclusion of litigation.” Gonzales, 1997 WL 155403, at *8.

-48-
 Second, release of the backup documentation, motions, orders, and hearing

transcripts related to the appointment and compensation of counsel and of the

backup documentation to vouchers for services other than counsel will intrude on

the privacy interests of the Defendants and will reveal privileged information

provided by the Defendants. As discussed above, disclosure of this CJA

information may implicate the Defendants’ Fifth Amendment rights as to the

instant crime. It may also put the government “in a position to investigate and

bring new charges against [defendants who inculpate themselves in uncharged

criminal conduct in order to obtain an adequate defense].” Supplemental R. Vol.

I, Tab 2073 at 5 n.1 (district court order granting in part defendants’ motion to

stay pending appeal). These privacy interests also do not cease at the conclusion

of the litigation.

Third, unsealing the backup documentation, motions, orders and hearing

transcripts related to the appointment and compensation of counsel and the

backup documentation to vouchers for services other than counsel would reveal

information protected by the attorney-client privilege and by the attorney work-

product doctrine. In addition to the attorney being reluctant to provide the court

with information necessary to obtain services for the defense as discussed

-49-
above, 24 the specter of the release of detailed backup documentation to the

attorney’s vouchers and non-attorney’s vouchers, which, the district court found,

“often contain information directly or indirectly implicating the attorney-client

privilege,” would make a defendant “reluctant to reveal information that could

help the attorney in the defense of the case, or in analyzing the strength of the

case for trial.” 25 Gonzales, 1997 WL 155403, at *8; see Crystal Grower’s Corp.

v. Dobbins, 616 F.2d 458, 461 (10th Cir. 1980). The importance of this privilege

and doctrine is well-established, see Upjohn Co. v. United States, 449 U.S. 383,

389-92 (1981), a point which the Supreme Court just recently reemphasized in

holding that the attorney-client privilege extends beyond the death of the client.

See Swidler & Berlin v. United States, No. 97-1192, — S. Ct. —, 1998 WL

333019, at *3-7 (U.S. June 25, 1998). Certainly, then, the privilege does not

terminate when the Defendants’ trials are over.

Accordingly, we conclude that the district court abused its discretion in

ordering that the backup documentation, motions, orders and hearing transcripts

24
We also point out that potential disclosure of the information while the
trial is still pending would encourage defense counsel to wait until the trial is
over before submitting vouchers for compensation. In complicated cases such as
death penalty prosecutions, where “[i]t is urged that the court permit interim
payment of compensation,” AO Guide, chap. VI, § 6.02(C), such a choice to be
made by counsel is yet another disadvantage indigent defendants face.

Disclosure of work product and privileged information would also give
25

the government information as to the methods particular defense counsel use in
combating prosecutions.

-50-
related to the appointment and compensation of counsel and the backup

documentation to vouchers for services other than counsel should be unsealed

after the conclusion of all Defendants’ sentencing hearings.

3. Vouchers and Total Expenditures

Finally, we address the district court’s order that the total attorney fees and

overall total paid through CJA funds be released for each Defendant after that

Defendant is sentenced and that all of the vouchers themselves (without the

backup documentation) be released at the end of all Defendants’ sentencing

hearings. The district court found that because the vouchers (forms 20, 21, 30,

and 31) themselves contain trial strategy, Gonzales, 1997 WL 155403, at *7,

release of the entire vouchers prior to the conclusion of all Defendants’ trials

would harm Defendants not yet tried. The court considered the interests involved

and properly applied its discretion to release the total amount spent on counsel

and the total amount spent overall on each Defendant at the end of that

Defendant’s sentencing hearing and to save the release of the vouchers

themselves until all Defendants’ sentencing hearings are completed. We find no

abuse in the court’s conclusion that forms 21 and 31, relating to the compensation

of experts, investigators, and others, contain trial strategy. Although we question

how much trial strategy is revealed on forms 20 and 30 regarding compensation to

-51-
counsel, we cannot say the court abused its discretion in waiting to release them

until the end of all sentencing hearings since the forms themselves require the

attorneys to specify certain information, which could reveal strategy. 26

The district court’s order that the vouchers should ultimately be released is

also consistent with the two recent amendments to the CJA, which require that the

amounts expended for counsel and other services under the CJA be disclosed.

See supra note 21. The most recent amendment provides that the amount paid to

counsel is to be divided into twelve categories, which roughly match the

26
There is no disagreement between us and the dissenting opinion on the
proposition that there is a presumption of openness with respect to the cover
sheets, at least as to counsel fees. See supra p. 47. This presumption has long
been in the Guidelines and has been codified by amendments to the CJA effective
January 25, 1998. See supra note 21. But the presumption is only the beginning
of the analysis. Both the cited Guidelines and the amended statute contain a
laundry list of items which can override the presumption. Overarching the
presumption and these conditions is the proposition that the determination
whether to disclose immediately or to defer disclosure, whether in redacted or
unredacted form, is a matter of discretion for the trial judge. There are sound
reasons for this, which are especially apparent in this case. The trial judge is in a
position to evaluate at first hand the costs and benefits associated with disclosure
or deferred disclosure. The case before us is particularly illustrative because of
the number of defendants, the fact that some are testifying against others, the fact
that the court has ordered the defendants to share certain information and
otherwise work with one another, and, in general, the extraordinary size of these
proceedings. This case presents a perfect example of the appellate court’s
responsibility to respect its standard of review in cases involving discretionary
judgment calls by the district court. Obviously, if we were exercising a de novo
standard of review, we might come to a different conclusion than did the trial
judge. But our review is necessarily deferential, and we should be slow to
second-guess the trial judge’s prerogative in a matter this complex. It is this
latter point where, we believe, the dissent misses the mark.

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categories presently on CJA forms 20 and 30, to be released pursuant to the

court’s order. Therefore, all of the vouchers may properly be disclosed, without

the backup documentation, at the end of the last Defendant’s sentencing hearing,

in accordance with the district court’s order. And as the district court has made

clear, its order has not foreclosed the Defendants from seeking a protective order

with regards to sensitive information that may be contained on the vouchers

themselves. See Supplemental R. Vol. I, Tab 2073 at 6 n.2 (district court order

granting in part defendants’ motion to stay pending appeal).

Finally, even if we were to assume that a qualified First Amendment right

applied to the vouchers as the Second Circuit held in Suarez, 880 F.2d at 631, the

interests we have already identified, and that the district court balanced, lead us to

agree with the district court’s narrowly tailored conclusion that the vouchers

should remain sealed until all Defendants are sentenced, except for the total

amount paid to the attorney and the total amount spent overall, which will be

released at the conclusion of each Defendant’s sentencing hearing.

III.

CONCLUSION

We GRANT a writ of mandamus on the cross-appeals and DENY a writ of

mandamus on the appeal. We VACATE that portion of the district court’s order

-53-
which releases the backup documentation, motions, orders, and hearing

transcripts. That portion of the district court’s order which releases CJA forms

20, 21, 30, and 31, without accompanying backup documentation, at the

conclusion of the last Defendant’s sentencing hearing, unless interests favor

keeping the forms sealed until after any direct appeals, shall remain in force. In

addition, that portion of the district court’s order releasing, upon completion of

each Defendant’s sentencing, the total amount paid to that Defendant’s attorney

and the total amount spent overall for that Defendant shall remain in force.

All outstanding motions are DENIED.

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Attachments not available electronically.
Nos. 97-2064, 97-2095, 97-2101, United States v. Gonzales

BRISCOE, Circuit Judge, concurring and dissenting:

I agree there is no First Amendment right of access to CJA documents

because they are administrative in nature, 1 and that any common law right of

access was preempted by the CJA. I also agree that under the CJA and rules

promulgated under it, the district court should not have ordered that the backup

documentation, motions, orders, and hearing transcripts be unsealed at the

conclusion of all defendants’ sentencing hearings. 2 However, I do not agree that

the district court could properly keep the CJA forms and the amounts paid for

counsel and other services sealed until the conclusion of each defendant’s trial.

The version of § 5.01 of the guide to Judiciary Policies and Practices in

effect when this case commenced governs “Procedures for the Release of

Information Pertaining to Criminal Justice Act Activities,” and provides:

Generally, such information which is not otherwise routinely
available to the public should be made available unless it is
classified pursuant to an executive order or its release might
adversely affect the national defense or foreign policy interest of the
United States, unduly intrude upon the privacy of attorneys or
defendants or compromise defense strategies, investigative

1
However, I question the majority’s alternative conclusion that, even if
CJA documents are judicial rather than administrative in nature, there would be
no First Amendment right of access to them. See United States v. Suarez, 880
F.2d 626 (2d Cir. 1989).
2
I question whether they must remain sealed in perpetuity. At some point,
after appellate and post-conviction review is over, the interests served by keeping
the materials sealed may no longer justify denial of access.
 procedures, attorney work product, the attorney-client relationship
or privileged information provided by the defendant or other sources
(see 5 U.S.C. § 552(b)).
Upon request, or upon the court’s own motion, documents
pertaining to Criminal Justice Act activities maintained in the clerk’s
open files, which are generally available to the public, may be
judicially placed under seal or otherwise safeguarded until after all
judicial proceedings in the case are completed and for such time
thereafter as the court deems appropriate. Interested parties should
be notified of any modification of such an order.

Under § 5.01, CJA information is presumptively available unless the court

concludes it should be sealed to avoid undue intrusion upon the privacy of

attorneys or defendants, compromise defense strategies, investigative procedures,

attorney work product, the attorney-client relationship, or privileged information.

CJA voucher forms for attorney services specify the hours claimed for generic

categories of services: interviews and conferences, obtaining and reviewing

records, legal research and brief writing, travel time, and investigative and other

work. I do not see how disclosure of this basic information during trial could

intrude upon privacy or compromise defense strategies, investigative procedures,

attorney work product, the attorney-client relationship, or privileged information.

See United States v. Suarez, 880 F.2d 626, 631-32 (2d Cir. 1989). The categories

of work delineated on the CJA voucher form are commonplace to all criminal

defense work. To reveal that defense counsel had worked for a certain number of

hours interviewing witnesses, obtaining records, researching, writing briefs,

traveling, and investigating would only confirm what anyone familiar with

-2-
criminal defense work would expect.

Disclosure of the fees and the number of hours expended would not be so

shocking to the public that defense counsel would be castigated to such a degree

that the ability to defend their clients would be impaired. While disclosure of

fees during the proceedings might fuel controversy, this litigation shows that

keeping fee information sealed has in fact caused controversy. The public might

be outraged at the amount of fees paid for the legal defense of persons charged

with crimes, but might be equally outraged at being denied access to that

information. “People in an open society do not demand infallibility from their

institutions, but it is difficult for them to accept what they are prohibited from

observing.” Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 13 (1986).

Because there is no reason to deny access to this basic information, it is an abuse

of discretion to keep it under seal during trial.

Disclosure of unredacted CJA voucher forms for expert and other services

during trial could compromise defense strategies by revealing the types of experts

consulted and their names. However, the forms could easily be redacted by

deletion of the types and descriptions of services requested, the names of experts,

and any other identifying information. See Suarez, 880 F.2d at 631-32. There is

no reason to keep the amounts paid for expert and other services sealed during

trial.

-3-
 I would grant the Journal’s petition for writ of mandamus in part and vacate

that portion of the district court’s order keeping CJA voucher form cover sheets

sealed during trial.

-4-