UNITED STATES COURT OF APPEALS FILED: March 22, 2006 

FOR THE FOURTH CIRCUIT 

No. 06-1301 

In Re: ASSOCIATED PRESS; CABLE NEWS NETWORK 

LP, LLP; THE HEARST CORPORATION; NBC 

UNIVERSAL, INCORPORATED; THE NEW YORK TIMES 

COMPANY; WP COMPANY LLC, d/b/a The Washington 

Post; USA TODAY; THE STAR TRIBUNE COMPANY; THE 

REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, 

Petitioners. 

ORDER 

Petitioners, several media companies and a nonprofit 

organization, have filed a petition for a writ of mandamus seeking 

contemporaneous access to documentary exhibits admitted into 

evidence in the course of the sentencing phase trial of Zacarias 

Moussaoui. Petitioners also seek access to transcripts of bench 

conferences conducted during the course of the trial. For the 

reasons set forth below, we grant the petition in part and deny it 

in part. 

1. 

On September 11, 2001, members of the terrorist organization 

a1 Qaeda hijacked three passenger aircraft and crashed them into 

the Pentagon and the World Trade Center towers in New York. A 
fourth plane, apparently destined for the United States Capitol, 

crashed in Pennsylvania after passengers wrested control from the 

hijackers. The attacks resulted in the deaths of over 3,000 men, 

women, and children. 

Moussaoui is the only individual thus far criminally charged 

with involvement in the attacks. In April 2005, Moussaoui pleaded 

guilty to multiple charges in connection with the attacks, several 

of which carry the death penalty as a potential sentence. 

Accordingly, on March 6, a sentencing hearing began before a jury 

for the determination of the appropriate penalty. Prior to the 

commencement of the hearing, on February 14, the district court 

entered two orders. A written order provided that "none of the 

exhibits entered into evidence will be made available for pubic 

review until the trial proceedings are completed, at which time 

requests for these materials will be considered." United States v. 

Moussaoui, No. 1:01cf455, at 3 (E.D. Va. Feb. 14, 2006) (order 

denying access to exhibits entered into evidence) [hereinafter 

"Feb. 14 Order"]. During a pretrial conference, the court ordered 

that transcripts of bench conferences would be sealed until the 

conclusion of the trial, at which time they would be unsealed 

unless the transcript contained "some sensitive matter that 

couldn't be public." Transcript of hearing at 16, United States v. 

Moussaoui, No. 1:01cr455 (E.D. Va. Feb. 14, 2006). 
Petitioners thereafter moved to intervene and for 

contemporaneous access to transcripts of bench conferences and to 

documentary exhibits admitted at trial. The documentary exhibits 

to which Petitioners seek access include not only printed material 

(such as documents, maps, and photographs), but also videotapes 

that have been shown to the jury in open court but not transcribed. 

The Government and Moussaoui filed oppositions to the motion for 

access. The district court granted the motion to intervene and 

initially scheduled a hearing on the motion for access for 

February 24, but it subsequently cancelled the hearing. 

On March 10, Petitioners filed this petition for a writ of 

mandamus, asserting a First Amendment right to contemporaneous 

access to documentary exhibits and transcripts of bench 

conferences--the same materials to which Petitioners sought access 

in the district court. Later that day, the district court entered 

an order denying the motion for access that had been filed in that 

court. With respect to the documentary exhibits, the court ruled 

that contemporaneous access was "logistically impossible," citing 

the "extraordinary" number of exhibits and associated difficulties, 

including the Government's exhibit numbering system and "the 

potential that some evidence will only be partially declassified." 

United States v. Moussaoui, No. 1:01cr455, at 2 (Mar. 10, 2006) 

(order denying motion for access to certain portions of the record) 

[hereinafter "March 10 Order"]. In addition to logistical 
difficulties, the court noted a "significantN potential for 

"undermining the integrity of the proceeding" if jurors were 

exposed to evidence through the media before it was presented in 

court. Id. at 2-3. This concern related particularly to a "thick 

set of stipulations," id. at 3, that had been fully admitted into 

evidence but only partially published to the jury. 

The court also denied access to transcripts of bench 

conferences, reasoning that "neither the media nor the public has 

a clearly established right under either the common law or the 

First Amendment" to such transcripts. Id. at 4. Indeed, the court 

observed, contemporaneous public access to transcripts of bench 

conferences "would undermine the very reason for having such 

conferences." Id. at 3. The court rejected Petitioners' proposed 

compromise--whereby transcripts would be unsealed after a certain 

amount of time unless a party presented a reason not to unseal-- 

stating that "to expect either the Court or counsel in the midst of 

an extremely complicated case to review transcripts of bench 

conferences to decide if they can be publicly disclosed presents an 

unreasonable and inappropriate burden." - Id. at 4. 

11. 

There is no doubt that the First Amendment guarantees the 

public and the media the right to attend criminal trials. See 

Globe NewspaDer Co. v. Superior Court, 457 U.S. 596, 603 (1982); 

United States v. Soussoudis (In re Washinaton Post Co.i, 807 F.2d 

4 
383, 388 (4th Cir. 1986). That right is not in question here. 

What Petitioners claim is the additional right to contemporaneous 

access to documentary exhibits and transcripts of bench 

conferences. The question of whether Petitioners' claimed right of 

access exists is a legal one, and hence is subject to de novo 

review, see United States v. Bakker (In re Charlotte Observer (Div. 

of Kniaht Publ'a Co.)), 882 F.2d 850, 854 (4th Cir. 1989), while 

the restrictions on access fashioned by the district court are 

reviewed for abuse of discretion, see Nixon v. Warner Comrnc'ns, 

Inc., 435 U.S. 589, 599 (1978). 

A. Notice and an O~~ortunitv To Be Heard 

Petitioners first contend that the oral and written orders of 

February 14 are facially invalid because they were issued without 

prior notice and an opportunity to be heard. We conclude that any 

defects that existed at the time of the February 14 orders have 

been cured by subsequent proceedings. 

It is well established that "representatives of the press and 

general public must be given an opportunity to be heard on the 

question of their exclusion" from a judicial proceeding. In re 

Kniaht Publ'a Co., 743 F.2d 231, 234 (4th Cir. 1984) (internal 

quotation marks omitted). The failure to provide notice and an 

opportunity to object renders a closure of proceedings invalid. 

See In re S.C. Press Ass'n, 946 F.2d 1037, 1039-40 (4th Cir. 1991) . 

Although it appears that members of the press and the public were 
not notified, and did not have an opportunity to be heard, prior to 

the entry of the February 14 orders, there is no question that 

Petitioners' objections to the denial of access have been aired 

before the district court and addressed in the March 10 Order. 

-- See id. at 1040 ("In re Kniaht requires only that the press and 

public be given notice and an opportunity to object to closure."). 

We therefore conclude that Petitioners have received, albeit 

belatedly, the process to which they are entitled. 

B. Documentarv Exhibits 

Petitioners contend that they are entitled to same-day access 

to documentary exhibits--a category which includes written 

documents, videotapes, and photographs--that are admitted into 

evidence. The district court based its refusal to provide such 

access on the difficulty of managing the extraordinary quantity of 

evidence involved, the complexity of the exhibits, and the concern 

that the jury would be tainted "if information not yet shown to the 

jury is publicly available and seen by a juror." March 10 Order, 

at 3. This latter concern focused particularly on the 

stipulations, all of which had been admitted but only some of which 

had been read to the jury. 

It is undisputed that there is a right of access to judicial 

records filed in connection with criminal proceedings. Although 

the Supreme Court has stated no more than that this right is 

grounded in the common law, see Warner Commc'ns, 435 U.S. at 598- 
99, the Fourth Circuit has explicitly identified the right as 

arising from the First Amendment, see In re Time Inc., 182 F.3d 

270, 271 (4th Cir. 1999). However, this right is a qualified one 

and may be limited by a compelling interest in preserving the 

fairness of the trial, provided the restriction on access is 

narrowly tailored. See Press-Enterprise Co. v. Superior Court 

(Press-Enterprise 11) , 478 U.S. 1, 13-14 (1986) . 

We have little difficulty concluding that the district court 

did not abuse its discretion in refusing to provide access to items 

that have been admitted into evidence but that have not yet been 

published to the jury, or that have been published only in part. 

We therefore deny the petition for a writ of mandamus to the extent 

that Petitioners seek access to any documentary exhibit that falls 

into this category, i.e., any exhibit that has been admitted into 

evidence but not yet fully published to the jury. Our denial 

includes items that have been partially published to the jury; we 

agree with the district court that the administrative burdens, to 

the court and to the parties, associated with requiring piecemeal 

access to partially admitted exhibits justify a refusal to provide 

access to admitted exhibits until they have been fully published to 

the jury. 

A special note is required as to the rather puzzling category 

of exhibits that are "declassified only for the limited purpose of 

being discussed in court and shown to the jury without unrestricted 
public access." Feb. 14 Order, at 2. To the extent that such 

exhibits are published to the jury in open court, such that members 

of the public are apprised of the contents of the exhibit (for 

example, in the case of a declassified document that is read aloud 

to the jury), we conclude that Petitioners are entitled to access 

to the exhibit under the terms outlined below. However, to the 

extent the contents of such an exhibit are concealed from the 

public for reasons of national security, we conclude that 

Petitioners are not entitled to access which has not been granted 

to the public at large. 

As for documentary exhibits that have been admitted into 

evidence and fully published to the jury, we conclude that the 

district court abused its discretion in denying access. "Once ... 

evidence has become known to the members of the public ... through 

their attendance at a public session of court, it would take the 

most extraordinary circumstances to justify restrictions on the 

opportunity of those not physically in attendance at the courtroom 

to see and hear the evidence, when it is in a form that readily 

permits sight and sound reproduction." United States v. Mvers (In 

re Nat'l Broad. Co.), 635 F.2d 945, 952 (2d Cir. 1980). As noted 

above, the district court identified two concerns in disallowing 

any contemporaneous access to exhibits: juror taint and 

administrative difficulties. The concern for juror taint is not 

well taken regarding exhibits that have been fully published to the 
jury because it is unlikely that simply seeing the evidence again 

through a media publication will endanger Moussaoui's right to a 

fair trial. See id. at 953. Moreover, the district court has 

repeatedly instructed the jurors not to expose themselves to media 

coverage of the trial; daily questioning by the court demonstrates 

that the jurors have obeyed this instruction. See Vallev Broad. 

Co. v. United States D. Ct., 798 F.2d 1289, 1297 (9th Cir. 1986) 

(rejecting, as speculative, supposition that jurors might disregard 

instructions not to watch media coverage of trial and possibility 

of incremental prejudice resulting from viewing videotaped evidence 

a second time). 

The administrative concerns of the district court are also 

insufficient to justify a complete denial of access. In Valley 

Broadcastinq, the Ninth Circuit concluded that administrative 

burdens were not sufficient to override the common law right of 

access to judicial records but acknowledged that "cases could arise 

in which the administrative burdens of access are so substantial 

that they justify denial [of access] on that basis alone." Id. at 

1295 & n.8; cf. Rushford v. New Yorker Maaazine. Inc., 846 F.2d 

249, 253 (4th Cir. 1988) ("The common law does not afford as much 

substantive protection to the interests of the press and the public 

as does the First Amendment."). We do not doubt that the 

administrative burdens facing the district court are enormous. 

Indeed, Petitioners themselves acknowledge this. However, 
Petitioners maintain--and we agree--that there are ways to ease the 

incremental administrative burdens that would arise from 

accommodating their First Amendment right of access, such as 

providing access to one copy of an exhibit--either through the 

parties or through the court--and requiring the media to make 

additional copies at their own expense. Ultimately, while we are 

sympathetic to the administrative burdens faced by the district 

court, we cannot agree that the incremental rise in those burdens 

that would be caused by providing access justifies the denial of 

access, until after the completion of trial, to all documentary 

exhibits that have been admitted into evidence and fully published 

to the jury. With respect to such exhibits, therefore, we grant 

the petition for a writ of mandamus and direct the district court 

to adopt a mechanism that will provide the media with one copy of 

each documentary exhibit that has been admitted into evidence and 

fully published to the jury. This copy should be made available as 

soon as is practically possible, but in no event later than 

10:OO a.m. on the day after the exhibit is published to the jury, 

or, in the case of an exhibit that is published to the jury in 

parts, after all parts of the exhibit have been published. 

C. Bench Conferences 

Petitioners' contention that they are entitled to transcripts 

of bench conferences before the trial is without merit. The 

Supreme Court has indicated that the existence of a First Amendment 
right to observe trial proceedings does not necessarily extend to 

all parts of a trial. See Richmond Newspapers, Inc. v. Virsinia, 

448 U.S. 555, 581 n.18 (1980) (plurality opinion). And, bench 

conferences traditionally are not open to the public. See Globe 

Newspaper, 457 U.S. at 609 n.25; see also Richmond Newspapers, 448 

U.S. at 598 n.23 (Brennan, J., concurring in the judgment) ("[Wlhen 

engaging in interchanges at the bench, the trial judge is not 

required to allow public or press intrusion upon the huddle. ") . 

Accordingly, courts that have considered the issue have recognized 

the authority of the district court to exclude the public from 

bench conferences. See, e.s., United States v. Valenti, 987 F.2d 

708, 713-14 (11th Cir. 1993); United States v. Edwards, 823 F.2d 

111, 116-17 (5th Cir. 1987). We agree with our sister circuits. 

Petitioners maintain, however, that they do have a First 

Amendment right to review transcripts of bench conferences as part 

of the transcripts of the proceedings that are published daily. As 

support for this contention, Petitioners rely on United States v. 

I Smith 787 F.2d 111, 114-15 (3d Cir. 1986), in which the Third 

Circuit held that the public has at least a common law right to 

review transcripts of bench conferences involving evidentiary 

rulings. However, the Third Circuit in Smith did not rule that the 

public and press must be provided access to transcripts of bench 

conferences while a trial is ongoing. See id. at 114. Assuming 

that there is a constitutional or common law interest in eventual 
release of transcripts of bench conferences, this right is amply 

satisfied by prompt post-trial release of transcripts. See 

Edwards, 823 F.2d at 119. We therefore deny Petitioners' mandamus 

petition to the extent that they seek contemporaneous or nearcontemporaneous access to transcripts of bench conferences. 

For the reasons set forth above, the petition for a writ of 

mandamus is GRANTED with respect to documentary exhibits that have 

been admitted into evidence and fully published to the jury. 

Access should be provided by the district court in the manner 

provided in Part 1I.B. of this order or in some other fashion, as 

long as access is provided within the identified time limitations. 

In all other respects, the petition is DENIED. 

Entered at the direction of Chief Judge Wilkins, with the 

concurrences of Judge Gregory and Judge Duncan.