CALEB DANIEL HUGHES, APPLICANT V. THE WASHINGTON POST COMPANY

   No. A-516

   In The Supreme Court Of The United States

   October Term, 1990

   On Application To Stay The Order Of The United States District
Court For The Eastern District Of Virginia Unsealing Portion Of
Affidavit For Search Warrant Pending Consideration Of A Petition For A
Writ Of Certiorari

   Memorandum For The United States As Amicus Curiae In Opposition

   1. Applicant has been charged by the state grand jury sitting in
Fairfax County, Virginia, with abducting a five-year old girl with
intent to defile her, in violation of Va. Code Ann. Section 18.2-49.
Applicant's trial before the Fairfax County Circuit Court is scheduled
to begin later this month.  On respondent's motion before the United
States District Court for the Eastern District of Virginia, the
district court, over applicant's opposition, granted respondent's
request to unseal -- in its entirety -- the affidavit supporting the
federal warrant executed to search applicant's car in December 1989.
Appl. Exh. 2, at 1-2.  On appeal, applicant challenged only that
aspect of the district court's order unsealing one paragraph of the
affidavit.  A divided panel of the court of appeals affirmed.  Appl.
Exh. 5, at 1-24.  /1/

   a. In early December 1989, a five-year old girl disappeared in
Fairfax County, Virginia.  The Federal Bureau of Investigation soon
joined the investigation launched by the Fairfax County police
department.  On December 15, the FBI, with the authorization of the
United States Attorney for the Eastern District of Virginia, applied
to a United States magistrate in that District for a warrant to search
applicant's car.  That application, filed under seal, was supported by
the affidavit of FBI Special Agent Dorsey summarizing the evidence
gathered to date implicating applicant in the girl's disappearance.
Magistrate Grimsley issued the search warrant on December 15, and
placed the application and supporting affidavit under seal.  Appl.
Exh. 5, at 3-4;  Appl. 4.

   On December 20, 1989, respondent filed a motion with Magistrate
Grimsley to unseal the search warrant application and supporting
affidavit.  The United States opposed that motion on the ground that
unsealing the documents would compromise the ongoing investigation.
Magistrate Grimsley denied respondent's motion, and respondent sought
no further review of that order.  Appl. Exh. 3, at 1;  Appl. Exh. 5,
at 3-4;  Appl. 4;  Resp. C.A. Br. 1-2.

   Eleven months later, on November 19, 1990, applicant was charged by
the Commonwealth of Virginia with abducting the girl with intent to
defile her.  Applicant was arraigned on November 26;  his trial before
the Fairfax County Circuit Court is scheduled for late January 1991.
Appl. Exh. 5, at 4;  Appl. C.A. Br. 1-2.

   b. On November 27, 1990, respondent filed a second motion with
Magistrate Grimsley to unseal the federal search warrant application
and supporting affidavit of FBI Special Agent Dorsey.  Respondent
grounded its motion on the "common law right of access to search
warrants and supporting affidavits." Resp. C.A. Br. Attach. 1, at 2
(citing Baltimore Sun Co. v. Goetz, 886 F.2d 60 (4th Cir. 1989)).  /2/
Applicant opposed respondent's motion, contending that "release of any
of the information in the (affidavit) would prejudice him and
compromise his Sixth Amendment right to a fair trial." Appl. Exh. 5,
at 4.  /3/

   The Commonwealth of Virginia submitted the affidavit of Robert F.
Horan, Jr., the Commonwealth's Attorney for Fairfax County -- the
prosecutor handling applicant's case.  /4/ In that affidavit, the
Commonwealth's Attorney stated that

         (s)ince (applicant's) indictment in this matter many facts
      that were referenced in the affidavit have been revealed to the
      public through various media sources, (and he therefore) no
      longer believe(s) that the entire affidavit need be kept
      "sealed" at this point in time.

Appl. Exh. 7, at 2.  Nonetheless, the prosecutor stated that

      page 5 of the affidavit contains a paragraph (second full
      paragraph on page 5) which contains information which is of a
      sensitive nature.  It is (his) opinion, based on over twenty
      years of experience as Commonwealth's Attorney of Fairfax
      County, that the revelation of this information which has not
      yet been revealed would have an extreme adverse impact on (his)
      ability to pick a fair and objective jury and to assure
      (applicant) of a fair trial.

Ibid.  Accordingly, the Commonwealth's Attorney joined applicant's
opposition to the extent it sought to keep that portion of the
affidavit sealed.  The United States, based on the representations of
the Commonwealth's Attorney, agreed that the search warrant
application and affidavit should be unsealed, with the exception of
that one paragraph.  U.S.C.A. Br. 6-7.  /5/

   c. After a hearing, Magistrate Grimsley denied respondent's motion
on November 27.  Appl. Exh. 1, at 1.  He stated that "the common law
right of the press and the media is subservient to the higher interest
that the defendant is assured the right of a fair and impartial
trial." Ibid.  He then concluded that

      the United States (sic:  applicant) has met its burden of
      establishing a higher value on the premature release of any
      supporting data in support of a search warrant that would tend
      to prejudice the right of the accused (applicant) to a fair and
      impartial trial.

Ibid.

   In view of the uncertainty of the magistrate's order regarding use
of the redacted affidavit prematurely disclosed to respondent, see
note 5, supra, the parties immediately appeared before United States
District Judge Bryan.

   d. After a hearing, the district court reversed the magistrate's
ruling and ordered the affidavit unsealed in its entirety.  Appl. Exh.
2, at 1-2.  /6/ The court stated that "release in its entirety of the
affidavit * * * will not generate publicity which will jeopardize
(applicant's) right to a fair trial," because "(w)ith the exception of
the (paragraph at issue), the information contained in the affidavit
is essentially already in the public domain." Ibid.  Moreover, the
court determined that "(t)he public's right of access to the affidavit
outweighs the danger publicity presents, a danger that can be overcome
by a careful voir dire of the prospective trial jurors or by a change
of venue, or both." Ibid.  The court therefore held that "these
measures can ensure an impartial jury for the trial of (applicant),
untainted by any publicity flowing from the unsealing of the
affidavit." Ibid.  /7/

   The court stayed for 24 hours that portion of its order unsealing
the one paragraph of the affidavit at issue, pending applicant's
seeking relief before the court of appeals.  /8/ The court otherwise
ordered that the "remaining of the affidavit, redacted to remove the
above paragraph, shall be unsealed immediately." Appl. Exh. 2, at 2.

   e. Applicant noted an appeal to the Fourth Circuit on November 28
and sought a further stay pending disposition of that appeal.  That
day, Circuit Judge Widener granted applicant's request for a stay
pending appeal, directed expediting briefing, and set the case for
argument on December 4, 1990.  Appl. Exh. 3, at 1-3.

   f. On January 2, 1991, a divided court of appeals affirmed.  Appl.
Exh. 5, at 1-24.  /9/ As a threshold matter, the court determined that
since the "common law qualified right of access to the warrant papers
is committed to the sound discretion of the judicial officer who
issues the warrant," id. at 5 (quoting Baltimore Sun Co. v. Goetz, 886
F.2d at 65), it would review the "district court's decision whether to
grant access or to seal the document under an abuse of discretion
standard," Appl. Exh. 5, at 5-6.  /10/ As the court explained, here
the "district court balanced the public's right of access with the
defendant's assertions that release would compromise his Sixth
Amendment right to a fair trial." Id. at 7-8.  "The rationale for
investing this particular balancing process at the trial court level"
lies in the fact that "(e)ach specific situation is different and
discretion is best exercised 'in light of the relevant facts and
circumstances of the particular case.'" Id. at 8 (quoting Nixon v.
Warner Communications, Inc., 435 U.S. 589, 599 (1978)).  /11/
Moreover, the court pointed out that "(t)rial judges are * * * best
situated to understand the subtle factors unique to a given geographic
area or population that may either attentuate or enhance the effect of
any particular disclosure upon a defendant's rights." Appl. Exh. 5, at
8-9.  /12/

   On the record presented, the court of appeals concluded that "the
lower court (had not) abused its discretion in deciding to release the
complete affidavit." Appl. Exh. 5, at 11.  The court stated that
"(t)he balance struck between the public's right of access via the
press and the defendant's right to a fair trial must be carefully
struck in each case * * *." Ibid.  Nonetheless, the court noted that
the "common law presumption is in favor of access," and that
"'pretrial publicity, even if pervasive and concentrated, cannot be
regarded as leading automatically and in every kind of criminal case
to an unfair trial,'" id. at 11-12 (quoting Nebraska Press Ass'n v.
Stuart, 427 U.S. 539, 565 (1976)).  As the court explained, "(t)he
reason that fair trials can coexist with media coverage is because
there are ways to minimize prejudice to defendants without withholding
information from public view." Appl. Exh. 5, at 12.

   In this case, the court of appeals determined that "voir dire will
protect (applicant's) right to an impartial jury." Appl. Exh. 5, at
12.  First, "there is somewhat of a tendency to frequently
overestimate the extent of the public's awareness of news." Id. at 12
(citations omitted).  Second, "even potential jurors aware of the
coverage of the girl's disappearance are not disqualified from sitting
so long as they can set aside their impressions and adjudge the case
on the basis of the evidence presented at trial." Id. at 13 (citing
Irwin v. Dowd, 366 U.S. 717, 722-723 (1961)).  The court rejected
applicant's assertion that potential jurors "might not be candid
during voir dire in a case that was 'under the glare of media
attention and focus.'" Appl. Exh. 5, at 13.  As the court explained:

      It is quite simple to have those potential jurors who have heard
      of the case approach the bench and answer more specific
      questions in private.  Such a course may occasion some
      inconvenience, but inconvenience is a small price to pay for a
      system of criminal justice which is at once open to the public
      and fair to the accused.

Ibid.  In sum, the court of appeals "agree(d) with the district court
that a properly conducted voir dire should guarantee a fair trial for
(applicant)." Id. at 15.  /13/

   Finally, the court of appeals turned to the "public's right of
access" to the information at issue.  Appl. Exh. 5, at 15.  The court
determined that the "public has many significant interests in that
material." Id. at 16.  The court observed that

      (v)iolent crime has a profound impact upon societal well-being
      and often provokes public reactions of fear and outrage, as well
      as compassion for its victims.  "When the public is aware that
      the law is being enforced and the criminal justice system is
      functioning, an outlet is provided for these understandable
      reactions and emotions."

Id. at 16 (quoting Press-Enterprise Co. v. Superior Court, 464 U.S.
501, 509 (1984)).  In addition, "(s)ociety has an understandable
interest not only in the administration of criminal trials, but also
in law enforcement systems and how well they work." Appl. Exh. 5, at
16.

   The court rejected the argument that "these concerns will be met by
releasing the information after (applicant's) trial has concluded,
when all danger of prejudice will be past." Appl. Exh. 5, at 16.
"Openness is a value in itself that the trial judge must consider even
when the participants in the trial may wish otherwise." Id. at 17.
The court cautioned that "(t)his is by no means to assert that every
sentence of every affidavit in support of a search warrant must always
be released, no matter what the circumstances." Ibid.  /14/ Rather,
the court stated, since "the ready resort to suppression is for
societies other than our own(,) * * * an accommodation of competing
values remains the commendable course." Ibid.

   Judge Widener dissented.  Appl. Exh. 5, at 16-24.  He concluded
that the majority had erred in not reviewing the magistrate's decision
under the deferential abuse of discretion standard, and that "the
evidence in the omitted paragraph is so palpably inadmissible and
prejudicial that it is beyond argument that the magistrate's decision
to refuse to lift the seal from the one paragraph of the affidavit
should not be disturbed." Id. at 17.

   g. The court of appeals stayed its mandate until 5 p.m., January 4,
to permit applicant to seek review before this Court.  Appl. Exh. 4,
at 1.  On January 3, the court of appeals, over Judge Widener's
dissent, denied applicant's motion for an extension of the stay
pending the filing and disposition of a petition for a writ of
certiorari.  Appl. Exh. 6, at 1.  On January 4, applicant then filed
this application for a stay.  On that day, the Chief Justice
temporarily stayed the mandate of the court of appeals pending receipt
of responses to the application on January 7 and further order by him
or the Court.

   2. The application for a stay should be denied.  This case does not
present any issue regarding the propriety of placing documents under
seal.  See, e.g., In re Knight Publishing Co., 743 F.2d 231, 235 (4th
Cir. 1984).  This case also does not present an issue regarding
whether the First Amendment provides the public with a right of access
to judicial records.  /15/ Nor does the case present the issue
regarding whether the public enjoys a comparable common law right of
access, because applicant concedes that there is such a right.  See,
e.g., Appl. 13 ("the common law right of access by the media and
dissemination to the public is qualified");  accord Va. C.A. Br. 7;
cf. Nixon v. Warner Communications, Inc., 435 U.S. 589, 597-599
(1978).  /16/ Moreover, this case does not present a broad issue
regarding the applicable legal analysis, since applicant does not
challenge the legal principle that courts, when faced with a request
such as respondent's, must weigh the defendant's constitutional right
to a fair trial against the public's asserted common law right.  See
Appl. 6-7, 10-14;  Baltimore Sun Co. v. Goetz, 886 F.2d at 65.  /17/
And this case does not involve an issue regarding the public's ability
to obtain documents under seal, where publication could compromise
ongoing investigations, breach recognized privileges or
confidentiality agreements, or otherwise endanger individuals' safety.
 See note 14, supra;  see also 28 C.F.R. 50.9(e) (exceptions to
Department of Justice Guidelines on open judicial proceedings).

   At bottom, the single issue presented is quite narrow, namely,
whether the lower courts -- on the record presented -- properly
balanced applicant's constitutional right to a fair trial against the
public's common law right of access.  In our view, there is no
reasonable probability that four Members of this Court would vote to
grant certiorari in order to resolve that fact-specific issue.  Nor is
there a reasonable probability that five Members of the Court would
vote to overturn the lower courts' conclusion that unsealing the
remaining paragraph of the affidavit will not undermine applicant's
ability to receive a fair trial in state court, particularly where, as
here, the public already has had access to substantial amounts of
information regarding applicant's pending criminal case, including the
bulk of the search warrant affidavit expressly implicating him in the
girl's disappearance.

   It is therefore respectfully submitted that the application for a
stay be denied.

   KENNETH W. STARR

      Solicitor General

   JANUARY 1991

   /1/ In the district court, the United States joined applicant and
the Commonwealth of Virginia in opposing respondent's motion to the
extent it sought unsealing of that paragraph of the affidavit.  Nov.
27, 1990, Tr. 5-6.  In the court of appeals, the United States,
appearing as amicus curiae, took the position that the district
court's order should be affirmed unless the Fourth Circuit "determines
that the district court's reasons for the unsealing order were not
sufficiently specific." U.S.C.A. Br. 17;  see id. at 11.

   /2/ Respondent also maintained that "there is a First Amendment
right of access to search warrant affidavits," but acknowledged that
"it is unnecessary for (the court) to reach the First Amendment issue,
because the common law right of access to these materials is so firmly
established in (the Fourth Circuit)." Resp. C.A. Br. Attach. 1, at 2
n.1.

   /3/ In an affidavit submitted to the court, applicant's counsel
explained that the search warrant affidavit at issue "outlines the
Government's theory of the case, including identifying specific
factual allegations alleged to be incriminating in nature." Appl. C.A.
Br. Exh. 1, at 2.  Counsel contended that "dissemination of this
information to (respondent) and therefore, the entire print,
television and radio news media, will without doubt ensure that
(applicant) will never be able to obtain a fair trial in Fairfax
County." Ibid.

   /4/ The Commonwealth did not enter an appearance before the court.
Its position was submitted by the United States.

   /5/ At that time, the United States provided respondent with a
redacted copy of the affidavit (deleting only that paragraph), even
though the document remained under seal.  U.S.C.A. Br. 7.  Applicant
no longer challenges release of those portions of the affidavit.

   /6/ Before the district court, the United States took the position
that "(u)sing the balancing test prescribed by the Fourth Circuit and
erring in favor of caution, (it) would ask the (court) not to unseal
that portion of the affidavit that relates to that inadmissible
evidence contained in that paragraph." Nov. 27, 1990, Tr. 6.

   /7/ During the hearing, the district court noted that

      (w)e have had previous experience selecting a jury in a case
      that involved (the missing girl).  The two men who faked the
      extortion, or they didn't fake the extortion -- they faked
      knowledge of the whereabouts of the child in order to try to
      extort money from the child's mother.  Judge Cacheris selected
      that jury in less than a couple of hours.

Nov. 27, 1990, Tr. 16.

   /8/ The United States supported applicant's request for a brief
stay, noting that such time would "give the Government an opportunity
* * * to consult with the Commonwealth Attorney in Fairfax County (,
since) (h)e is really the main party in interest at this point here."
Nov. 27, 1990, Tr. 23.

   /9/ The Commonwealth of Virginia filed a brief amicus curiae
supporting applicant.

   /10/ The court rejected the dissent's view that it should defer to
the decision reached by the magistrate, not the district judge.  In
the majority's view, the "assertion that a reviewing court must ignore
the judgment of a district court and defer to the opinion of a
magistrate who has no experience with voir dire in felony cases
involving pretrial publicity cannot stand as a matter of logic or
law." Appl. Exh. 5, at 6 n.2.

   /11/ The court observed that

      (a) trial court is in the best position to understand the
      intricate workings of criminal trial procedures, the varying
      methods of voir dire, jurors' responses to pretrial publicity,
      and whether a defendant can be granted a fair trial.  Such
      fundamental aspects of trying a case are grist for the trial
      court's mill.

Appl. Exh. 5, at 8.

   /12/ The court of appeals rejected applicant's contention, joined
by the Commonwealth as amicus curiae, that the district court should
not have considered respondent's motion, but instead should have
transferred the motion to the Fairfax County Circuit Court.  The court
pointed out that "(d)espite their protestations, * * * they offer no
theory on which a transfer of the question could be predicated." Appl.
Exh. 5, at 9.  In any event, the court stated that "(w)hile the
federal and state judicial districts are not of course identical, the
federal court is hardly ignorant of the characteristics of the region
from which the jurors will be drawn;  the federal district here
includes Fairfax and adjacent counties." Ibid.

   /13/ The court also noted "the availability of additional
safeguards of an impartial jury.  If voir dire proves inadequate, the
defense may move for either a continuance or a change of venue." Appl.
Exh. 5, at 15.  The court made clear that it was not "plac(ing)
primary reliance upon either of those procedures," but merely pointing
out that "they do exist as a backstop for those extremely rare
instances where twelve unbiased jurors cannot be selected." Ibid.

   /14/ The court declined to address "the situation where disclosure
of an affidavit would compromise an ongoing investigation or endanger
the safety of witnesses," because that was not at issue.  Appl. Exh.
5, at 17 n.4.

   /15/ For that reason, this case does present an occasion to resolve
the conflict among the courts of appeals over that issue.  Compare
Baltimore Sun Co. v. Goetz, 886 F.2d 60, 64-65 (4th Cir. 1990) (First
Amendment does not provide right of access) with In re Search Warrant
for Secretarial Area, 855 F.2d 569, 572-575 (8th Cir. 1988) (First
Amendment provides right of access).

   /16/ In Warner Communications, Inc., the Court acknowledged that

         (i)t is difficult to distill from the relatively few judicial
      decisions a comprehensive definition of what is referred to as
      the common-law right of access or to identify all the factors to
      be weighed in determining whether access is appropriate.

435 U.S. at 598-599.  Indeed, in that case, the Court did "not
undertake to delineate precisely the contours of the common-law right
* * * (because it) assume(d), arguendo, that is applies to the tapes
at issue * * *." Id. at 599.

   /17/ Applicant contends that the decision below "provides a
virtually unlimited right of access without regard to, or thought of,
the rights of a criminal defendant facing a charge with a possible
life sentence." Appl. 7.  Even a cursory reading of the court of
appeals' opinion belies this assertion.