*1
proceeding.8 Accordingly, the
quent
of
criminal
degree
“in
burden
that differences
attempted use of Mr. Gallardo-
application
government’s
of the doc-
may preclude
proof’
collaterally
plea
guilty
v.
earlier
judicata).
United States
Mendez’
of res
trine
Firearms,
contesting the issue of alien-
estop
465 U.S.
him from
One Assortment of
(1984),
proceeding
age
subsequent
criminal
was
appropriate the defendant had
proceeding concluded offense, underlying the Court
committed attempt estop
rejected the defendant’s relitigating wrongdoing, his
government from that the difference in
concluding is clear “[i]t proof in criminal burdens of relative application precludes the
and civil actions estoppel.” at of collateral Id. doctrine 361-62, Lot 1099. See also One S.Ct. America, Plaintiff, UNITED STATES States, Emerald Cut Stones 93 S.Ct. 34 L.Ed.2d U.S. curiam) (1972) (per (holding Jeopardy Double Cougar; aka Hector Cesar GONZALES a Clause did not bar forfeiture action subse- Lopez Shaggy; aka Uriel Mar Gabriel underlying quent acquittal on the offense Duke; tinez aka aka Pe Cesar Juarez proof in the burden of because differences Mono; lon; Azcuenaga aka Gustavo precluded application requirements of collat- Stranger; Luis Delcid aka Ernest Gue doctrine). estoppel eral Yogi; vara aka Russell Barboa aka Chi concerns successive While the case bar Lefty; Byron no; aka Za John Acosta proceedings, rather than a сriminal criminal Trigger; aka Villa aka mora Oscar case, a we are convinced the ease and civil Wino; Shorty; Rog Richard Acosta aka logic applies. conclude the Fed. R. same We Cartoon; er Preciado aka Jaime Villa requirement P. “factual basis” can- Crim 11 Mazzini, Psycho; aka Marcos aka satisfy process requirement not the due Stalker; Lucky; Najar Vincent aka Ja government prove the essential elements Bone; Tay son Delatorre aka J Charles charge “beyond a doubt” reasonable Yogie; aka lor aka Uriel Bustamonte successive, proceeding. a criminal unrelated Caps; M; Michael Mora aka M & David Thus, government’s guilty plea of. a use Cyclone; aka Neal Polus aka Gallardo estop collaterally a defendant from relit- Troy Thompson Evil; Lara, aka Frank
igating subsequent in a criminal an issue Spooky, Appellees, aka Defendants — proceeding contrary to the Due Process Clause. Intervenor, Albuquerque Journal, government
We now hold that judgment following plea a of National Association of Criminal Defense use Lawyers; guilty collaterally estop a criminal New Mexico Criminal Defense defen Lawyers Association, relitigating an issue in a subse- Amici Curiae. dant ways Although we we decide this case the Due do not list the in which the 9. Because Clause, government may prior enter a defendant’s con- Process we have no occasion to reach following plea guilty claim, viction into evidence in Mr. Gallardo-Mendez' Sixth Amendment emphasize subsequent proceeding, criminal claim, sufficiency gov- his of the evidencе or the nothing opinion change is intended to this challenge to his sentence. ernment’s present law of this circuit. *2 of Criminal Defense Plaintiff, America, National Association UNITED STATES Lawyers; Defense New Mexico Criminal Association, Lawyers Amici Curiae. Cougar; Cesar aka 97-2064, GONZALES Cesar and 97-2101. Nos. Azcuenaga Pelon; Gustavo aka Juarez Appeals, Court of United States Stranger; Mono; Delcid aka Luis aka Tenth Circuit. Yogi; Russell Bar aka Ernest Guevara Lefty; Chino; aka Acosta John aka boa July Trigger; Villa Oscar Byron aka Zamora Shorty; Wino; aka Richard Acosta aka Cartoon; Marcos
Roger aka Preciado Najar Lucky; aka Vincent aka
Mazzini Bone; aka
Stalker; J Delatorre Jason Yogie; Taylor Busta Uriel aka Charles Troy Caps; aka Neal Polus
monte aka Defendants-Appel Evil,
Thompson aka
lants, Intervenor, Journal,
Albuquerque Defense of Criminal
National Association Defense
Lawyers; New Mexico Criminal Association, Amici Curiae.
Lawyers Plaintiff, America,
UNITED STATES Cougar; Uriel aka GONZALES
Cesar Duke; aka Juarez aka Cesar
Martinez Mono; Azcuenaga
Pelon; aka Gustavo Stranger; Ernest Gue aka
Luis Delcid Yogi; Barboa aka Russell Chi aka
vara Lefty; Byron Za
no; aka Acosta John Trigger; aka Oscar Villa
mora aka Rog Shorty;
Wino; aka Acosta Richard Cartoon; Marcos Maz aka
er Preciado Najar Lucky; aka Vincent
zini aka Bone;
Stalker; aka J Delatorre Jason Yogie; Taylor Busta Uriel aka
Charles Caps; Mora aka M Michael
monte aka Cyclone; Neal M; Gallardo aka
& David Evil, De Troy Thompson aka
Polus aka
fendants, Shaggy; Lopez Jaime aka
Hector Gabriel Psycho; Lara Frank aka
Villa aka Defendants-Appellants.
Spooky, Intervenor, Journal, *4 Lawyers
and New Mexico Criminal Defense Association. ANDERSON, MeKAY,
Before BRISCOE, Judges. Circuit ANDERSON, H. STEPHEN Circuit Judge.
We must
determine
this case whether
constitutional,
press
law,
has a
common
statutory right
of access to court-sealed
fee, cost,
expense applications
and relat-
ed information filed under the Criminal Jus-
(“CJA”),
3006A,
tice
Act
court-appointed
attorneys,
criminal defense
transcripts
hearings
well as
concerning
court orders
applications.
those
access,
If there is a
then at what
*5
time and under what conditions.
Construing
Albuquer
Intervenor
que
appeal
Journal’s
and the Defendants’
cross-appeals
pétitions
as
for writs of mandam
(Charles
us,1
(1)
William Dixon
K.
S.
Purcell
we hold as follows:
there is no
briefs),
Diekason,
him on
Rodey,
Sloan,
First
right
Amendment
of access to docu
Robb, P.A.,
provided,
Akin
Albuquerque,
backup
&
ments
New Mexi-
as
detail for CJA
co,
vouchers,
for
Intervenor/Appellant
motions, ordеrs,
or
certain related
(2)
transcripts;
Journal.
and
there is no
of ac
cess to CJA vouchers or related information
Evans,
Evans,
Gail J.
Hannum &
Albu-
pursuant
because,
to the common law
if
even
querque,
Mexico,
Appellees
New
for
Cesar
relevant
previously
common law
existed on
Gonzales,
Juarez,
Cesar
Azeuenaga,
Gustavo
subject,
this
it
supplanted by
has been
Delcid;
Guevara;
Luis
Ernest
Russell Bar-
(3)
CJA;
press
and
statutory
has no
boa;
Acosta; Byron Zamora;
John
Oscar
right of access to the materials in question,
Villa;
Acosta;
Preciado;
Roger
Richard
but the court has discretion to release certain
Mazzini;
Najar;
Marcos
Vincent
Jason Dela-
subject
material
to the conditions outlined
torre;
Bustamonte;
Taylor;
Charles
Uriel
Applying
below.
these principles to this
and Neal Polus.
case, we
that
hold
the court acted within its
Robert, Barnett,
Marc H.
Allison & Rob-
in ordering
discretion
the release of the CJA
ert,
Mexico,
Albuquerque,
Appellees
New
for
(as
below)
vouchers
defined
at the end of all
Lopez,
Villa,
Hector Gabriel
Jaime
and
sentencing
Defendants’
hearings
or
Frank Lara.
dering the release of the total amounts ex
Farber,
Fe,
Mexico,
Steven G.
pended
Santa
New
in individual
at
cases
the end
each
Bergman,
and Barbara
Albuquerque, New
sentencing hearing;.
Defendant’s
but
Mexico, filed an amici curiae brief for Nation-
court abused its discretion in ordering the
al
Lawyers
Association of Criminal Defénse
unconditional
release
sealed
proper
Because
though
"mandamus is the
for
strong argument
vehicle
there
be a
in favor
reviewing
sealing
redacting
court orders
or
court
rеviewing
cross-appeals
appeals
as
from a
proceedings,”
documents in criminal
collateral order under Cohen v.
Indus.
Beneficial
McVeigh,
States v.
Cir.
Corp.,
Loan
337 U.S.
69 S.Ct.
93 L.Ed.
—
1997)
denied,
curiam),
-,
(per
cert.
U.S.
(1949),
we would reach the same result
(1998)
118 S.Ct.
district court’s Amendment, law or the the common First DISCUSSION vouchers, statute, all the CJA-related grant a determining motions, orders, whether documentation, mandamus, following imme- we consider released writ of transcripts should be hearing “ alternative, guidelines’ or, ‘nonconclusive diately, in the on the narrowly its restriction should tailor “(1) seeking the petitioner whether only certain docu- by sealing right to access means to se- adequate has no other writ in oth- by redacting information ments desired; relief cure the ers. (2) party will be petitioning whether Non-Co- Defendants and Cooperating way not cor- in a prejudiced damaged filed cross- have each operating Defendants appeal; on rectable order They that the court’s appeal.7 contend *8 Defendants’, (3) con- order trial, the district court’s whether right to a fair the violates discretion; of self-incrimination, abuse stitutes an attor- against protection Lara, issuе 1-2. distinct already et al. at The Chief for Defendants had some the 6. Because of that raise—and Cooperating Defendants the court’s the the time of district that sentenced at been order, agree of with—is Noncooperating the release court immediate Defendants the ordered the defendants, those to those the totals as docu- in the contained that information public. already Since been made amounts have safety individu- may jeopardize of the mentation then, many have been sen- defendants other government, cooperated with the als who have tenced, also made amounts been and those have Witness are now in the especially those who as to that Obviously, case is moot public. this this informa- Program. Disclosure of Protection particular information. only aided the those have hurt who tion will not case, also discour- but it will government in this in- Although Cooperating the Defendants have 7. informants, defendants, and witnesses age future situations, they specific peculiar their terests at 4- government. Id. with the cooperating from Non-Cooperat- arguments join made in 8. Br. in Answer Br. & ing Defendants’ briefs. (4) represents querque order argument, whether the court’s Journal’s address repeated an often error and manifests constitutional first. issue and, rules; persistent disregard of federal 1.
(5)
court’s
order rais-
whether
points
We make two initial
outset in
important problems
legal
es new and
or
place
order to
the Journal’s constitutional
impression.”
issues of first
arguments
perspective.
II,
McVeigh
(quoting
at 810
First,
(10th
Roberts,
to the extent the Journal
its
bases
88 F.3d
Cir.1996)).
arguments
public
on a claim
has a
right
public
being
tо know how
funds are
factors
The first and fifth
are satisfied
spent
eases,
logic
criminal
is
individual
its
applicable
here. The second factor
insofar
spoiled by the facts. The Journal
not
does
Albuquerque
it asks
as
whether the
Journal
seriously dispute
get
type
that it cannot
any wrong
could have
addressed in a direct
of
Department
data it seeks here from the
of
appeal. The third and fourth factors are
costs,8
prosecution
respect
Justice with
“inextricably linked” such that the case “real
(which
from Federal Public Defender Offices
ly boils
down to whether
district court
up
handle
of
indigent
to 75% the
defendant
sealing
abused its discretion in
redacting
caseload in districts where such offices are
sought by petitioners.
the documents here
located).9 Those two sources
expendi-
of
analysis
requires
That
whether
tures,
combined,
when
account for
the bulk
subject
documents are
[Albuquerque
public
spent
prosecutions
on
funds
criminal
Journal’s] First Amendment and common
involving indigent defendants—all unavail-
access,
rights
law
and whether the district
press
able to
type
sought
in the
of detail
clearly
legal duty
violated a
in its as
here.
rights
apply
sessment
how those
II,
McVeigh
documents.”
1255 determinations CJA that conclusion The the Adminis- through generated sel, all are supported is further documents not trial are Courts United States of Office trаtive fed nor prosecutors neither fact that Con- the Judicial authority granted submit required are defenders public eral pure- They are States. United of the ference expendi their of documentation court essentially to the And, the court ly administrative. v. United States cases. in criminal judicial, ca- tures administrative, not Cf. an acts in (8th 651, Cir. 656-57 McDougal, 103 F.3d requests voucher approving when pacity — U.S.-, denied, 118 S.Ct. 1996), See, cert. e.g., assistance. for trial motions related (1997). 15 49, 139 1482, L.Ed.2d United, Davis, 1498 F.2d 953 v. States Cir.1992) (“Fee (10th determinations n. 21 in essentially administrative at as Looked to the Criminal pursuant judge Amendment no First nature, that it is clear in character administrative Act are any Justice to CJA documents applies right of access orders appealable final not constitute and do docu administrative applies to than it more 1291.”). 28 meaning of within See branch. executive in the located ments Colon, F.2d Dia, 963 Inc. v. Hernandez El process is of the nature administrative The see, v. Cir.1992); e.g., (1st Calder 488, 494-95 forms. as its format well its apparent 781, Serv., F.2d 890 Revenue Internal is, the That is nonadversarial. process Cir.1989) Amendment (denying First appeal is no and there parte, ex acts court by that held records to IRS of right access compensa- reduction or denial from the Media, Inc. v. Ches Cities Capital agency); appeal later most, for a grounds At tion.10 Cir.1986) (3d 1164, 1175-76 ter, F.2d 797 for of funds by the denial might be created access to right of Amendment First (denying ser- or other witnesses, investigators, expert agency). of state records defense. adequate to an relating vices at most sense, perhaps, latter that 2. capacity quasi-judicial in a acting argu- purposes if we assume Even рrocess.11 CJA judicial docu- are materials that these ment informa- related vouchers Finally, the accept the if we and even ments accepted any not trial documents are tion Amendment a First that argument Journal’s togo not They do term. that sense materials, we apply to these should analysis a defen- punishment innocence guilt, . the Journal that conclusion reach the still crime. of the evidence They not are dant. it seeks. the relief not entitled ancillary the trial. entirely They are guarantees Amendment The First attend press and right of is filed that The fact pro preliminary certain trials criminal the situation. not alter does the court with Press-Enter cases. See ceedings criminal court are with a filed documents all Not Court, U.S. 478 Superior v. prise Co. See United “judicial documents.” considered (“Press- (1986) 1 2735, L.Ed.2d 92 158, 106 S.Ct. 161 F.3d 131 El-Sayegh, v. States Co. v. Newspaper II”); Globe Amadeo, Enterprise 44 (D.C.Cir.1997); United 603-06, 596, 102 Court, 457 U.S. Superior Cir.1995). (2d Pansy But see 141, 145 F.3d (1982); Richmond 248 L.Ed.2d 73 S.Ct. 782 Stroudsburg, Borough U.S. 448 Virginia, Inc. v. Newspapers, indicated, Cir.1994). And, as (3d (1980) L.Ed.2d 575-81, S.Ct. to the directly related are documents But, is not opinion). (plurality The documents adjudication. process Co., U.S. at Newspaper Globe indigent absolute. defendant’s related not even 2613. S.Ct. CJA aid. or she receives status, which he administering the 6-7; present ciary’s functions at Study Committee Courts Fed. See 10. to Review Committee generally CJA. Davis, n. 21. at 1498 Act, Conference Judicial Justice Criminal support for the is much there States, We note Report, WL Final independent ad- judges replacement 29, 1993). (Jan. *35-39, 108 nn.oo-ww judi- board, handle ministrative *10 1256 Supreme yet The Court has not II, ruled on Press-Enterprise 8, 478 at U.S. S.Ct. is a right
“whether there
constitutional
of 2735. The “complementary” test for “logic”
and,
so,
access to court
if
documents
public
asks
plays
“whether
access
a signifi
II,
scope
right.”
McVeigh
such
119 F.3d
positive
cant
role in
functioning
' However,
at 812.
rejected
this court has
particular process in question” by, for exam
“
argument
right
that such a
exists as to cer
ple,
‘enhancing] both the basic fairness of
tain court documents
providing
because
ac
the criminal trial and
appearance
of fair
cess to such information would stretch the
ness so
essential to
confidence in the
”13
principles
First Amendment
and the Su
system.’
8-9, 106
Id. at
(quot
S.Ct.
preme
analysis in Press-Enterprise
Court’s
ing Press-Enterprise
Superior Court,
Co. v.
their
beyond
II “well
current bounds.” Lan
819,
U.S.
104 S.Ct.
78 L.Ed.2d
Colorado,
phere
& Urbaniak
21 F.3d
(1984)
”)).
(“Press-Enterprise I
(10th Cir.1994); see, e.g.
II,
McVeigh
If,
tests,
applying these
qualified
First
(rejecting press’s
request
at
right
exist,
Amendment
is found to
suppressed evidence);
for access to
Lan-
may be
“by
overcome
an overriding interest
phere,
plication prevents
possibility
that an
(2)
open
Logic
hearing may
The
cause a
Test
defendant
reveal his or her defense.
above,
As indicated
logic
test
Guide,
Ill,
A,
(third
AO
chap.
part
§ 3.03
asks
public
whether
play
access would
sig
a
added).
emphases
fourth
positive
nificant
in
role
the functioning of the
Another section of
particular
process.18
Administrative Of
II,
Press-Enterprise
fice Guide instructs that
8, 106
information which
U.S. at
S.Ct. 2735. For the reasons
not
routinely
otherwise
pub
below,
available to the
set forth
public
we conclude that
ac
lic should be made available unless its release
cess to the
documentation,
motions,
Although
16.
preme
Criminal Justice Act of 1964 has
Court to determine that a constitutional
times,
been amended several
this section was
right of access to criminal trials exists. These
original
included in the
act. See Criminal Justice
interests are
by
to those
identical
identified
Act of
Pub.L.
legislative
88-455. The
No.
Third Circuit
by
as “societal interests” cited
history of the Act
pro-
indicates that this section
Supreme Court in
Newspapers
Richmond
parte
vided for
proceeding
an ex
"preventf]
are fostered
open
proceedings.
possibility
open
hearing may
cause a
Simone,
(3rd
States v.
14 F.3d
defendant to
H.R.Rep.
reveal his defense.”
No.
1994). They
Cir.
“informing
public
include:
(1963), reprinted
in 1964 U.S.C.C.A.N.
affairs,
government
discussion of
assuring the
2990, 2990.
public perception
fairness,
promoting the
communily-therapeutic
justice
effect of criminal
17. The Administrative Office Guide was amended
proceedings, providing
slightly
after the
check on
cor
was amended in 1996 rupt practices,
quoted
intimidating potential
1997.
perjurers,
sections are from the Guide as
appeared
generally
it
enhancing
performance
when the district court
was consider-
all
ing
I,
process.”
Journal’s motion to
involved in the
McVeigh
unseal
the CJAdocuments.
illustrative,
exclusive,
336. These factors are
not
and no one
predominates.
factor
controls
We
In United
McVeigh,
States v.
introduced
the
nega-
will also
degree,
openness
some
in that
leads
ato
process.
tive role in the criminal
citizenry
better-informed
and tends to deter
government officials
abusing
pow
addition,
process
part
is
CJA
of the
government.”
ers of
Times Mirror Co. v.
by
means
indigent
which an
defendant ob
States,
1210,
873 F.2d
1213
Cir.
discovery.
tains
required
The detail
of the
1989). Yet,
integrity
“because the
and inde
process
defendant in the CJA
includes the
pendence” of proceedings
grand
such as the
specific
expects
information he
to find. See
jury,
deliberations,
jury
and the internal
Mundt,
Kennedy,
1470;
1261 review 13-14. After Br. at Third tervenor’s itself the “Constitution commented in the materials contained many Act nor of the ing Information a Freedom neither case, disagree. 98 S.Ct. The hear Id. Act.” this Secrets record Official Press, Has Stewart, orders, motions, Or (quoting ing transcripts, (1975)); In re see also 631, 636 tings L.J. in replete with sensitive are documentation Co., 142 F.3d & Dow Jones Motions harm formation, which would release of (“The Judge can (D.C.Cir.1998) Chief above. The process as discussed the CJA jury-relat grand [to access allow some way only in the its interest not public has an because matters, bewill done it b]ut ed seeing judicial but also are used funds confer Procedure Rules of Criminal Federal that defendants efficient and are processes courts, not because authority on district this ” “ “ and ‘raw mate ‘basic tools’ given the it.”). demands First Amendment of an presentation to’” the integral rials Moreover, linchpin a fair trial. to ensure so as adequate defense First Amendment claim to Journal’s (quoting Ake v. 64 F.3d at Kennedy, been has discretion judicial is that of access 68, 76, 105 Oklahoma, S.Ct. U.S. contexts, have Yet, many courts applied. (1985)). L.Ed.2d access right of a constitutional rejected applied, been has judicial discretion where ma requested release of Requiring guilt or relating proceedings even in extensive —not entail an terials *15 though and even the defendant innocence and counsel of court expensive mention —use and been educated public would have careful to be more by forcing counsel effort been have would actions participant’s for to court presented the information in re- presentence include: These cheeked. by forcing the future disclosure fear a making in by the court on ports relied most of the that to ensure and counsel court Corbitt, decision, sentencing materials ultimate in CJA information (7th Cir.1989); pre- 224, 229-30 879 F.2d In re Search Warrant ly redacted. Cf. by used warrant affidavits search indictment Gunn, 855 Area Outside Secretarial Office of ap- warrant considering search in the court where the (holding that even at 574-75 F.2d Goetz, 886 Baltimore Sun Co. plications, applied, right of access Amendment First Cir.1989); (4th Times Mirror F.2d 64-65 sealed docu of the redaction line-by-line 1218; considered Co., documents at 873 F.2d not re practicable, thus not was ments mo- discovery ruling on eivil by the court Co., 467 U.S. Times also Seattle 11-12; see quired); Inc., F.2d at 805 tions, Cryovac, Inc., 2199; Cryovac, 23, 104 pro- n. S.Ct. ancillary at 36 proceedings and jury grand thereto, profile case high re in a Especially, In 12. related F.2d at documents ceedings Co., efficient,- effective, pro at 142 F.3d fair one, & Dow Jones Motions like this actually II, ruled 502-03; 498-99, McVeigh evidence employed. See be must cedures suppression by the por only inadmissible those Access at 813. 119 F.3d In II, 813.19 McVeigh hearings, contain the not that do the materials tions even case, process is not CJA instant Pyrrhic be a information implicated relating guilt to the process preliminary access, little benefit with victory for con- information defendant, nor does Inc., Cryovac, system. functioning of the relate documents in the CJA tained at 12. F.2d determination proceeding core —the logic lead nor sum, experience of the defendant. In neither innocence guilt or First Amend- is a that there to conclude us Journal argument, As alternative to CJA-related right of access ment hin- will be process that contends orders, hearing motions, documentation, any selectively redacts if the court dered transcripts. In- process. hurt the Cir.1988) First (holding qualified com not in are recognize that the courts We applies to search right of access proceed Amendment judicial harmony these plete on all of affidavits, weigh favor of interests but warrаnt See, Secretari e.g., Warrant In re Search ings. non-disclosure). Gunn, Area al Outside Office case, b. CJA Vouchers distinguishable. In that the district only court’s present order addressed access unnecessary to it address whether We find to interim vouchers. No order existed allow- right there is a constitutional to the vouchers ing trial, access to vouchers at the end of because the district court’s themselves order upon court was not called and did already requires release of the vouchers —a not address the interim voucher issue in such uphold grounds on other decision we dis- Thus, a context. the Second Circuit’s review As we at the cussed below. said outset of limited, way was and there is no to discern discussion, deciding this avoid we eases on opinion from the reasoning how much the grounds they constitutional if can be resolved itself, subject was driven of access already on another basis. Since the Journal much significance, any, how if the court it has the relief seeks as to disclosure in placed short, timing. on not know do. general, any opinion on constitutional how the Second Circuit would if have ruled merely advisory.20 grounds would be us, with faced a situation like that before already where the district court has This conclusion still ordered leaves unan release of the vouchers at the end of the arguments respect swered the Journal’s with proceedings. timing of the vouchers’ release. It is position the Journal’s that access to' the Likewise, we find Journal’s reliance at the enough— vouchers end of trial is not throughout its briefs on United States v. required. disagree. immediate access is We McVeigh, (W.D.Okla.1996), F.Supp. view, right In our there is no constitutional contrary position respect to its to tim- timing opposed this case access itself. ing. There the court never made clear Here, represented the Defendants qualified whether it found a First Amend- only attorneys, minority who handle ment or whether it based its decision caseload, the total criminal and of that minor law, on the common McVeigh, see ity, only minority attorneys of all CJA F.Supp. at but its conclusion was *16 basis, so, on an submit vouchers interim interim vouchers should not be released. Id. best, dealing we are with a fraction of a at 1465. Further, fraction of cases. we must observe If apply experience we were to required that while' vouchers are to be sub logic test to the issue of immediate access to mitted, they required are not to be submitted vouchers, it is clear for all the reasons Thus, on an interim basis. it is fortuitous more, opinion, stated earlier in this that here the have vouchers been submitted end, it would fail. In the agree with the basis, depends on an large interim to a McVeigh revealing court that the amounts of attorneys’ extent on strength. financial payments interim is not a reasonable alterna- Certainly, argue could not the.Journal tive to full disclosure because it would “dis- compel First Amendment would CJA public perception tort the about the fairness attorneys to submit on an vouchers interim process of the expenditures, because the out basis right because there is a constitutional context, of emphasize would costs without data, accruing to immediate access to any information about benefits obtained.” opposed to access itself. Id. at 1465. support To timing argument, its the Jour- B. Common Law Access and the CJA Suarez, nal relies on United States v. 880 Statutory Scheme (2d Cir.1989), F.2d 626 where the Second upheld grounds Circuit on First Amendment argues Journal a district court permitting press order that even if we do not find First Amend access to interim access, vouchers. We think right Suarez ment all of the CJA materials recently 20. The CJA has been amended so analysis as to and makes unnecessary. constitutional specifically address the point, issue of access to the More to the it takes the issue here out of specify timing vouchers and to "capable repetition yet that access. evading review" accompanying See note 21 and category. Any text. argument by There- future the Journal infra fore, any ruling import necessarily begin here would be of limited analysis will with an any case because this statute is now in effect amended statute.
1263 counsel, necessary “other services tion com to the pursuant still be unsealed should 18 U.S.C. representation.” adequate for statutory scheme. the CJA mon law and/or 3006A(e)(l). § argu law common reject the Journal’s We First, statute and for two reasons. ment in effect of the statute The version occupy this field below regulations discussed Con provides that the Judicial this case right law common supercede the “may, time ference of the United States v. United States See if one existed. even time, regulations govern issue rules and 123 Texas, S.Ct. 113 507 U.S. plans under operation of formulated ing the re Motions (1993); also In see 245 L.Ed.2d 3006A(h). § Ac this section.” Co., & Dow Jones Office, under the Administrative cordingly, (common of access (D.C.Cir.1998) right law Conference, has the Judicial the direction of supplant is jury-relаted grand the release of relating to rules promulgated 6(e)(6)); 6(e)(5), Lan by Fed.R.Crim.P. ed Guide, information. AO types of CJA all Colorado, 21 F.3d v. phere & Urbaniak 3.03; V, § A, 5.01. Ill, chap. part chap. Cir.1994) (common right of (10th law to be used the forms includes The AO Guide supplant is justice records to criminal access process, includ conjunction with the statute). Second, as we have by Colorado ed 20, 21, 30, above. discussed ing forms are not above, materials the CJA discussed appli the AO Guide apply the version of We used term is as that “judicial documents” below. in our case discussion cable to this law common applied the have courts that in- regulations, the the statute Under Rather, are adminis these access. right of pre- is counsel’s fees related to formation documents, States see United trative may public. It sumptively accessible to Davis, n. Cir. at the discretion be sealed of access 1992), there is no to which or on the upon motion of the defendant therefore ana law. We the common under Similarly, this informa- motion. court’s own should be the materials lyze to what extent re- be placed under seal tion that the CJA. released discretion, after at the court’s later leased be- discussed the interests consideration in 1964 “to was enacted The CJA pertaining contrary, information low. To those representation effective insure than other for services application or confronted charged with a crime After from the outset. counsel sealed rights of constitutional being deprived risk discretion, find- trial, after court has the ancillary proceedings.” *17 are interests that the same record ing on the Cir.1980) (cit (7th 739, Smith, 741 633 F.2d well. informatiоn as to release this protected, (1970), reprinted H.R.Rep. No. 91-1546 ing twice amended 3983); been 3982, Although the CJA has see also 1970 U.S.C.C.AN. was commenced 1154, present case Edwards, since United States provisions altered Cir.1974). have amendments (5th pur its both achieve To vouchers,21 the amend- to CJA representa- for access for provides both pose, the CJA amendment, the CJA 1998, to the most recent Prior Judiciary Appropriations Act of 21. The Effective by 105-119, 308, Antiterrorism pursuant was amended applies, § No. Pub.L. 104-132, 1996, Penalty Pub.L. No. Act of January Act, Death after filed on or to cases U.S.C. amended §§ which also compensa- provides that This amendment 1998. representa- penalty death pertaining § 848(q) to the be disclosed paid should to counsel tion' commencing tion, on or applies to cases Any by detailed upon approval the court. public provides amendment April 1996. This after prior to the on vouchers submitted information by representation paid” redacted, case, for amounts any that ”[t]he and in trial to be end of is be made "shall services for other counsel and Amendment Fifth and Sixth must consider U.S.C. public.” available attorney-client privilege, work rights, added). (emphasis The sub- 3006A(d)(4),(e)(4) § any any person, and safety privilege, product replaced above sequent discussed deciding amendment may require justice interest other only. language toas counsel this The to release. portions the vouchers what applicable to CJA of the Although the version compensation provides also amendment amend- either of these not include essentially does this case ments, categorized paid be should counsеl they in that indicate they instructive are currently 20. See form on CJA form is as it the amounts access to 3006A(d)(4). increased hereto; shift § toward 18 U.S.C. attached essentially codify regulations. § merits to reveal his or her Id. defense.” 3.03. However, specifically pro- one amendment procedures provided Similar in death expended vides that amounts under the CJA penalty cases version of the statute n public,” “shall be made available to the 18 applicable to this case. See U.S.C. 3006A(e)(4), § apparently which takes § 848(q)(9). away from the district court as the discretion legislative history of the act indicates penalty totals. to the release of the death secrecy that the for in obtaining need ser cases, the are to be made available amounts vices other than prevent counsel is to “the disposition “after the to the possibility open hearing may an cause a § petition.” 848(q)(10)(C). 21 U.S.C. In ad- defendant to H.R.Rep. reveal his defense.” amendments, dition, applicable one (1963), reprinted No. 88-864 in 1964 cases, only penalty changes to death 2990, 2990; U.S.C.C.A.N. see also Marshall presumption parte hearing from an ex for States, v. United process services other than counsel to a. Cir.1970). Because Defendants are parte not to ex is be held “unless a which “act[ing] jointly, sharing responsibility for proper showing concerning is made the need investigation attending joint motions and § confidentiality.” 848(q)(9). 21 U.S.C. strategy duplicative sessions ... to avoid interpretation Our of the statute in effect for expenses,” efforts and to minimize amendments, case is this consistent with the Gonzales, CR-95-538-MV, No. except as those amendments alter aсcess to (D.N.M. Feb.11, 1997), WL at *12 penalty CJA information in death cases. any the release of prior CJA documents sentencing preju last Defendant’s Motions, Orders, Hearing 1. Tran- by causing dice that Defendant him “to re scripts Related to the Retention and veal his H.R.Rep. defense.” No. 88-864 Compensation of Services Other (1963), reprinted in 1964 U.S.C.C.A.N. Than Counsel Thus, reject Services other than counsel that are argument Journal’s that materials related to necessary adequate representation may services other than counsel should be re by be obtained financially defendant who is prior leased to the end all Defendants’ them, upon parte unable to obtain an ex , sentencing hearings. application, heard the court in camera. court, however, The district 3006A(e); Guide, because it chap. See 18 U.S.C. AO Ill, access, found a First A, Amendment part application, § 3.03. The documents, ordered that all CJA-related mo- usually voucher but is parte ex tions, orders, hearing transcripts motion parte hearing, followed an ex be re- “shall not leased after remaining be revealed without the the last Defendant consent of application the defendant. The sentenced. Pursuant statutory shall be placed scheme, disposition regulatory until under seal the final we conclude that this court, subject the case the trial is presumptively to further closed. The *18 Maintaining order of the court. secrecy continuing scheme favors confidentiality of application prevents information, of the possibility given the interests iden- open hearing may that an cause a tifíéd in the logic prong defendant discussion of the of However, paid they equal- public out under the CJA. alleged to disclosure the criminal’s sixth ly they informative that in do not indicate a rights might compromised. amendment My be legislative desire to release the other CJA infor- bill does not seek to make this sensitive informa- seeking mation which the Journal'is disclosure, subject tion to but rather con- legislative history here. The of the amendments Judge tinues to leave it to the to determine if and change indicates that the was intended to reach when Cong. it should be released.” 143 Rec. vouchers, the amounts listed on the CJA but not 24, 1997) (statement (daily July S8069-70 ed. backup documentation or other CJA-related Domenici). recognize Sen. we While that state- Domenici, documents. Senator who introduced binding, ments like this are not conclusive or we recent, amendment, language in the most independent find it informative that our review backup great discussed the documents and the of the amendment is consistent with the drafter’s they amount of detail that contain. He then view. stated, "clearly subject if this information were
1265 motions, orders, above, 31, hearing analysis we conclude the constitutional transcripts appointment its related to the court abused discretion that the district motions, orders, counsel, play significant positive and hear- ordering that the functioning process. other than role on of the transcripts related to services ing above, In to addition those factors discussed counsel be released. we conclude that the other factors also favor materials, Appoint- sealing Related to the continued of these CJA 2. Materials Compensation completed. sentencing of Cоunsel even after is ment and Backup and the Documentation The district court considered several of Than Vouchers for Other Services factors, these other but did so the context Counsel Press-Enterprise analysis “higher of its II First, found, values.” the district court provides appointment The CJA that agree, allowing disclosure of the determining is to be achieved after of counsel backup attorneys’ to the re documentation financially unable the defendant quests compensation “subject for inno plan implement pursuant counsel to a obtain people have been interviewed or cent who district court. See 18 U.S.C. ed each investigated by public specula Defendants to 3006A(b). apply procedures § Similar tion about their involvement in the crime.” 3005; § penalty cases. See 18 U.S.C. death Gonzales, (10). 1997 at *8. This inter WL 848(q)(4)-(8), 21 Neither justification keeping to one est similar nor the Administrative Office’s rules statute grand jury proceedings secret even after tri specify procedure whether this is to be done Douglas al is Oil Co. v. Petrol over. See parte. ex Northwest, Stops 99 U.S. S.Ct. changes 5.01 of the AO Guide Section (1979); see also 60 L.Ed.2d secrecy in non- presumption from one of Corbitt, v. 879 F.2d 231 & nn. 8-9 compensation one attorney retention and (7th Cir.1989); Times Mirror Co. United information not otherwise openness (9th Cir.1989). States, 1210, 1216 873 F.2d routinely public, to the while still available giving place addition, CJA- the court discretion In several witnesses are “until after all related materials under seal Program, and infor the Witness Protection judicial proceedings22 mation, in the case are com- places such as the to which defense pleted traveled, and fоr such time thereafter as counsel have which could reveal appropriate.” This court deems section should not be their location disclosed. applies backup the AO Guide also Hickey, United States vouchers for services Cir.1985); documentation to the Newspaper Co. v. Globe cf. Court, 596, 607-08, Information should be other than counsel.23 Superior U.S. unduly (1982). might ... released unless “its release Non- S.Ct. 73 L.Ed.2d upon privacy attorneys or intrude privacy interest re witnesses also have compromise defense strate- safety defendants or anonymity for reasons. taining similar investigative procedures, attorney therefore, work gies, disagree, with the district We relationship product, attorney-client apparent conclusion that a non-defen court’s provided by privileged information the defen- only until the privacy dant’s interest is valid Gonzales, sources.” Id. dant or other litigation.” “conclusion WL at *8. logic prong of the of the our discussion above, Second, documenta- Press-Enterprise analysis II we con- release tion, motions, orders, factors, hearing transcripts concluding several of these sidered *19 materials, compensation including appointment to the and that access to CJA back- related backup documentation of counsel and of the up documentation to CJA forms Guide, changes § the 23. We do not believe that 5.01 22. The current version of the AO which is sealing case, presumption related in favor of materials applicable clarifies that "all to this obtaining parte process for services to the ex appeals. judicial proceedings” includes statute, provided the other than counsel as in Guide, 3006A(e) § § AO 3.03. and the beyond for services other than counsel tends the death of the client. to vouchers — privacy States, on the interests of the will Swidler & Berlin v. United U.S. intrude privileged —, will reveal infor- 2081, 2084-88, Defendants and 118 S.Ct. L.Ed.2d provided by (1998). the Defendants. As dis- mation then, Certainly, privilege above, disclosure of this CJA informa- cussed does not terminate when the Defendants’ implicate Fifth may tion the Defendants’ trials are over. rights to Amendment the instant crime. Accordingly, we conclude that the district put government position It also “in a court in ordering abused its discretion charges against investigate bring new documentation, motions, backup orders inculpate in un- [defendants who themselves hearing transcripts ap- related to the charged criminal conduct order to obtain pointment compensation of counsel and Supplemental adequate R. defense].” backup documentation to vouchers for (district I, 2073 at 5 n. 1 court order Vol. Tab services other than counsel un- should be granting part stay defendants’ motion to sealed after the of all conclusion Defendants’ privacy pending appeal). These interests sentencing hearings. also do not cease at the conclusion of the litigation. Expenditures 3. Vouchers and Total Third, unsealing backup documenta- Finally, we address the district tion, motions, transcripts hearing orders and attorney court’s order that the total fees and appointment compensation related .to paid through overall total CJA funds be re backup of counsel and the documentation leased for each Defendant after that Defen vouchers fоr services other than counsel dant is sentenced and that all of the vouchers protected by would reveal information (without backup themselves documenta attqrney-client privilege attorney tion) be released at the end of all Defendants’ work-product In doctrine. addition sentencing hearings. The district court attorney being provide reluctant the court (forms 20, found that because the vouchers necessary with information to obtain services 31) 21, 30, and themselves contain trial strat above,24 for the defense as discussed Gonzales, *7, egy, 1997 WL at re specter of the release of detailed prior lease of the entire vouchers to the attorney’s documentation to the vouchers and conclusion of all Defendants’ trials would which, non-attorney’s vouchers, yet harm Defendants not tried. The court found, “often contain information di- proper considered the interests involved and rectly indirectly implicating attorney- or ly applied its discretion to release the total privilege,” client would make a defendant spent amount on counsel and the total “reluctant to reveal information that could spent amount overall on each help case, Defendant at attorney in the defense of the the end of that sentencing Defendant’s hear analyzing strength of the case for Gonzales, ing and to save the release of *8; trial.”25 the vouchers 1997 WL Dobbins, themselves until all Crystal Corp. sentencing see Defendants’ Grower’s (10th Cir.1980). hearings completed. impor- We find no abuse in privilege tance of this court’s conclusion that and doctrine is well- forms 21 and established, Upjohn States, relаting compensation experts, see Co. United in 383, 389-92, others, vestigators, 449 U.S. 101 S.Ct. contain trial strate (1981), gy. point Although L.Ed.2d 584 which the we question Su- how much trial preme just recently reemphasized strategy Court is revealed on forms 20 and 30 holding attorney-client privilege counsel, that the regarding compensation ex- we can point potential 24. We also out disclosure of yet choice to be made counsel is another pending the information while the trial is still disadvantage indigent defendants face. encourage defense wait counsel to until n thetrial is over before submitting vouchers for product privileged Disclosure of work compensation. complicated cases such as give government information would also in- penalty prosecutions, urged death where "[i]t is particular formation as to the methods defense permit payment that the court interim of com- combating prosecutions. counsel use in Guide, VI, 6.02(C), pensation,” chap. AO such *20 balanced, agree with lead us the court its discretion abused the court say end of all narrowly until the tailored conclusion them court’s waiting to release district them the forms hearings since sentencing until should remain sealed that the vouchers specify cer attorneys to require the selves sentenced, except for are the all Defendants strateg information, reveal which could tain attorney the paid to the and amount total' y.26 overall, will be spent which total amount Defen- conclusion of each at the released vouchers- that the court’s order district sentencing hearing. dant’s also consis- ultimately released is be should the recent amendments the two tent with ex- CJA, that the amounts require which III. services counsel and other
pended for supra note 21. disclosed. See the CJA be CONCLUSION provides that recent amendment The most is to be divided paid to counsel the amount of mandamus on a writ the We GRANT match roughly categories, which into twelve DENY a writ of manda- cross-appeals and forms 20 on CJA categories presently the por- appeal. VACATE mus on the We court’s pursuant to the be released and order which re- of the district court’s tion Therefore, the vouchers all of order. motions, documentation, backup leases disclosed, backup properly be without orders, transcripts. por- That hearing documentation, of the last Defen- the end in accordance with sentencing hearing, order which re- dant’s court’s tion of the district the district And as court’s order. 20, 21, 30, and without CJA forms leases clear, has not fore- its order has made court documentation, at the accompanying protec- seeking a the Defendants closed sentencing of the last Defendant’s conclusion informa- regards to sensitive tive order keeping favor hearing, unless interests on the vouchers may be contained tion that appeals, any direct until after fprms sealed I, R. Tab Supplemental Vol. See themselves. addition, por- remain in force. shall (district granting in order 6 n. 2 2073 at releasing, order of the district court’s tion ap- stay pending motion to part defendants’ Defendant’s sen- completion of upon each peal). paid to that Defen- tencing, total amount that a if to assume Finally, spent even we were amount attorney and the total dant’s applied to First Amendment qualified remain in that Defendant shall overall for held as the Second Circuit the vouchers force. Suarez, the interests 880 F.2d at DENIED. outstanding are All motions identified, that the district already have disclosure or associated with costs benefits disagreement us and the between is no There 26. partic- us is before deferred disclosure. The.case opinion proposition that dissenting on the there ularly of the number of de- respect illustrative because openness with presumption of is a fendants, testifying against sheets, are the fact that some See counsel fees. at least as to cover others, ordered court has long fact that the presumption has supra pp. 1265-66. This oth- to share defendants certain been codified in the Guidelines has been and, another, general, one January work with erwise to the CJA effective amendments proceedings. extraordinary these This size of presumption supra note 21. But example appellate perfect presents analysis. case only beginning Both is respect responsibility its standard of court's contain the amended statute Guidelines and cited discretionary judgment involving in cases review laundry can override list of items which Obviously, we if were district presumption calls court. Overarching presumption. review, we exercising standard of a de novo proposition that the deter- is the conditions these than did the might conclusion immediately come to different or to whether to disclose mination necessarily defer- disclosure, judge. our is trial But review unre- redacted or whether in defer ential, second-guess be slow to form, we should for the trial а matter of dacted discretion this, judge’s prerogative in a matter this the trial judge. There are sound reasons where, point we be- complex. It is this latter apparent The trial especially case. this lieve, the mark. the dissent misses position at first hand judge in a to evaluate *21 ATTACHMENT
ATTACHMENT
parties
any
BRISCOE,
Judge, concurring
Interested
should be notified of
Circuit
modification of such
order.
dissenting:
5.01,
pre-
information is
Under
no First Amendment
agree
I
there is
sumptively available unless the court con-
they are
because
access to CJA documents
to avoid
cludes it should be sealed
undue
nature,1
any com-
and that
administrative
attorneys
upon
privacy
intrusion
preempted by
right of access was
mon law
*23
defendants,
strategies,
compromise defense
agree
I
that under the CJA
CJA.
also
investigative procedures,
attorney work
it, the district
promulgated
rules
and
attorney-client relationship,
product, the
or
not have ordered that the back-
court should
voucher
privileged information. CJA
forms
documentation, motions, orders, and hear-
up
attorney
specify
services
the hours
the conclusion
ing transcripts be unsealed at
categories of
generic
claimed for
services:
sentencing hearings.2
all defendants’
conferences, obtaining
interviews and
and re-
However,
agree
I
do
records,
viewing
legal research and brief
properly keep the CJA forms and
court could
time,
writing,
investigative
travel
paid
amounts
for counsel and other ser-
other work.
I do not see how disclosure of
the conclusion of each de-
vices sealed until
during trial
in-
this basic information
could
trial,
fendant’s
upon privacy
comрromise
trude
or
defense
investigative procedures, attorney
strategies,
§
guide
of 5.01 of the
to Judi-
The version
product,
attorney-client
work
relation-
ciary Policies and Practices
effect when
ship,
privileged
or
information. See United
governs
commenced
“Procedures
this ease
(2d
Suarez,
Pertaining to
for the Release of Information
Cir.1989).
categories
The
delineated
work
Activities,”
pro-
Act
Criminal Justice
commonplace
on the
voucher form are
CJA
vides:
to all criminal defense work. To reveal that
Generally,
which is
such information
counsel had worked for a certain
defense
routinely
not otherwise
available to the
witnesses,
interviewing
number of hours
ob-
public
it
should be made available unless
records,
briefs,
taining
researching, writing
pursuant
is
to an executive order
classified
only
traveling,
investigating
con-
might adversely
or. its release
affect
anyone
firm what
familiar with criminal de-
policy
foreign
national defense or
interest
expect.
fense work would
States, unduly
upon
of the
intrude
United
Disclosure of the fees and the number of
privacy
attorneys
or
or
defendants
expended
shocking
hours
would not be so
compromise
strategies,
investiga-
defense
public
that defense counsel would be
procedures, attorney
product,
tive
work
"castigated
degree
ability
to such a
that the
attorney-client
relationship
privileged
or
impaired.
defend their clients would be
provided by
or
defendant
during
proceed-
disclosure of fees
While
(see
552(b)).
other sources
5 U.S.C.
ings might
controversy,
litigation
fuel
this
Upon request,
upon
keeping
or
the court’s own shows that
fee information sеaled
motion,
pertaining
controversy.
has in fact
documents
Criminal
caused
might
outraged
paid
Act
at
Justice
activities maintained
be
the amount
fees
files,
open
generally
legal
persons charged
clerk’s
are
for the
defense of
crimes,
public, may
judicially
might
equally outraged
available to the
be
but
be
placed
safeguard-
being
to that
information.
under seal
otherwise
denied access
judicial proceedings
“People
open society
ed until after all
in the
do not demand
institutions,
completed
infallibility
case are
for such time
from their
but it is
accept
they
appropriate.
thereafter as the court deems
difficult for them to
what
However,
question
question
they
majority's
2.
I
I
alternative
whether
must remain sealed in
that,
judi-
conclusion
cial rather
even if CJA documents are
perpetuity.
appellate
point,
At some
after
nature,
there
than administrative
over,
post-conviction review is
the interests
would be
of access to
no First Amendment
by keeping
served
the materials sealed
no
Suarez,
them. See
States v.
there of discretion
information, an abuse it during trial. seal
keep it under voucher of unredacted
Disclosure during services and other expert
forms strategies compromise defense could trial consulted experts types of
revealing the However, could easi forms names.
their types and by deletion
ly redacted be names requested, services
descriptions *24 infor identifying any other experts, and Suarez, at 631-32.
mation. paid amounts keep nois reason There during sealed other services expert and
trial. petition the Journal’s grant
I would part and vacate mandamus
writ keeping order court’s of the district portion during sealed cover sheets form voucher
trial. Jr.; Douglas BYERS, P.
Joseph R. Frampton,
Bency; R. Daniel
Plaintiffs-Appellants, Municipal ALBUQUERQUE, a OF
CITY Stover, Chief Corporation; V. Bob Campbell, Deputy Chief
Police; Richard Martinez, Human Police; Deborah Joseph M. Department; Resources Defendants-Ap Police, Polisar, Chief
pellees.
No. 96-2255. Appeals, Court
Tenth Circuit.
July