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. e du/thir dc ir c uit_1996/133UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

NO. 95-7651

___________

UNITED STATES OF AMERICA

v.

ERNEST D. PREATE, JR.

PG PUBLISHING, Appellant

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On Appeal From the United States District C ourt For the Middle District of Pennsylvania (D.C. Cr. No. 95-cr-00153)

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Argued: June 4, 1996

Before: BECKER, MANSMANN, Circuit Judges, and BROTMAN, District Judge.

(Filed July 30, 1996)

Robert B. Hoffman, Esquire (ARGUED) W. Thomas McGough, Jr., Esquire Renee C. Mattei, Esquire Reed, Smith, Shaw & McClay 213 Market Street, 9th Floor
P.O. Box 11844 Harrisburg, PA 17108

Attorney for Appellant

William A. Behe, Esquire (ARGUED) David M. Barasch, Esquire Office of United States Attorney Federal Building
228 Walnut Street
P.O. Box 11754 Harrisburg, PA 17108

Attorney for United States of America, Appellee

Edward S. G. Dennis, Jr., Esquire Victor T. Limongelli, Esquire (ARGUED)John C. Dodds, Esquire

Morgan, Lewis & Bockius 2000 One Logan Square Philadelphia, PA 19103

Attorney for Ernest D. Preate, Jr., Appellee

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OPINION OF THE COURT

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BECKER, Circuit Judge. The ultimate question in this appeal is wh ether the district court abused its discretion in declining t o continue a sentencing proceeding so that a newspaper could ful ly litigate its motion to unseal sentencing documents. The def endant has now been sentenced and the district court, after senten cing, unsealed the requested material. The continuance question, however, is capable of repetition yet evading review, and hence the appeal is not moot. Reaching the merits, we conclude that th e district court did not abuse its discretion in refusing to p ostpone the sentencing. We will therefore affirm the judgment of the
district court.

I. Facts and Procedural History Like most media access cases, this one rev olves around
a cause celebre. The central character in the affa ir is Ernest Preate, formerly Attorney General of Pennsylvania. Preate pled guilty to a one count Information charging him with mail fraud in connection with illegal campaign contributions. On October 16, 1996, the district court he ld an inchambers conference at which the government and def ense counsel discussed objections by both parties to Preate's pr esentence report. United States v. Preate, No. Crim.1:CR-95- 153, 1996 WL 271843 (M.D. Pa. May 20, 1996). A court reporter f iled the transcript of the proceedings. On October 23, 1995 , the court issued a one sentence order directing that "the tra nscript of the October 16, 1995, in-chambers conference [be] seale d until further order of court." Appellant's Brief at 3. After the conference, the government wished to offer evidence supporting the sentencing enhancements it was seeking. The co urt directed that the government submit an in camera proffer of this evidence. The government did so on November 6, 1995. On November 13, 1995, appellant PG Publish ing, publisher of the Pittsburgh Post-Gazette, moved to unseal the in camera submission and the transcript of the in-cham bers conference. Via this motion, PG Publishing sought to expose the full facts of Preate's offense to public view. Concluding that the district court would n ot reach the merits of its motion prior to Preate's December 14, 1995, sentencing, PG Publishing filed with this Court on November 16, 1995, an Emergency Petition for a Writ of Mandamus. In the wake of this filing, the district court took no action o n the motionto unseal (except to place its reasons for sealing on the

record). On December 6, 1995, PG Publishing moved i n the district court to continue the sentencing pending c ourt of appeals action on its mandamus petition. In the sa me motion, PG Publishing also sought intervenor status. Although the government had consistently supported PG Publishing with respect to open proceedings, it opposed the motion to conti nue sentencing. Preate also opposed the motion. By Or der of December 8, 1995, the district court denied the Mot ion to Continue Sentencing and further denied PG Publishin g intervenor status. The Order explained the basis for these ac tions: PG Publishing "fails to explain what harm it will suff er if
Defendant is sentenced before the Third Circuit rul es on its mandamus petition, or what interest it has in the d ate of Defendant's sentencing." Appellant's Brief at 6. On December 9, 1995, PG Publishing filed the Notice of Appeal that is presently
before us. On December 11, 1995, PG Publishing filed with this Court an emergency motion to stay sentencing pendin g determination of its emergency petition for Writ of Mandamus. We denied that motion on December 12, 1995. On Decemb er 14, 1995, Preate was sentenced. On January 17, 1996, we deni ed the Petition for a Writ of Mandamus, "without prejudice to the petitioner seeking whatever relief it deems appropr iate if the
district court denies its motion to unseal the docu ments." Id.
at 7. On May 20, 1996, shortly before this appea l of the December 8, 1995, continuance ruling was scheduled to be heard, the district court granted PG Publishing's November 15, 1995, motion to unseal the transcript and the in camera p roffer. The government and Preate, having moved to dismiss this appeal as moot because Preate had already been sentenced, sup plemented their motion, referencing this new order as an addi tional ground for dismissal. PG Publishing filed papers in oppos ition.

II. Mootness PG Publishing argues that the district cou rt erred in denying its motion to continue sentencing. Both Pr eate and the government maintain that this appeal is moot becaus e Preate has already been sentenced. While it is true that Prea te cannot be "unsentenced," this appeal is not moot because, as PG Publishing contends, the issue is capable of repetition yet ev ading review. See, e.g., Wagner v. Fair Acres Geriatric Ctr., 49 F.3d 1002, 1008 n.7 (3d Cir. 1995).
The fact is that there will almost never b e enough time between a motion by the media to continue a sentenc ing and the date of the sentencing to permit an access issue to be fully litigated (at the trial and appellate levels). Und er such circumstances, our case law makes clear that the is sue is not moot. See, e.g., United States v. Antar, 38 F.3d 1 348, 1356 (3d Cir. 1994) (challenge to sealing of voir dire trans cript not mooted by conclusion of criminal trial); United Sta tes v. A.D., 28 F.3d 1353, 1355 n.1 (3d Cir. 1994) (PG Publishin g's motion tointervene and to unseal juvenile records not mooted by conclusion

of proceedings against juveniles); United States v. Simone, 14 F.3d 833, 836 (3d Cir. 1994) (newspaper's motion to intervene and for access to closed post-trial proceeding not moot after proceedings were closed and concluded); United Stat es v. Raffoul, 826 F.2d 218, 222 (3d Cir. 1987) (closure of courtr oom during defendant's testimony not moot though proceedings a re concluded); United States v. Criden, 675 F.2d 550, 553-54 (3d C ir. 1982) (sealing of pre-trial hearing and transcript not mo ot though proceeding concluded and transcript publicly availa ble).

III. Did the District Court Abuse Its Dis cretion in Refusing to Continue the Sentencing
We review the district court's decision to deny PG Publishing's request for continuance for abuse of d iscretion. Pansy v. Borough of Stroudsburg, 23 F.3d 772, 777, 783 (3d Cir. 1994). This is an issue that need not detain us lo ng. We note at the outset the basic proposition that our review of matters pertaining to calendar management by the district c ourts, including the scheduling of sentencing proceedings, is extremely deferential. See Lacey v. Cessna Aircraft Co., 932 F.2d 170, 178 (3d Cir. 1991). Our earlier cases, including Criden and Ra ffoul, have stressed that pretrial or trial motions for closure be docketed in order to allow interested members of the public to protest such closure. See United States v. Raffoul, 826 F. 2d 218, 221 (3d Cir. 1987); United States v. Criden, 675 F.2d 5 50, 559 (3d Cir. 1982). However, we have never held that an op en sentencing proceeding be delayed while the propriety of closur e of documents relevant to that proceeding is litigated. We decli ne to do so under the unique set of facts presented here. In this particular case, the district co urt was confronted with an extraordinarily high profile sit uation. The publicity had been enormous throughout all of Penns ylvania. The United States Attorney's Office was pressing for an early sentencing to prevent the defendant, the State's ch ief law enforcement officer, from further disseminating, th rough statements reported in the media, his allegedly mis leading "spin" on the facts of his conviction. It properly wanted to conclude this important case as soon as possible. The defen dant himself opposed a continuance. The sentencing was open and could be reported, hence there was no "news blackout." We c annot say that, under those circumstances, the district court abused its discretion in refusing to continue the sentencing. Its order denying the motion for continuance will therefore b e affirmed.

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