IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-40221

HEARST NEWSPAPERS, L.L.C., doing business as

Houston Chronicle,

Intervenor Plaintiff - Appellant

_____________________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

OZIEL CARDENAS-GUILLEN,

Defendant - Appellee

v.

HEARST NEWSPAPERS, L.L.C., doing business as Houston Chronicle,

Intervenor - Appellant

Appeal from the United States District Court

for the Southern District of Texas

Before BARKSDALE, DENNIS, and HAYNES, Circuit Judges.

DENNIS, Circuit Judge:

United States Court of Appeals

Fifth Circuit

F I L E D

May 17, 2011

Lyle W. Cayce

Clerk

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This case involves a district court’s order to close the sentencing

proceeding of a drug cartel leader without first giving the press and public

notice and an opportunity to be heard regarding the decision to close the

hearing. We conclude that the press and public have a First Amendment

right of access to sentencing hearings, and that the district court should have

given the press and public notice and an opportunity to be heard before

closing the sentencing proceeding in this case.

BACKGROUND

Oziel Cardenas-Guillen, the former leader of the Gulf Cartel, a

notorious Mexican drug cartel, was arrested in Mexico in 2003. At the time,

according to the government, Cardenas-Guillen was considered “one of the

most wanted, feared, and violent drug traffickers in the world,” and was

“widely believed to be partly responsible for the ongoing drug trafficking wars

and ‘bloodbaths’ along the Mexican border, resulting in the deaths of

approximately 2000 persons.” Even while incarcerated in Mexico, he

“reportedly continued to coordinate the activities of his organization from

jail.”

In 2007, the United States took custody of Cardenas-Guillen. He was

charged, inter alia, with involvement in conspiracies to distribute large

quantities of marijuana and cocaine, violating the continuing-criminalenterprise statue, 21 U.S.C. § 848 (also known as the “drug kingpin statute”),

and threatening federal officers. The case was assigned to a district court in

the Brownsville Division of the Southern District of Texas.

The government moved to transfer the venue for the criminal trial from

Brownsville, Texas, to another location. Among other reasons, the

government cited concerns about being able to ensure the security of

personnel and civilians, due to the proximity of Brownsville to the Mexican

border. The government enclosed a letter from the United States Marshals

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Service explaining that Houston would be the best venue for holding the trial.

Cardenas-Guillen did not oppose the motion, and the district court granted

the transfer motion, directing that the case be transferred to Houston. The

case proceeded slowly, with almost all of the filings being made under seal.

Hearst Newspapers, L.L.C., doing business as the Houston Chronicle

(hereinafter “the Chronicle”), alleges that many of the filings were sealed

without following proper procedures.

On October 30, 2009, the Chronicle sent a letter to the district court,

making several requests. With regard to any future proceedings, the

Chronicle requested that the district court give notice and an opportunity to

be heard before closing such proceedings, and, if the court decided to close a

proceeding, to narrowly tailor such a closure and support its decision with onthe-record findings. The Chronicle also requested that the court unseal any

sealed documents or make on-the-record findings regarding why those

documents remained under seal, and narrowly tailor any sealing. In

response, the district court ordered the parties to explain why previously

sealed documents should remain under seal. The parties conceded that some

documents did not need to remain sealed, but argued that others should

remain under seal until the conclusion of the case.

On February 9, 2010, the Chronicle moved to intervene and requested

that any uncontested documents be unsealed immediately, that the docket be

updated to provide some indication of documents that had been sealed, that

the government’s sealed memoranda be unsealed at least in redacted form so

that the Chronicle could respond, and that the court narrowly tailor any

sealing through redaction and enter specific findings as to documents that

remained under seal. The Chronicle attached to the motion its letter of

October 30, 2009. At some point, Cardenas-Guillen agreed to plead guilty to

the charges against him, but this fact was not made public. On February 18,

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2010, the government moved to close his sentencing hearing for reasons of

public safety, and also moved to deprive the public of notice that the hearing

was taking place. The government attached to the motion the supporting

affidavit of George Hephner, the Supervisory Deputy United States Marshal

for the Houston Division Operations Section. The next day, without

additional proceedings, the district court granted the motion in a sealed

order. The order expressly stated that it would not be unsealed until after

the sentencing hearing took place. The district court also sealed the

government’s motion.

The court scheduled the sentencing for February 25, 2010. A local

television station received word that the trial of Cardenas-Guillen would

occur on that date and inquired of the court as to whether that information

was correct. After consulting with the United States Marshals Service, the

district court covertly rescheduled the sentencing hearing for February 24,

2010.

During the sentencing hearing on that day, a Chronicle reporter

discovered a closed courtroom where the proceeding was being held and

attempted to gain access. An attorney for the Chronicle joined the reporter

and filed a handwritten motion requesting the district court to open the

sentencing hearing and to give the Chronicle an opportunity to be heard

before the closed hearing was completed. The district court was aware of the

Chronicle’s efforts to access the proceedings and stated during the hearing

that “in spite of all the efforts to ensure that this hearing not be noticed by

the media, I am told that there is a reporter from the Houston Chronicle who

is, as I speak, drafting a motion regarding his request to be heard — or to be

present during the — the hearing.” The district court declined to decide the

motion at that time, and instead continued with the closed sentencing

proceeding. Although the proceeding was sealed, the primary case agents

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and victims, as well as Cardenas-Guillen’s wife and daughter, were permitted

to be present. Later that same day, after the sentencing proceeding had been

completed, the district court denied the Chronicle’s motion as moot.

At the sentencing, the district court accepted Cardenas-Guillen’s guilty

pleas and the plea agreement between him and the government. The court

then sentenced Cardenas-Guillen, in accord with the plea agreement, to (1) 25

years on one count of conspiracy to possess with intent to distribute both

cocaine and marijuana, in violation of 21 U.S.C. §§ 846, 841(a)(1), and

841(b)(1)(A); (2) 5 years each on three counts of threatening to assault and

murder federal agents, in violation of 18 U.S.C. §§ 115 and 2; and (3) 20 years

on a fifth count for conspiracy to launder monetary instruments, in violation

of 18 U.S.C. § 1956(a)(1)(A)(i),(a)(2)(A), and (h). The district court ordered

that all the sentences would run concurrently. The district court also ordered

that Cardenas-Guillen serve supervised release terms of 5 years on the count

of conspiracy to possess with intent to distribute both cocaine and marijuana,

and 3 years as to each of the other four counts, all to run concurrently.

Finally, the district court ordered Cardenas-Guillen to pay a fine of $100,000

and special assessments totaling $500, and entered a preliminary order of

forfeiture of $50 million. The district court also indicated that it would docket

the record of the hearing, which would make public the fact that a sentencing

hearing had occurred, once it was advised by the United States Marshals

Service that doing so would be safe.

The government explains in its brief, and the district court docket

confirms, that “[w]ithin hours of the sentencing hearing, the hearing was

docketed.” Gov. Br. 11. In addition, “the recording of the hearing and the

transcript of the hearing were [made] available to the public . . . .” Id. The

docket also shows that the Chronicle ordered a copy of the transcript, which

was completed on February 25, 2010, the day after the sentencing proceeding.

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On February 26, 2010, two days after the sentencing hearing, the

Chronicle filed a second motion to intervene. On that same date, the district

court, inter alia, granted the motion to intervene and denied the Chronicle’s

request for public notice of all future hearings and for an opportunity to be

heard if closure were contemplated.

On March 2, 2010, the district court issued an order amending its

February 24, 2010 order, to further explain the reasoning of its February 24,

2010 order. It also added that in denying the Chronicle’s motion to open the

sentencing proceeding and to be heard before the closure of the sentencing

proceeding, it had considered the filings submitted by the government, as well

as the Chronicle’s February 9, 2010 motion to intervene.

The Chronicle timely appealed. On appeal, the Chronicle challenges (1)

the district court’s order of February 24, 2010 (as amended by the March 2,

2010 order), denying as moot the Chronicle’s request to open the sentencing

proceeding; (2) the district court’s order of February 24, 2010 (as amended by

the March 2, 2010 order), denying as moot the Chronicle’s request for an

opportunity to be heard prior to closure; and (3) the district court’s order of

February 26, 2010, denying the Chronicle’s request for public notice of all

future hearings and an opportunity to be heard if the court intended to close

any future proceedings. The district court designated all three orders as final

and immediately appealable.

We have appellate jurisdiction over the orders under the collateral

order doctrine, which “establishe[s] that certain decisions of the district court

are final in effect although they do not dispose of the litigation.” Davis v. E.

Baton Rouge Parish Sch. Bd., 78 F.3d 920, 925 (5th Cir. 1996); see also 28

U.S.C. § 1291 (establishing the jurisdiction of the courts of appeal over final

decisions of district courts). “Appealable collateral orders include ‘those

district court decisions that are conclusive, that resolve important questions

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completely separate from the merits, and that would render such important

questions effectively unreviewable on appeal from final judgment in the

underlying action.’” Davis, 78 F.3d at 925 (quoting Digital Equip. Corp. v.

Desktop Direct, Inc., 511 U.S. 863, 867 (1994)). The orders in this case

certainly meet those criteria. See id. at 926 (“We have previously held on

several occasions that members of the news media, although not parties to

litigation, can appeal court closure orders or confidentiality orders under the

collateral order doctrine.”).

STANDARD OF REVIEW

On appeal, we are asked to determine whether the press and public

have a First Amendment right of access to sentencing proceedings, and, if so,

whether they are also entitled to receive notice and an opportunity to be

heard prior to closure of sentencing proceedings. “Because this case involves

constitutional and other legal questions, we review the district court’s orders

de novo.” United States v. Brown (In re Times Picayune Publ’g. Corp.), 250

F.3d 907, 913 (5th Cir. 2001). “Specific factual findings of the district court

on the issue are, of course, entitled to review under the clearly erroneous

standard.” Id.

DISCUSSION

As an initial matter, we conclude that this court has jurisdiction over

the case, because it falls within the exception to mootness for questions that

are capable of repetition, yet evading review. We also conclude that the press

and public, including the Chronicle, have a First Amendment right of access

to sentencing proceedings. Finally, we conclude that the district court

deprived the Chronicle of its First Amendment right of access, without due

process, in refusing to give the press and public notice and an opportunity to

be heard before sealing the sentencing proceeding.

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A. Mootness

Despite the fact that Cardenas-Guillen’s sentencing proceeding has

already occurred, it is undisputed that this appeal is not moot. The issues in

this case are not moot because they are “capable of repetition, yet evading

review.” Press-Enterprise Co. v. Super. Ct. (Press-Enterprise II), 478 U.S. 1, 6

(1986); Globe Newspaper Co. v. Super. Ct., 457 U.S. 596, 600 (1982);

Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 563 (1980); United

States v. Edwards, 823 F.2d 111, 114 (5th Cir. 1987). The issues that arise in

this case are capable of repetition because the Chronicle is a prominent

newspaper that seeks to cover major cases, and it is reasonable to expect that

district courts will close other criminal proceedings to the Chronicle in future

cases. See United States v. Criden, 675 F.2d 550, 554 (3d Cir. 1982) (“[I]t is

reasonable to expect that [Philadelphia Newspapers, Inc.], a major newspaper

publisher in the Philadelphia area, will be subjected to similar closure orders

entered by the district courts in this circuit.”). At the same time, these issues

often evade review due to the “short duration” of criminal trials. Richmond

Newspapers, Inc., 448 U.S. at 563.

B. The Chronicle’s First Amendment right of access to the

sentencing proceeding

The first question in this case is whether the press and public,

including the Chronicle, have a First Amendment right of access to a

sentencing proceeding. We conclude that they do. The Supreme Court has

developed a two-part test for determining whether there is a First

Amendment right of access to a particular criminal proceeding: (1) whether

the proceeding has historically been open to the public and press; and (2)

“whether public access plays a significant positive role in the functioning of

the particular process in question.” Press-Enterprise II, 478 U.S. at 8-9; see

also Press-Enterprise Co. v. Super. Ct. (Press-Enterprise I), 464 U.S. 501, 505-

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09 (1984). This test has been referred to as the “experience” and “logic” test.

See Globe Newspaper Co., 457 U.S. at 606 (explaining that “the institutional

value of the open criminal trial is recognized in both logic and experience”);

see also Press-Enterprise II, 478 U.S. at 9 (summarizing the test as

“considerations of experience and logic”).

In applying this test, the Supreme Court has recognized a First

Amendment right of access to various aspects of a criminal prosecution. See

Press-Enterprise II, 478 U.S. at 10 (preliminary hearings as conducted in

California); Press-Enterprise I, 464 U.S. at 505 (jury voir dire); Globe

Newspaper Co., 457 U.S. at 604 (trial); Richmond Newspapers, Inc., 448 U.S.

at 576-77 (trial). The courts of appeals have also recognized a First

Amendment right of access to various proceedings within a criminal

prosecution. See, e.g., United States v. Danovaro, 877 F.2d 583, 589 (7th Cir.

1989) (proceeding at which guilty plea was taken); United States v. Haller,

837 F.2d 84, 86-87 (2d Cir. 1988) (plea hearings); In re Knight Publ’g Co., 743

F.2d 231, 233 (4th Cir. 1984) (trials); United States v. Klepfer (In re Herald

Co.), 734 F.2d 93, 99 (2d Cir. 1984) (pretrial hearing on motion to suppress);

United States v. Chagra, 701 F.2d 354, 363-64 (5th Cir. 1983) (pretrial bond

reduction hearing); United States v. Brooklier, 685 F.2d 1162, 1167-71 (9th

Cir. 1982) (jury voir dire, pretrial hearing on motion to suppress, and

hearing conducted during trial on motion to suppress); Criden, 675 F.2d at

557 (pretrial suppression, due process, and entrapment hearings). But see

Edwards, 823 F.2d at 116-17 (First Amendment right of access does not

attach to mid-trial questioning of jurors about potential misconduct).

1

A sentencing hearing is distinguishable from mid-trial questioning of jurors regarding 1

potential juror misconduct, which was the proceeding at issue in Edwards. The Edwards court

noted that such proceedings were not traditionally open to the public, and were within the

trial court’s discretion to make private because of the possibility of alienating jurors from

counsel and dividing jurors against each other. 823 F.2d at 116-17. In contrast, as we explain

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Although neither the Supreme Court nor this court has specifically

considered whether the First Amendment applies to a sentencing hearing,

the Second, Fourth, Seventh, and Ninth Circuits have done so, and each has

concluded that it does. United States v. Alcantara, 396 F.3d 189, 196-99 (2d

Cir. 2005); United States v. Eppinger, 49 F.3d 1244, 1252-53 (7th Cir. 1995);

United States v. Soussoudis (In re Washington Post Co.), 807 F.2d 383, 389

(4th Cir. 1986) (plea hearings and sentencing proceedings); CBS, Inc. v. U.S.

Dist. Ct., 765 F.2d 823, 825 (9th Cir. 1985) (“The primary justifications for

access to criminal proceedings . . . apply with as much force to postconviction proceedings as to the trial itself.”). Relatedly, courts of appeals

2

have also recognized a First Amendment right of access to documents filed

for use in sentencing proceedings. Washington Post v. Robinson (Robinson),

935 F.2d 282, 288 (D.C. Cir. 1991) (plea agreements); Oregonian Publ’g Co. v.

U.S. Dist. Ct., 920 F.2d 1462, 1466 (9th Cir. 1990) (plea agreements and

related documents); Haller, 837 F.2d at 86 (plea agreements); CBS, Inc., 765

F.2d at 824-25 (defendant’s motion to reduce sentence under Federal Rule of

Criminal Procedure 35 and government’s response); United States v.

Santarelli, 729 F.2d 1388, 1390 (11th Cir. 1984) (“[T]he public has a First

Amendment right to see and hear that which is admitted in evidence in a

public sentencing hearing.”).

We conclude, as have the other courts that have considered this

question, that the public and press have a First Amendment right of access

below, sentencing hearings have been historically open to the press and public. Moreover, the

functional concerns raised in Edwards are inapplicable in a sentencing hearing, especially

because there is no jury. 

See also United States v. Santarelli, 729 F.2d 1388, 1390 (11th Cir. 1984) (explaining

2

that if an ambiguous district court order were “construed as being tantamount to closing the

sentencing hearing,” the order “could well run counter to the constitutional rule of open

judicial proceedings,” but declining to construe the order in that manner). 

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to sentencing proceedings. Indeed, we agree with the Second and Fourth

Circuits that the Supreme Court’s holdings in Globe Newspaper Co. and

Richmond Newspapers, Inc. that there is a First Amendment right of access

to a trial should, logically, already encompass sentencing hearings:

Sentencing may . . . be viewed as within the scope of the criminal

trial itself. Sentencing can occur before the termination of the

trial proceeding, and, even if it occurs in a separate hearing, it

clearly amounts to the culmination of the trial. Moreover, even if

. . . sentencing hearings are not considered a part of the trial

itself, they are surely as much an integral part of a criminal

prosecution as are preliminary probable-cause hearings,

suppression hearings, or bail hearings, all of which have been

held to be subject to the public’s First Amendment right of

access.

Alcantara, 396 F.3d at 196-97 (quoting In re Washington Post Co., 807 F.2d

at 389) (quotation marks omitted)). The First Amendment right of access to

a sentencing proceeding is especially salient in this case, where, as in the

vast majority of criminal cases, there was no trial, but only a guilty plea. Id.

at 199 (“It makes little sense to recognize a right of public access to criminal

courts and then limit that right to the trial phase of a criminal proceeding,

something that occurs in only a small fraction of criminal cases.” (quoting In

re Herald Co., 734 F.2d at 98 (quotation marks omitted)).).

Moreover, applying the experience and logic test set out by the

Supreme Court confirms that the public and press have a First Amendment

right of access to sentencing proceedings. First, sentencing proceedings have

historically been open to the press and public. Alcantara, 396 F.3d at 197

n.7 (listing numerous cases from the nineteenth century “describ[ing]

sentencing proceedings held in open court” and citing secondary sources to

explain that “[h]istorically, [s]entences were often imposed immediately after

the jury returned a guilty verdict in open court”); In re Washington Post Co.,

807 F.2d at 389 (“Sentencings have historically been open to the public

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. . . .”). As the Chronicle points out, “the United States has a rich and proud

tradition of conducting public criminal trials and sentencing proceedings.”

These include numerous high profile cases of defendants who were

considered dangerous : the open trial and sentencing proceeding held in the

3

Southern District of Texas (Houston) for Juan Garcia Abrego, who was a

predecessor of Cardenas-Guillen as the leader of the Gulf Cartel; the open

4 5

sentencing held in the Southern District of New York for Jorge Mario

Paredes-Cordova, who was “designated by the United States Department of

6

Justice as one of the world’s most significant drug kingpins”; the open

7

sentencing proceeding held in the Eastern District of Virginia for Zacarias

We take judicial notice of these examples pursuant to Federal Rule of Evidence 201(b), 3

as these are facts that are “capable of accurate and ready determination by resort to sources

whose accuracy cannot reasonably be questioned.” 

Narcotics Rewards Program: Antonio Ezequiel Cardenas-Guillen, Bureau of Int’l 4

Narcotics & Law Enforcement Affairs, U.S. Dep’t of State, http://www.state.gov/p/inl/narc/

rewards/123682.htm (last visited April 27, 2011) (“Following [Garcia Abrego’s] 1996 arrest by

Mexican authorities and subsequent deportation to the United States, Oscar Malherbe-De

Leon took control of the cartel until his arrest a short time later. He was replaced by Osiel

Cardenas-Guillen, who was arrested in 2003, and extradited to the United States in 2007.”).

U.S. Jury Convicts Mexican on Drug Charges, N.Y. Times, Oct. 17, 1996, available at 5

1996 WLNR 4331922 (“As the verdict was read, Mr. Garcia Abrego, 52, sat impassively, as he

had throughout the four-week trial.”); L.A. Times, Texas-born Drug Lord Gets 11 Life Terms

for Smuggling; Criminal also Must Pay $128 Million in Fines, Baltimore Sun, Feb. 1, 1997,

available at 1997 WLNR 1084726 (“U.S. District Judge Ewing Werlein sentenced Garcia

Abrego, who stood with hands clasped, wearing interpreter’s headphones . . . .”). 

Bruce Golding, Guatemalan Drug Kingpin Cries after Getting 31 Years in the 6

Slammer, N.Y. Post, Apr. 16, 2010, available at http://www.nypost.com/p/news/local/manhat

tan/guatemalan/drug_kingpin_cries_after_Mb7qndOT8kdColDpvObzHI (“Jorge ‘Gordo’

Paredes-Cordova — whose nickname means “Fatso’ in English — shuddered, shook his head

and grabbed a tissue to wipe tears from his eyes after hearing the hefty sentence imposed.”).

Press Release, U.S. Attorney’s Office, Manhattan Federal Jury Finds Cocaine Kingpin 7

Guilty on Narcotics Importation and Distribution Charges (Nov. 6, 2009) available at

http://www.justice.gov/usao/nys/pressreleases/November09/paredescordovajorgemarioverdi

ctpr.pdf.

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Moussaoui, for his participation in the attacks of September 11, 2001; the

8

open sentencing proceeding held in the Southern District of New York for

Mohamed al-‘Owhali, Khalfan Khamis Mohamed, Mohamed Odeh and

Wadih el-Hage, for their roles in the 1998 bomb attacks on American

embassies in Kenya and Tanzania; the open trial and sentencing proceeding

9

held in the Southern District of New York for Ramzi Yousef, for his role in

the 1993 bombing of the World Trade Center; the open trial held in the

10

Northern District of Illinois for Al Capone; the open sentencing proceeding

11

First U.S. Trial of 9/11 Case Was Full of Surprises, Associated Press, available at 8

http://www.msnbc.msn.com/id/34001021/ns/us_news-security/ (last visited Feb. 28, 2011)

(describing six-week sentencing trial, including Moussaoui’s demeanor and occasional

outbursts, and quoting the lead prosecutor: “A valuable part of the Moussaoui trial was that

we got an unvarnished, public view of this guy . . . of what we’re up against.” (alterations in

original)); Neil A. Lewis, One Last Appearance, and Outburst, From Moussaoui, N.Y. Times,

May 5, 2006, available at 2006 WLNR 7711531 (“Judge Brinkema was clearly angered that

when the jury spared Mr. Moussaoui's life on Wednesday, he exulted, ‘America, you lost,’ and

said he had won.”).

Elizabeth Neuffer, Four Get Life for Embassy Attacks, Boston Globe, Oct. 19, 2001, 9

available at 2001 WLNR 2230485 (“In a session fraught with emotion — and carried out

under heightened security — Judge Leonard Sands levied the same stiff sentences on all men

although two had been eligible for shorter terms. . . . [T]he shadow of the [September 11, 2001]

terrorist attack on New York and Washington . . . hung over the court session, both literally

and figuratively. The courthouse was wreathed in the acrid stench still emanating from

ground zero. Gun-toting US marshals with bomb-sniffing dogs, signs of New York’s increased

security awareness, stood watch on the courthouse steps.”). 

See Benjamin Weiser, Mastermind Gets Life for Bombing of Trade Center, N.Y. 10

Times, Jan. 9, 1998, available at 1998 WLNR 2795240 (“Mr. Yousef wore a dark gray suit and

a new growth of beard. He strode to the lectern when offered a chance to speak by the judge,

and began to attack the United States and Israel, the peace process in the Middle East and

the ‘Jewish lobby,’ which he said paid bribes to American officials to win their influence.”).

See Meyer Berger, Capone Convicted of Dodging Taxes; May Get 17 Years, N.Y. 11

Times, Oct. 17, 1931, available at http://www.nytimes.com/learning/general/onthisday/big/

1017.html (describing Capone’s demeanor after the jury went to deliberate: “Capone, looking

like a head barber off to meet his best girl, stood in the corridor after the jury went out. He

was smiling, but the smile seemed the equivalent of the quavery music of the whistler passing

the graveyard,” as well as Capone’s demeanor upon hearing the jury verdict: “He kept grinning

at all and sundry in the court room, his bulky figure in a screaming green suit (one of the $135

ones) drawing all eyes toward him.”).

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held in the Eastern District of New York for John Gotti; and the open trial

12

and sentencing of Timothy McVeigh for his role in the 1995 bombing of the

Alfred P. Murrah Federal Building in Oklahoma City.

13

Second, public access plays a “significant positive role,” PressEnterprise II, 478 U.S. at 8-9, in a sentencing hearing. In particular, the

Supreme Court has recognized several interrelated ways in which openness

is beneficial in a criminal trial. See Richmond Newspapers, Inc., 448 U.S. at

593-97. The recognized benefits of having open trials also apply in the

context of sentencing proceedings.

To begin with,“[t]he knowledge that every criminal trial is subject to

contemporaneous review in the forum of public opinion is an effective

restraint on possible abuse of judicial power . . . .” Richmond Newspapers,

Inc., 448 U.S. at 596 (quoting In re Oliver, 333 U.S. 257, 270 (1948))

(quotation marks omitted); see also Globe Newspaper Co., 457 U.S. at 606

(“[I]n the broadest terms, public access to criminal trials permits the public

to participate in and serve as a check upon the judicial process — an

See Arnold H. Lubasch, Gotti Sentenced to Life in Prison Without the Possibility of 12

Parole, N.Y. Times, June 24, 1992, available at 1992 WLNR 3331979 (“Judge I. Leo Glasser

sentenced the convicted boss of the Gambino crime family in a courtroom so packed that

James M. Fox, the head of the New York office of the F.B.I., was wedged next to Joseph

DeCicco, a reputed Gambino associate.”). 

See Michael Fleeman, McVeigh Team Rips Witness, Rests Case, New Orleans Times

13

Picayune, May 29, 1997, available at 1997 WLNR 1109708 (“After the last piece of defense

evidence was introduced, McVeigh whispered to [one of his attorneys], then sat cross-legged

at the defense table, his hands tightly clasped in front of his chin.”); Peter G. Chronis and

Howard Pankratz, Tearful Parents Beg for Son’s Life as Timothy McVeigh’s Fate Goes to Jury

Today, The Denver Post, June 12, 1997, available at 1997 WLNR 542338 (describing “tearful

pleas from [McVeigh’s] parents to spare him” from the death penalty, and adding that “[a]s

[his mother] choked back tears, McVeigh looked flushed, clasping his hands tightly together

against the lower part of his face.”).

.

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essential component in our structure of self-government.”). The need for

such a restraint is also present in the sentencing context. “The presence of

the public operates to check any temptation that might be felt by either the

prosecutor or the court . . . to seek or impose an arbitrary or disproportionate

sentence.” In re Washington Post Co., 807 F.2d at 389. Indeed, the fact that

there is no jury at the sentencing proceeding, in contrast to jury trials,

heightens the need for public access. Cf. Press-Enterprise II, 478 U.S. at 12-

13 (“[T]he absence of a jury, long recognized as ‘an inestimable safeguard

against the corrupt or overzealous prosecutor and against the compliant,

biased, or eccentric judge,’ . . . makes the importance of public access to a

preliminary hearing even more significant.” (quoting Duncan v. Louisiana,

391 U.S. 145, 156 (1968)).).

Relatedly, openness in a trial builds public confidence in the criminal

justice system because members of the public can observe whether justice is

being carried out in adjudicating guilt or innocence. Richmond Newspapers,

Inc., 448 U.S. at 595 (“Open trials assure the public that procedural rights

are respected, and that justice is afforded equally. Closed trials breed

suspicion of prejudice and arbitrariness, which in turn spawns disrespect for

law.”). Likewise, openness in the sentencing context allows the public to

observe whether the defendant is being justly sentenced, especially where

the court, rather than a jury, is determining the sentence. Eppinger, 49 F.3d

at 1253 (“The public must have the opportunity to observe and criticize the

judiciary in the operation of its duties. In sentencing, unlike other aspects of

criminal proceedings, it is the distinct province of the court to determine

what constitutes [a] proper sentence.” (quoting United States v. Carpentier,

526 F. Supp. 292, 295 (E.D.N.Y. 1981))); In re Washington Post Co., 807 F.2d

at 389.

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Similarly, openness of a proceeding also promotes more accurate factfinding, either because witnesses are more hesitant to commit perjury in a

proceeding open to the public, or because “key witnesses unknown to the

parties” may learn about a trial if it is public. Richmond Newspapers, Inc.,

448 U.S. at 596-97. As there may well be witnesses and contested issues of

fact in a sentencing proceeding, see Alcantara, 396 F.3d at 198 (explaining

that in both trials and sentencing proceedings, “[t]he defendant . . . can

present evidence, call witnesses, and cross-examine government witnesses”),

this rationale applies in a sentencing proceeding as much as it applies in a

trial.

Relatedly, the Supreme Court has explained that “[u]nderlying the

First Amendment right of access to criminal trials is the common

understanding that ‘a major purpose of that Amendment was to protect the

free discussion of governmental affairs,’” Globe Newspaper Co., 457 U.S. at

604 (quoting Mills v. Alabama, 84 U.S. 214, 218 (1966)), and “to ensure that

this constitutionally protected ‘discussion of governmental affairs’ is an

informed one,” id. at 605. This rationale also applies in the sentencing

context. For example, allowing the public “to see the application of

sentencing laws in person is important to an informed public debate over

these laws.” Alcantara, 396 F.3d at 199 (citing Kate Stith & José A.

Cabranes, Fear of Judging: Sentencing Guidelines in the Federal Courts 85

(1998)).

Finally, there is a “community therapeutic value” to having an open

proceeding, because of the concerns and emotions of members of the public

who have been affected by a crime or crimes. Richmond Newspapers, Inc.,

448 U.S. at 570. “When a shocking crime occurs, a community reaction of

outrage and public protest often follows. Thereafter the open processes of

justice serve an important prophylactic purpose, providing an outlet for

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community concern, hostility, and emotion.” Id. at 571 (citation omitted);

see, e.g., Mark Eddy et al., Guilty on Every Count, Denver Post, June 3, 1997,

available at http://extras.denverpost.com/ bomb/bombv1.htm (describing the

reaction of survivors of the 1995 Oklahoma City bombing upon hearing that

the jury had found Timothy McVeigh guilty on all counts: “survivors rushed

into the hall outside the courtroom where they cried, hugged and tried to

console each other as this chapter in the bombing tragedy drew to a close”).

This rationale applies as strongly in a sentencing proceeding as it does in a

trial. Alcantara, 396 F.3d at 198; see, e.g., Benjamin Weiser, Mastermind

Gets Life for Bombing of Trade Center, N.Y. Times, Jan. 9, 1998, available at

1998 WLNR 2795240 (“Several victims of the [1993 World Trade Center]

blast attended the [sentencing proceeding of Ramzi Yousef]. One, Charles

Maikish, a former [World] Trade Center official, nearly broke down as he

addressed the court on behalf of the families, reading a list of the names of

each victim who had died in the bombing. Patricia Smith, whose pregnant

daughter-in-law, Monica Smith, was killed in the explosion, did not speak in

court but glared at Mr. Yousef’s back as he stood just a few feet in front of

her, addressing the judge. Later, Ms. Smith said she wanted to hit him with

her cane.”).

In sum, we conclude, as have the other courts of appeals that have

addressed this issue, that the press and public have a First Amendment

right of access to sentencing proceedings.

14

 We do not, however, call into question “the practice of keeping presentence reports

14

confidential,” CBS, Inc., 765 F.2d at 826, which is a distinct issue for multiple reasons. First,

incontrastto sentencing proceedings,“[presentence] reports themselves have historically been

treated as confidential . . . .” United States v. Huckaby, 43 F.3d 135, 138 (5th Cir. 1995). 

Moreover, unlike with sentencing proceedings, “[t]he Federal Rules of Criminal Procedure

expressly provide for limited [public] access to information contained in presentence reports.” 

CBS, Inc., 765 F.2d at 826. 

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C. Notice and an opportunity to be heard

Because there is a First Amendment right of access to sentencing

proceedings, there is a presumption that they should remain open, absent

specific, substantive findings made by the district court that closure is

necessary to protect higher values and is narrowly tailored to serve such

goals:

[T]he presumption [of openness] may be overcome only by an

overriding interest based on findings that closure is essential to

preserve higher values and is narrowly tailored to serve that

interest. The interest is to be articulated along with findings

specific enough that a reviewing court can determine whether

the closure order was properly entered.

Press-Enterprise II, 478 U.S. at 9-10 (quoting Press-Enterprise I, 464 U.S. at

510) (quotation marks omitted). In making its findings, the court must

consider any “reasonable alternatives to closure.” Press-Enterprise II, 478

U.S. at 14 (citing Press-Enterprise I, 464 U.S. at 510; Richmond Newspapers,

Inc., 448 U.S. at 581); see also Edwards, 823 F.2d at 119 (“Press [Enterprise]

II requires, if closure of a presumptively open proceeding is to withstand a

[F]irst [A]mendment challenge, that the court make specific, on-the-record,

factfindings demonstrating that a substantial probability exists that an

interest of a higher value will be prejudiced and that no reasonable

alternatives to closure will adequately protect that interest.”). If the court

decides to close a proceeding, it must then make the “transcript of the closed

proceedings available within a reasonable time . . . .” Press-Enterprise I, 464

U.S. at 512.

In this case, we do not reach the question of whether the district

court’s decision to close Cardenas-Guillen’s sentencing proceeding was

substantively correct. The Chronicle does not challenge this. Rather, the

Chronicle is challenging the district court’s refusal to follow two procedural

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requirements before closing the sentencing of Cardenas-Guillen: (1) to give

public notice of contemplated closure of the proceeding, and (2) to give

interested parties, such as the Chronicle, an opportunity to be heard before

the sentencing proceeding was closed.

Those procedural requirements stem from the Supreme Court’s dictate

that trial courts should make determinations about closure “on a case-bycase basis.” Globe Newspaper Co., 457 U.S. at 609. The Court explained

that “[o]f course, for a case-by-case approach to be meaningful,

representatives of the press and general public ‘must be given an opportunity

to be heard on the question of their exclusion.’” Id. at 609 n.25 (quoting

Gannett Co. v. DePasquale, 443 U.S. 368, 401 (1979) (Powell, J., concurring));

see also Edwards, 823 F.2d at 119 (“In requiring a case-by-case resolution of

the issues concerning closure of presumptively open proceedings, the Globe

Court noted that, for this approach to be effective, ‘the press and general

public must be given an opportunity to be heard on the question of their

exclusion.’” (quoting Globe Newspaper Co., 457 U.S. at 609 n.25)).

The courts of appeals that have addressed the question of whether

notice and an opportunity to be heard must be given before closure of a

proceeding or sealing of documents to which there is a First Amendment

right of access, have uniformly required adherence to such procedural

safeguards. See, e.g., Alcantara, 396 F.3d at 200 (“[A] motion for courtroom

closure should be docketed in the public docket files . . . . Entries on the

docket should be made promptly, normally on the day the pertinent event

occurs . . . . We think this type of general public notice suffices to afford an

adequate opportunity for challenge to courtroom closure.” (quoting In re

Herald Co., 734 F.2d at 102-03)); Phoenix Newspapers, Inc. v. U.S. Dist. Ct.,

156 F.3d 940, 949 (9th Cir. 1998) (“[I]f a court contemplates sealing a

document or transcript, it must provide sufficient notice to the public and

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press to afford them the opportunity to object or offer alternatives. If

objections are made, a hearing on the objections must be held as soon as

possible.”); Oregonian Publ’g Co., 920 F.2d at 1466 (9th Cir. 1998) (affirming

previous holding that “those excluded from the proceeding must be afforded a

reasonable opportunity to state their objections” (citing Brooklier, 685 F.2d

at 1167-68; In re Washington Post Co., 807 F.2d at 390-91)); United States v.

Valenti, 987 F.2d 708, 713 (11th Cir. 1993) (explaining that giving “notice

and an opportunity to be heard on a proposed closure” is required prior to

closing a “historically open process where public access plays a significant

role”); Robinson, 935 F.2d at 289 (explaining that before a plea agreement is

sealed, “(1) [t]he government must file a written motion to seal the plea

agreement and notice of that motion must be entered in the public docket;

[and] (2) [t]he trial court must promptly allow interested persons an

opportunity to be heard before ruling on the motion and entering the sealing

order”); In re Washington Post Co., 807 F.2d at 390 (holding that before

making specific findings in conjunction with an order to close a proceeding or

seal documents, the district court must docket closure motions “‘reasonably

in advance of their disposition’” in order to give the press and public notice

and then “provide interested persons ‘an opportunity to object to the request

before the court ma[kes] its decision’” (quoting In re Knight Publ’g Co., 743

F.2d at 234-35)); Criden, 675 F.2d at 559-60 (holding that in order to provide

notice, “[t]he district courts should take whatever steps are necessary to

ensure that the docket entries are made a reasonable time before the closure

motion is acted upon” and explaining that doing so would allow “the public

and press . . . to take timely action if they wished”). Furthermore, the

Department of Justice has issued “guidelines [that] generally prohibit a

government attorney from consenting to[, inter alia,] a closed plea or

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sentencing proceeding when the public has not been given notice of the

proposed closure.” Alcantara, 396 F.3d at 200 n.9 (citing 28 C.F.R. § 50.9).

These procedural requirements are essential to safeguarding the First

Amendment right of access to sentencing proceedings. Given the weight of

the right of access, we agree that courts must provide the press and public

with notice and an opportunity to be heard before closing a sentencing

proceeding, because “it seems entirely inadequate to leave the vindication

15

of a First Amendment right to the fortuitous presence in the courtroom of a

public spirited citizen willing to complain about closure . . . .” Alcantara, 396

F.3d at 199-200 (quoting In re Herald Co., 734 F.2d at 102); see also Criden,

675 F.2d at 559 (“The press should not be expected to ‘camp out’ in the

hallway in order to ascertain whether evidentiary proceedings are being

conducted in chambers.”). These requirements are “not mere punctilios, to

be observed when convenient.” Phoenix Newspapers, 156 F.3d at 951. The

trial court cannot properly weigh the First Amendment right of access

against the interests served by closure, nor can it fully consider alternatives

to closure, without providing notice and an opportunity to be heard to the

press and public:

All too often, parties to the litigation are either indifferent or

antipathetic to disclosure requests. This is to be expected: it is

not their charge to represent the rights of others. However,

balancing interests cannot be performed in a vacuum. Thus,

providing the public notice and an opportunity to be heard

ensures that the trial court will have a true opportunity to weigh

the legitimate concerns of all those affected by a closure decision.

We do not speculate on the possibility of whether, in a future case, some circumstance 15

might arise that could justify a trial court's deciding to give no notice or opportunity to be

heard, of any kind, before closing a sentencing proceeding. As we explain below, the

circumstances of this case were not sufficient to justify such a decision. Any decision to deny

all notice and opportunity to be heard would have to be justified under the balancing test of

Mathews v. Eldridge, 424 U.S. 319, 335 (1976), which we refer to later in this opinion.

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Id.

The importance of these requirements, however, does not preclude a

trial court from choosing among various options, given the circumstances

and interests involved in a particular case, to determine how it will provide

notice and an opportunity to be heard. For example, in giving the press and

public notice that a proceeding may be closed, the trial court may choose to

docket the motion. See, e.g., Alcantara, 396 F.3d at 200; Robinson, 935 F.2d

at 288. The trial court may do that, or it may decide that security or other

concerns warrant declining to reveal what kind of proceeding is going to be

closed and simply place a notice on the docket that there is a motion to close

a proceeding, leaving the parties to submit arguments regarding the various

proceedings that could hypothetically be closed. Relatedly, the trial court

may decide to disclose all, some, or none of what is contained in the motion to

close. Cf. Robinson, 935 F.2d at 290 (“We fail to see anything in this case

that would have precluded the government from filing a written motion to

seal (notice of which would be entered on the public docket), with the plea

agreement attached, and then asking the court to seal both the motion and

the plea agreement pending final disposition. This would have protected the

secrecy of the plea agreement until the court ruled on the motion after

hearing from interested parties.”); In re Washington Post Co., 807 F.2d at

391 (“A district court considering a motion for closure of hearings for

national security reasons need not divulge the facts of the situation to

persons seeking access to the hearings.”).

Similarly, in giving interested members of the press and public an

opportunity to be heard, the trial court can choose among various options to

determine how to do so in a particular case. At the very least, the trial court

can permit interested parties to submit briefs on whether a proceeding

should be closed. In addition, the trial court may decide to hold a hearing at

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which parties can orally argue before the court. Finally, the trial court “may

file its statement of the reasons for its decision under seal” if it deems that

doing so is necessary. In re Washington Post Co., 807 F.2d at 391. This court

can, of course, still review a sealed statement of reasons.

Of course, the fact that a trial court may choose among various options

does not mean that it should automatically choose the most minimal options

available. “[I]dentification of the specific dictates of due process generally

requires consideration of three distinct factors: First, the private interest

that will be affected by the official action; second, the risk of an erroneous

deprivation of such interest through the procedures used, and the probable

value, if any, of additional or substitute procedural safeguards; and finally,

the Government’s interest, including the function involved and the fiscal and

administrative burdens that the additional or substitute procedural

requirement would entail.” Mathews v. Eldridge, 424 U.S. 319, 335 (1976).

Trial courts should weigh these factors in relation to the unique facts of the

case where closure is at issue. Cf. United States v. Abuhamra, 389 F.3d 309,

318-28 (2d Cir. 2004) (applying the Mathews v. Eldridge test by weighing the

defendant’s interest in having notice and an opportunity to be heard, as well

as the public and the defendant’s shared interest in open criminal

proceedings, against the government’s interest in protecting the identity and

safety of confidential witnesses, and concluding that “ex parte submissions in

opposition to bail release . . . should generally not be received or considered

by district courts”). In this appeal, we need not examine the factors in detail,

because the district court gave the press and public no notice, and no

opportunity to be heard, whatsoever. Regardless of exactly what

arrangements would have been sufficient, the district court’s actions did not

provide even a minimal level of due process before closing the sentencing

proceeding.

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The government does not dispute that notice and an opportunity to be

heard should generally be afforded to the press and public before the closure

of a proceeding to which a First Amendment right of access attaches.

Instead, the government advances two alternative arguments: (1) that the

security concerns of this case were such that the district court was excused

from giving notice and an opportunity to be heard; and (2) in the alternative,

that the district court essentially gave the Chronicle an opportunity to be

heard because it took into account the Chronicle’s February 9, 2010 motion

to intervene and the Chronicle’s October 30, 2009 letter, which was attached

to the motion to intervene, when it closed the sentencing proceeding. We

address each argument in turn.

First, we conclude that the security concerns raised by the government

in this case did not justify the district court’s decision not to give the press

and public any notice or opportunity to be heard prior to closure. At the

sentencing proceeding, the district court gave two rationales for its decision

to seal the government’s motion to close the sentencing proceeding: “failure

to seal the United States’ motion to seal will result in a substantial

probability that the lives and safety of persons will be placed in danger and

that ongoing investigations will be jeopardized.” The government contends

that holding a preclosure hearing would have endangered Cardenas-Guillen,

courthouse and United States Marshals Service personnel, and members of

the public in the courthouse, because of the possibility of an attack on the

courthouse due to Cardenas-Guillen’s presence during such a hearing, as

well as the possibility of attack while transporting Cardenas-Guillen to and

from the courthouse. While this concern is understandable, it did not

preclude giving notice and an opportunity to be heard. For instance, the

district court could have simply given notice that the government had filed a

sealed motion to close the upcoming sentencing proceeding, and given the

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press and public an opportunity to be heard by inviting any interested

parties to write and express their opposition. Anyone who wanted to see the

government’s sealed motion before filing an opposing motion could also have

filed a motion to do so, which the district court could have granted or denied

in the exercise of its sound discretion.

Neither did the district court’s concern about jeopardizing ongoing

investigations preclude it from giving notice and an opportunity to be heard

in this case. The district court noted at sentencing that pursuant to the

government’s request, it would not docket the proceeding or make the

transcript available until the United States Marshals Service informed the

district court “that the . . . possibility of substantial danger or substantial

possibility of danger imminent — the public being placed in imminent

danger has passed . . . .” And, as the government noted in its brief, the

docket shows (1) that the proceeding was docketed within hours of the end of

the hearing; (2) that the hearing and transcript were made available to the

public; and (3) that the Chronicle ordered a copy of the transcript, which was

completed by the next day. The fact that the government requested for the

sentencing to occur, and that it did not object to the docketing of the

proceeding within hours of the hearing and the release of the transcript the

next day, shows that at some point before the sentencing proceeding, the

government had resolved any concerns it had regarding ongoing

investigations. After the government resolved those concerns, instead of

immediately holding the sentencing proceeding, the district court could

instead have given notice and an opportunity to be heard on whether the

sentencing should be closed. It would have been no more harmful with

regard to ongoing investigations for the district court to take these steps —

thereby providing notice and an opportunity to be heard — than to do what it

actually did.

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In sum, the government’s contention that security concerns justified

the lack of notice and an opportunity to be heard prior to closure of the

sentencing proceedings is unpersuasive. The district court had multiple

options available to it for providing notice and an opportunity to be heard

prior to closure, while also accommodating the security concerns raised by

the government.

16

The government argues in the alternative that even if the district court

was required to give notice and an opportunity to be heard before closing the

sentencing proceeding, the district court essentially gave the Chronicle such

an opportunity to be heard. Specifically, the government contends that the

district court was aware of, and stated that it had considered, the Chronicle’s

February 9, 2010 motion to intervene and the letter from the Chronicle dated

October 30, 2009, which was attached to the motion to intervene. Thus, the

government concludes, the district court was not required to “hold a hearing

and write redundant findings of fact that merely reiterate truisms.” Gov. Br.

25, 37 (quoting Edwards, 823 F.2d at 119 (quotation marks omitted)).

We are not persuaded by this argument. The February 9, 2010 motion

filed by the Chronicle did not deal with closure of any proceedings. Instead,

it contained a motion to intervene and arguments against continued sealing

of documents. The Chronicle did not have notice of what was happening: it

did not know that there would be an upcoming sentencing hearing or any

other proceeding. The arguments in its February 9, 2010 motion dealt with

what the Chronicle knew was happening — the continued sealing of

We note that in its brief, the government cited to but did not explicitly discuss

16

another security concern, which was outlined in the government’s sealed filings to the district

court. We conclude that there are options among those we have discussed here that would

have adequately addressed that concern while also providing the public and press with notice

and an opportunity to be heard. Thus, that security concern does not justify the failure to

provide notice and an opportunity to be heard.

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documents, not the closure of a sentencing hearing. Even the October 30,

2009 letter only makes a general argument that notice should be given if

closure of a proceeding was contemplated at some point in the future. The

Chronicle had no notice and was not given the opportunity to make

arguments addressing precedents regarding access to and closure of

sentencing proceedings; to argue that openness is important in proceedings

in this particular case, a case of great public importance; or to suggest more

narrowly tailored alternatives to closure. Moreover, it would be perverse to

hold that the district court fulfilled its obligation to provide notice and an

opportunity to be heard in this case because the Chronicle’s reporter

“‘camp[ed] out’ in the hallway,” Criden, 675 F.2d at 559, and its attorneys

sent the court anticipatory requests asking for notice and an opportunity to

be heard if a proceeding were to be closed. The court is not relieved from its

duty to adhere to due process requirements, in order to safeguard the First

Amendment right of access, by the fact that a newspaper, out of an

abundance of caution, took some steps to attempt to secure that right.

We conclude that the district court did not give the Chronicle notice

and an opportunity to be heard before closing the sentencing proceeding.

Thus, the district court deprived the Chronicle of its First Amendment right

without following the proper procedures — i.e., without due process.

CONCLUSION

We conclude (1) that this court has jurisdiction over the case, because

it falls within the exception to mootness for issues that are capable of

repetition, yet evading review; (2) that the press and the public have a First

Amendment right of access to a sentencing proceeding; and (3) that the

district court deprived the Chronicle of its First Amendment right of access

without due process in refusing to give the press and public, including the

Chronicle, notice and an opportunity to be heard before closing the

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sentencing proceeding. Because the sentencing of Cardenas-Guillen has

already occurred, we simply REVERSE the district court’s orders of

February 24, 2010 (as amended by the March 2, 2010 order) and of February

26, 2010, denying the Chronicle’s requests for notice and an opportunity to

be heard prior to closure, as well as the district court’s February 24, 2010

order (as amended by the March 2, 2010 order) denying the Chronicle’s

motion to open the sentencing proceeding. See Press-Enterprise II, 478 U.S.

at 15 (reversing because the lower court “failed to consider the First

Amendment right of access to criminal proceedings”); Richmond Newspapers,

Inc., 448 U.S. at 580-81 (reversing where “trial judge made no findings to

support closure; no inquiry was made as to whether alternative solutions

would have met the need to ensure fairness; there was no recognition of any

right under the Constitution for the public or press to attend the trial”). We

do not decide whether the district court’s decision to close the sentencing

proceeding was substantively wrong, but we reverse the order denying the

motion to open the sentencing proceeding because the district court did not

follow the required procedures before rendering its decision to close. See In

re Washington Post Co., 807 F.2d at 393.

It is so ordered.

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