### 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 STARTRIBUNECOMPANY; 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 ofmandamus 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 thepetition inpart and deny it inpart.

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. Afourth 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 theattacks. InApril 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 forthese materialswill be considered." United Statesv. 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 Statesv. 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 thathavebeen shown to the jury in open courtbut 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 themotion 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" numberofexhibits and associated difficulties, including the Government's exhibit numbering system and "the potential that some evidence will onlybe 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 logisticaldifficulties, 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 canbepublicly 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 (Inre Washinaton Post Co.i, 807 F.2d 4383, 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. Thequestionofwhether Petitioners' claimed right of

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

## see United Statesv. Bakker (Inre Charlotte Observer (Div. of Kniaht Publ'a Co.)), 882 F.2d 850, 854 (4thCir. 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 andwritten 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 Inre S.C. PressAss'n, 946F.2d 1037, 1039-40 (4th Cir. 1991)

## . Although it appears that members of the press and the public werenot notified,anddid nothave an opportunity tobe 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 

### -- publicbe 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 ofmanaging the extraordinary quantity of evidence involved, the complexity of the exhibits, and the concern that the jurywouldbe tainted "if informationnot yet shown to the jury ispublicly available and seenby a juror." March 10 Order, at 3. This latter concern focused particularly on the stipulations, all ofwhichhad been admittedbut only someofwhich 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 (4thCir. 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-Enterprise11)

### , 478 U.S. 1, 13-14 (1986)

## . We have little difficulty concluding that the district court didnot abuse itsdiscretion inrefusing 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 thepetition forawrit ofmandamus 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 requiredas to the rather puzzling category of exhibits that are "declassified only for the limited purpose of being discussed in courtand shown to the jury without unrestrictedpublic access." Feb. 14 Order, at 2. To the extent that such exhibits are published tothe jury in open court, such that members of the public are apprised of the contents of the exhibit (for example, in the case of adeclassified document that isread 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 itsdiscretion in denying access. "Once 

## ... evidence has become known to themembers 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 Statesv. Mvers (In

reNat'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 exhibitsthathave been fully published tothejury 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 jurorsnot toexpose themselves to media coverage of the trial;daily questioningby the court demonstrates that the jurors have obeyed this instruction. SeeVallev Broad. Co. v. United States 

### D. Ct., 798 F.2d 1289, 1297 (9thCir. 1986)

(rejecting,asspeculative, 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 recordsbut 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) ("Thecommon law does not afford asmuch substantive protection tothe interestsofthepress and thepublic 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 areways 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 intoevidence 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 toadopt amechanism 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 shouldbe made available as

soon as is practically possible, but in no event later than 10:OO a.m. on the day after the exhibit ispublished 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 theyare entitled to transcripts of bench conferences before the trial is without merit. The Supreme Court has indicated that the existence ofa First Amendmentright 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 609n.25; see alsoRichmond Newspapers, 448 U.S. at 598n.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, courtsthat 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 (11thCir. 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 conferencesaspart of the transcripts of the proceedings thatarepublished daily. As support for this contention, Petitioners rely on United States v. Smith 787 F.2d 111, 114-15 (3d Cir. 1986), in which the Third I 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 didnot 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 eventualrelease 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 isGRANTEDwith respect to documentary exhibits thathave 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 longasaccess isprovided 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.