1996 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-30-1996

United States v. Preate

Precedential or Non-Precedential:

Docket 95-7651

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Recommended Citation

"United States v. Preate" (1996). 1996 Decisions. Paper 133.

http://digitalcommons.law.villanova.edu/thirdcircuit_1996/133
 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 

 ___________ 

 NO. 95-7651 

 ___________ 

 

 UNITED STATES OF AMERICA 

 v. 

 ERNEST D. PREATE, JR. 

 PG PUBLISHING, 

 Appellant 

 

 ____________________________ 

 On Appeal From the United States District Court 

 For the Middle District of Pennsylvania

 (D.C. Cr. No. 95-cr-00153) 

 ____________________________ 

 

 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 

 _____________________________ 

 OPINION OF THE COURT 

 _____________________________ 

BECKER, Circuit Judge. 

 The ultimate question in this appeal is whether the 

district court abused its discretion in declining to continue a 

sentencing proceeding so that a newspaper could fully litigate 

its motion to unseal sentencing documents. The defendant has now 

been sentenced and the district court, after sentencing, 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 the district 

court did not abuse its discretion in refusing to postpone the 

sentencing. We will therefore affirm the judgment of the 

district court. 

 I. Facts and Procedural History 

 Like most media access cases, this one revolves around 

a cause celebre. The central character in the affair 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 held an inchambers conference at which the government and defense counsel 

discussed objections by both parties to Preate's presentence 

report. United States v. Preate, No. Crim.1:CR-95-153, 1996 WL 

271843 (M.D. Pa. May 20, 1996). A court reporter filed the 

transcript of the proceedings. On October 23, 1995, the court 

issued a one sentence order directing that "the transcript of the 

October 16, 1995, in-chambers conference [be] sealed 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 court 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 Publishing, 

publisher of the Pittsburgh Post-Gazette, moved to unseal the in 

camera submission and the transcript of the in-chambers 

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 not 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 on the motion 
to unseal (except to place its reasons for sealing on the 

record). 

 On December 6, 1995, PG Publishing moved in the 

district court to continue the sentencing pending court of 

appeals action on its mandamus petition. In the same 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 continue 

sentencing. Preate also opposed the motion. By Order of 

December 8, 1995, the district court denied the Motion to 

Continue Sentencing and further denied PG Publishing intervenor 

status. The Order explained the basis for these actions: PG 

Publishing "fails to explain what harm it will suffer if 

Defendant is sentenced before the Third Circuit rules on its 

mandamus petition, or what interest it has in the date 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 pending 

determination of its emergency petition for Writ of Mandamus. We 

denied that motion on December 12, 1995. On December 14, 1995, 

Preate was sentenced. On January 17, 1996, we denied the 

Petition for a Writ of Mandamus, "without prejudice to the 

petitioner seeking whatever relief it deems appropriate if the 

district court denies its motion to unseal the documents." Id. 

at 7. 

 On May 20, 1996, shortly before this appeal 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 proffer. The 

government and Preate, having moved to dismiss this appeal as 

moot because Preate had already been sentenced, supplemented 

their motion, referencing this new order as an additional ground 

for dismissal. PG Publishing filed papers in opposition. 

 

 II. Mootness 

 PG Publishing argues that the district court erred in 

denying its motion to continue sentencing. Both Preate and the 

government maintain that this appeal is moot because Preate has 

already been sentenced. While it is true that Preate cannot be 

"unsentenced," this appeal is not moot because, as PG Publishing 

contends, the issue is capable of repetition yet evading 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 be enough time 

between a motion by the media to continue a sentencing and the 

date of the sentencing to permit an access issue to be fully 

litigated (at the trial and appellate levels). Under such 

circumstances, our case law makes clear that the issue is not 

moot. See, e.g., United States v. Antar, 38 F.3d 1348, 1356 (3d 

Cir. 1994) (challenge to sealing of voir dire transcript not 

mooted by conclusion of criminal trial); United States v. A.D., 

28 F.3d 1353, 1355 n.1 (3d Cir. 1994) (PG Publishing's motion to 
intervene 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 States v. Raffoul, 

826 F.2d 218, 222 (3d Cir. 1987) (closure of courtroom during 

defendant's testimony not moot though proceedings are concluded); 

United States v. Criden, 675 F.2d 550, 553-54 (3d Cir. 1982) 

(sealing of pre-trial hearing and transcript not moot though 

proceeding concluded and transcript publicly available). 

 

 III. Did the District Court Abuse Its Discretion 

 in Refusing to Continue the Sentencing

 We review the district court's decision to deny PG 

Publishing's request for continuance for abuse of discretion. 

Pansy v. Borough of Stroudsburg, 23 F.3d 772, 777, 783 (3d Cir. 

1994). This is an issue that need not detain us long. We note 

at the outset the basic proposition that our review of matters 

pertaining to calendar management by the district courts, 

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 Raffoul, 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 550, 559 (3d 

Cir. 1982). However, we have never held that an open sentencing 

proceeding be delayed while the propriety of closure of documents 

relevant to that proceeding is litigated. We decline to do so 

under the unique set of facts presented here. 

 In this particular case, the district court was 

confronted with an extraordinarily high profile situation. The 

publicity had been enormous throughout all of Pennsylvania. The 

United States Attorney's Office was pressing for an early 

sentencing to prevent the defendant, the State's chief law 

enforcement officer, from further disseminating, through 

statements reported in the media, his allegedly misleading "spin" 

on the facts of his conviction. It properly wanted to conclude 

this important case as soon as possible. The defendant himself 

opposed a continuance. The sentencing was open and could be 

reported, hence there was no "news blackout." We cannot 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 be affirmed. 

 _____________________