1994 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-25-1994

USA v. Antar

Precedential or Non-Precedential:

Docket 93-5732

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Recommended Citation

"USA v. Antar" (1994). 1994 Decisions. Paper 165.

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 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 

 Nos. 93-5732; 93-5733; 94-5006 

 

 UNITED STATES OF AMERICA 

 

v. 

 EDDIE ANTAR 

 

 (Newark New Jersey District Criminal No. 92-cr-00347-1) 

 MITCHELL ANTAR 

 (Newark New Jersey District Criminal No. 92-cr-00347-2) 

 ALLEN ANTAR 

 

 (Newark New Jersey District Criminal No. 92-cr-00347-3) 

 EDDIE GINDI 

 (Newark New Jersey District Criminal No. 92-cr-00347-4) 

 Newark Morning Ledger Co., 

 publisher of The Star-Ledger 

 Appellant in 93-5732 

 Associated Press, 

 Appellant in 93-5733 

 New Jersey Press Association,* 

 *(Intervenor in D.C.) 

 Appellant in 94-5006 

 

 On Appeal From the United States District Court 

 For the District of New Jersey 

 (D.C. Criminal Action Nos. 92-cr-00347-1; -2; -3; -4) 
 

 Argued: March 24, 1994 

 Before: HUTCHINSON, ROTH and ROSENN, Circuit Judges

 (Opinion Filed October 25, 1994) 

 

 

Michael Chertoff (Argued) 

United States Attorney 

Jayne K. Blumberg 

Marc N. Garber 

Eric L. Muller 

Edna B. Axelrod 

Assistant United States Attorneys 

Office of United States Attorney 

970 Broad Street, Room 502 

Newark, NJ 07102 

 Attorneys for Appellee 

Gerald Krovatin, Esquire 

Lowenstein, Sandler, Kohl, Fisher & Boylan 

65 Livingston Avenue 

Roseland, NJ 07068 

 Attorney for Allen Antar 

Donald A. Robinson, Esquire (Argued) 

Steven L. Lapidus, Esquire 

Keith J. Miller, Esquire 

Robinson, St. John & Wayne 

Two Penn Plaza East 

Newark, NJ 07105 

 Attorneys for Newark Morning Ledger Co. 

Thomas J. Cafferty, Esquire (Argued) 

Arlene M. Turinchak Esquire 

McGimpsey & Cafferty 

285 Davidson Avenue 

Somerset, NJ 08873 

 Attorneys for New Jersey Press Association 

Richard N. Winfield, Esquire 

David A. Shulz, Esquire (Argued) 

Thomas J. Lilly Esquire 

Rogers & Wells 
200 Park Avenue 

New York, NY 10166 
Richard P. O'Leary, Esquire 

McCarter & English 

Four Gateway Center, 100 Mulberry Street 

P. O. Box 652 

Newark, NJ 07101-0652 

 Attorneys for The Associated Press 

 

 OPINION OF THE COURT 

 

ROTH, Circuit Judge: 

 We are confronted in this case with a tension between 

two issues of critical constitutional concern: the need to 

protect the confidentiality of jurors' deliberations while, at 

the same time, guaranteeing the right of the press and the public 

to have access to court proceedings. We conclude that under the 

circumstances presented here, the district court improperly 

sealed the transcript of the jury voir dire and then upon 

unsealing it, placed certain improper restrictions on the use of 

the juror-identifying information. We will, therefore, reverse 

the order of the district court sealing the record, and we will 

reverse in part and affirm in part the restrictions imposed by 

the district court on the conduct of juror interviews. 

 This appeal arises from several high-profile criminal 

prosecutions for securities fraud, RICO conspiracy, mail fraud, 

and related charges. Appellants, the Associated Press, the New 

Jersey Press Association, and the Newark Morning Ledger Company 
(collectively, "the press"), challenge the actions of the 

district court first in sealing the transcript of the jury voir 

dire at the end of the trial and, later, in releasing the 

transcript with restrictions placed upon its use. The 

restrictions apply to anyone coming into possession of juroridentifying information from the transcript; they circumscribe 

the substance and extent of any questioning of the former Antar

jurors. 

 We find that the sealing of the transcript was 

accomplished prematurely. It was done without adequate notice, 

without a hearing, and without factual findings being placed on 

the record. We further find that the restrictions imposed on the 

use of juror information at the time of the unsealing were not 

supported by an actual or potential threat either of juror 

harassment or of invasion of the deliberative process as it was 

taking place. 

 We do not minimize the importance of confidential jury 

deliberations or of the need to protect former jurors from 

harassment. Nor do we intend to suggest that the restrictions 

which we find to have been improperly imposed here may not be 

permissible in some future case. In order to restrict the right 

of access, however, a court must carefully articulate specific 

and tangible, rather than vague and indeterminate, threats to the 

values which the court finds override the right of access. 
 There are, of course, instances when the jurors' 

identities should be concealed in order to protect against 

tampering or coercion or threats. See, e.g., In re Globe 

Newspaper Co., 920 F.2d 88, 97 (1st Cir. 1990). Moreover, 

harassment of jurors by the press after the completion of a trial 

may adversely affect the willingness of citizens to freely 

participate in the jury system. This court has not yet, however, 

faced the question of restricting access to court proceedings or 

to transcripts of those proceedings in order to protect the 

jurors' from post-trial contact with the press. 

 Under the circumstances presented in this case, we 

conclude that the precedent of Press Enterprise Co. v. Superior 

Court of California, 464 U.S. 501, 104 S.Ct. 819 (1984) ("PressEnterprise I"), is directly controlling. We hold, therefore, 

that the presumptive right of access applied to the voir dire 

proceedings as they were recorded in the trial transcript.1 

Applying the requirement that detailed findings of the need for 

restrictions be made before any restriction is imposed, we find 

that the court's initial order, sealing the transcript, violated 

procedural and substantive aspects of the press's right of access 

to the voir dire transcript.2 The subsequent release of the 

 

1. The parties agree that there was a contemporaneous right of 

access to the courtroom at the time of the jury voir dire. 

2. To the extent that Judge Rosenn in his thoughtful concurring 

opinion differentiates "specific" from "detailed", we are not 

persuaded that the difference is significant. Our conclusions, 

as are his, and the discussion that follows from our conclusions 

are based on the precedent of Press-Enterprises I and its 
transcript was not a cure for this violation of access. 

Moreover, certain of the restrictions placed upon the use of the 

information in the transcript, contained in the court's second 

order unsealing the transcript, were too broad in view of the 

lack of any specific recorded findings of actual or imminent 

threat of juror harassment. 

 I. 

 A. The Trial and the Sealing of the Transcript

 The six week trial in this criminal action began on 

June 1, 1993. The defendants, founders of a well-known consumer 

electronics chain, Crazy Eddie's, were accused of various corrupt 

business practices, including a scheme of securities fraud. 

 Because of pre-trial publicity, the district court 

requested a large pool of potential jurors. As a result, on the 

first day of trial, there were not enough seats in the courtroom. 

Before starting the voir dire examination of the potential 

jurors, the court asked that members of the press leave the 

courtroom in order to free up additional seats. This appears to 

have been a request rather than an order. The press voluntarily 

complied. The voir dire continued for two additional days. 

(..continued) 

progeny, including United States v. Raffoul, 826 F.2d 218 (3d 

Cir. 1987) and United States v. Simone, 14 F.3d 833 (3d Cir. 

1994). We also share with Judge Rosenn his concern about the 

burden we place upon the district courts. However, we believe 

that what we have required is consistent with Press Enterprises I

and its progeny. 
During that period, the members of the petit jury stated their 

names and hometowns on the record. Although the voir dire was an 

"open" proceeding, in that the courtroom was not closed to nonparticipants, the absence of the members of the press at the 

court's request prevented them from learning the identities of 

the Antar jurors. 

 The press was present during the remainder of the 

trial. Toward the end of the trial, on the day that summations 

were given and the jury retired, Richard P. O'Leary, counsel for 

the Associated Press ("AP"), sent a letter to the court, 

requesting the names and addresses of the jurors. Joint Appendix 

("App.") at 203-04. O'Leary sent the letter because the AP hoped 

to interview the jurors after the verdict. The combination of 

the press's absence from the voir dire and the fact that the 

record of the proceedings had not yet been transcribed left the 

press in a curious position. Though the names of the jurors were 

public information and anyone present during the voir dire might 

know their identities, the press did not. In his letter, O'Leary 

noted the news organization's interest in speaking to members of 

the jury after the conclusion of the trial. He attempted to ease 

any concerns the court might have had about potential contacts 

with the jurors prior to the conclusion of deliberations by 

stating: "As an officer of the court, I represent that I would 

not disclose this information to the AP until after the verdict 

has been returned." Id. 
 The court's response to O'Leary's request was to 

immediately seal the transcript of the voir dire proceedings and 

other portions of the public record containing juror identifying 

information. This was done sua sponte: no hearing was held and 

no findings were made.3 

 B. The Post-Sealing Hearings

 Four days later, on July 20, 1993, the jury returned 

its verdicts, convicting Eddie Antar and Mitchell Antar of 

multiple counts of securities fraud. The AP then moved to 

intervene in order to obtain the release of the jurors' names and 

addresses. In the meantime, the district court had not dismissed 

the jury because of a pending civil forfeiture action against the 

Antars. However, on August 2, two days before the jury was to 

reassemble, the government moved to dismiss the forfeiture 

action. The court granted the dismissal and agreed that it would 

discharge the jurors by telephone, rather than requiring them to 

return to the courthouse. Because the jurors were not physically 

present, the press were unable to approach them at the conclusion 

of their jury service. 

 At the same time, the court raised the issue of the 

AP's motion to intervene. Counsel for the AP reiterated the 

 

3. The only documentation of the closure appears in the district 

court's docket sheet. Entry #94 reads in part: "Ordered minutes 

of 6-3-93 and transcript sealed until further order of court. . . 

. F[iled] 7-16-93." App. at 8. 
press's interest in obtaining the jurors' names and addresses so 

that they could be interviewed. The district judge responded: 

 I'm very interested in that issue. I'm a bit 

baffled by it, to be perfectly frank with 

you, because everything we do in this system 

of justice is designed to protect the secrecy 

of the jury proceedings. 

App. at 106. 

 The AP countered by arguing that the First Amendment 

established a right of access to jury voir dire proceedings. In 

keeping with its concerns, the court replied that it would 

require the press to rebut a presumption that communications with 

jurors may be limited in order to ensure free and confidential 

jury deliberations in the future. 

 We got a collision. We got some First 

Amendment collision with that rule [Fed. R. 

Evid. 606(b)].4 We got a collision with the 

whole jury system here. I mean . . . you 

folks are going to have the laboring oar 

 

4. Federal Rule of Evidence 606(b) provides: 

 (b) Inquiry into validity of verdict or indictment. 

Upon an inquiry into the validity of a verdict or 

indictment, a juror may not testify as to any matter or 

statement occurring during the course of the jury's 

deliberations or to the effect of anything upon that or 

any other juror's mind or emotions as influencing the 

juror to assent to or dissent from the verdict or 

indictment or concerning the juror's mental processes 

in connection therewith, except that a juror may 

testify on the question whether extraneous prejudicial 

information was improperly brought to the jury's 

attention or whether any outside influence was 

improperly brought to bear upon any juror. Nor may a 

juror's affidavit or evidence of any statement by the 

juror concerning a matter about which the juror would 

be precluded from testifying be received for these 

purposes. 
here. I'll tell you that. I'll give you a 

hearing, obviously. You have a laboring oar 

with me to show me . . . what, if any, 

prevailing news gathering or First Amendment 

arguments are sufficient to overcome the very 

sacred nature of a jury's deliberations. 

 It would seem to me--I'm just talking flat 

out. What are you going to ask the jury? 

How did you vote? What did your fellow 

jurors think? What evidence impressed you? 

 These are all things which fall squarely 

within the proscriptions of that rule. I 

can't call them to testify as to that. 

App. at 107. 

 The judge then voiced his reluctance to release the 

identities of the jurors because of his concern about the growing 

trend of jurors in high-profile cases to discuss their 

deliberations post-trial. He expressed his concern in stating: 

 All of a sudden, the minute they finish their 

job, you send them outside and the press can 

go asking them about their feelings about the 

case? How did you vote in the case? 

 This sensationalism has got to stop some 

place. We have to get back to our system of 

justice. . . . There is something radically 

wrong if we're trying cases in the press. 

App. at 110. 

 The district judge's focus on Rule 606(b) is evident 

from his comments. The judge indicated that this rule helps to 

promote secrecy, which, in turn, promotes the health of the 

deliberative process. He emphasized his belief that the 

limitations of Rule 606 apply equally to press interviews as they 
do to investigations into the validity of a verdict: "I'm stuck 

on question number one, which is what can you ask a juror which . 

. . does not fly in the face of what 606(b) talks about?" App. 

at 113. 

 While the above concerns applied to the continued 

sealing of the transcripts, the judge also explained why he 

believed the initial closure order to have been necessary: 

 I sealed it all [the transcript and court 

documents containing juror-identifying 

information] because I wasn't going to have 

my ruling subverted, hopefully. I sealed 

everything. 

. . . 

 The purpose of my gag order was very simple. 

It was to get back to the very basic and 

fundamental issue of having a jury not 

affected by any outside influences, including 

the outside-of-the-court statements made by 

counsel for the government or for the 

defense. 

 I've accomplished my purpose. Absolutely. 

App. at 124. 

 In concluding, the judge explained that he would be 

calling the jurors later that day to discharge them and that he 

would "strongly suggest, in view of their duties, that they not 

discuss the matter with the press at least insofar as their 

deliberations are concerned." App. at 117. The judge cautioned 

the press that they should not contact the jurors pending a final 

decision, even if they were to come across the jurors' identities 

through legitimate means. "I would recommend that they await 
this Court's ruling. . . . If they want to take me on, be my 

guest. . . . [I]t might be considered inappropriate to go ahead 

and try to do some investigative work on the jury in the interim 

before you have intervened in the proceeding." App. at 119-120. 

At the end of the hearing, the judge scheduled argument for 

August 23 on the questions of intervention and of the release of 

the jurors' identities. The argument date was subsequently 

postponed to October 18. 

 The Newark Morning Ledger Company and the New Jersey 

Press Association then joined the AP in the motion to intervene.5 

After full briefing of the issues, at the October 18, 1993, 

hearing, the district judge permitted the interventions. He also 

reiterated his concerns about protecting the jury deliberation 

process: 

 You're talking about invading the jury room. 

. . . You're going to ask them what the 

deliberations were about, what was important, 

what was unimportant, who voted for what, was 

there a split on this. 

 

5. In addition, defendant Eddie Antar addressed the issue before 

the district court, arguing in favor of release of the voir dire 

transcripts. Letter from David W. Fassett, Esq. to Judge 

Nicholas H. Politan (Aug. 26, 1993), App. at 208-212; Transcript 

of Proceedings, October 18, 1993, App. at 184-86. Antar based 

his argument upon the criminal defendant's Sixth Amendment right 

to a public trial, suggesting that this right mandated disclosure 

of all sealed transcripts. In particular, he relied upon Waller 

v. Georgia, 467 U.S. 39, 104 S.Ct. 2210 (1984), as well as this 

court's findings that subsequent public access to transcripts 

helps to fulfill the constitutional purpose of an open trial, 

United States v. Smith, 787 F.2d 111, 114 (3d Cir. 1986). Antar 

has not raised this issue on appeal, and we see no need to 

address it here. 
. . . 

 That is what you gentlemen are espousing. 

You gentlemen are espousing opening that door 

and letting the public know everything that 

goes on in the deliberative process under the 

guise of the First Amendment. Not for the 

purpose of . . . doing some analytical study 

of the juror, but to sell a newspaper, sir. 

That's all you're looking to do. Sell 

newspapers. Don't ever forget it. 

App. at 144-45. The judge further questioned whether there could 

be any "valid public interest" in learning, after the fact, about 

jury deliberations in a criminal case. 

 C. The District Court Opinion

 The transcripts remained under seal until December 13, 

1993. On December 9, 1993, the district court issued its order 

and opinion unsealing the records, to become effective four days 

later. United States v. Antar, 839 F.Supp. 293 (D.N.J. 1993). 

 In its opinion, the district court quickly disposed of 

the matter of the initial sealing. The court explained that the 

AP's letter requesting the jurors' names and addresses had caused 

immediate concern by raising the possibility that the press would 

interfere with the jurors prior to their rendering a verdict. In 

response, "the court found it necessary to exercise its broad 

discretion in supervising the fair administration of justice," 

and so it sealed the transcripts and other court records 

containing juror-identifying information. Id. at 298. 

 The court then turned to consideration of whether the 

transcripts should now be unsealed. The court characterized the 
press's claim of access as an "assertion of a right to invade the 

secret deliberations in the jury room." Id. at 296. In 

analyzing whether the press possessed a legitimate claim to the 

voir dire transcripts, the court framed the issue as whether the 

press had a First Amendment right of access to the jurors 

identities. Examining this potential "right of access to jurors' 

identities," the court found that, (1) historically, the 

identities of jurors have been known to the community, and (2) 

such knowledge promotes the values of openness, fairness, and the 

perception of fairness in the criminal justice system. Turning 

to the fact that access to jurors' identities facilitates postverdict interviews by the press, however, the court found that 

this practice "bodes ill for the continued vitality and 

authoritativeness of the jury system," id. at 302, and suggested 

that "the need for secrecy of jury deliberations is fundamental 

to the tradition of justice." Id.

 The court, then, recognized two compelling, if 

competing, interests. Historical practice and values weighed in 

favor of open recognition of jurors' identities; weighing against 

disclosure was the "compelling societal and governmental interest 

in maintaining the secrecy of the jury deliberative process and 

protecting jurors from harassment, judgment and/or punishment 

after rendering a verdict." Id. at 303. Of primary concern to 

the court was the likelihood that probing jury deliberations 
would discourage free and open exchange during the deliberative 

process: 

 Common human experience dictates that one's 

candor may be compromised when one fears that 

his or her thoughts and comments . . . may be 

revealed to the public immediately upon 

rendering a verdict and being discharged. 

Id. at 304.6 

 The court determined that the "fair administration of 

justice" required it to make an accommodation between the two 

interests, balancing each, rather than promoting one at the 

expense of the other. As such, the court ordered the unsealing 

of the voir dire transcripts and other public documents but 

placed restrictions upon "any person" who might seek access to 

the information contained therein. 

 The court imposed four limitations on juror contacts by 

"any person who comes into possession of the transcript of the 

juror voir dire and the juror identifying information contained 

therein . . .." The first restriction, "(a) no juror is under 

any obligation to grant an interview nor may any juror be 

compelled to do so," is consistent with the routine instructions 

customarily given to jurors in the federal court system. See

Administrative Office of the United States Courts, Handbook for 

Trial Jurors 11 (1991). 839 F.Supp at 295. 

 

6. Specifically, in the text of its order, the court held that 

"Providing unfettered access to the press and the public in 

general . . . presents a substantial threat to the administration 

of justice by endangering the deliberative process." Id. at 295. 
 Though the court made no mention of actual or 

threatened harassment of the jurors in this case, it described 

the next two limitations as protecting the jurors from 

harassment. These limitations restricted the manner in which the 

Antar jurors might be approached and interviewed: 

 (b) repeated requests of a juror for an 

interview are strictly prohibited; 

 (c) once a juror expresses a desire to 

conclude an interview already in progress, 

that interviewer must immediately cease all 

questioning[.] 

Id. In fact, the court recognized that it was imposing these 

restrictions as a preemptive, rather than reactive, step, to 

protect the jurors "should the members of the press become 

overzealous in their quest for that which they have no particular 

right to know." Id. at 305. 

 The fourth limitation was addressed to the interest in 

maintaining the confidentiality of the jury deliberations. It 

provided that 

 (d) no inquiry may be made into the specific 

votes, statements, opinions or other comments 

of any juror during deliberations other than 

the juror being interviewed. 

This also is consistent with the provisions of the federal 

Handbook for Trial Jurors, which instructs federal trial jurors 

that "the court may enter an order in a specific case that during 

any such interview, jurors may not give any information with 

respect to the vote of any other juror." Id. at 11. Commenting 

upon the fourth restriction, the district judge acknowledged, 
however, that the effect of the restriction upon the press' 

inquiry was somewhat illusory: "If a juror freely chooses to 

disclose such information, so be it. This Court, unfortunately, 

is powerless to prevent such happenstance." 839 F.Supp. at 305. 

This fourth limitation, then, inhibited only certain disclosures, 

i.e., only those solicited by others, rather than those initiated 

by a juror himself or herself. 

 The district judge summed up his justification for this 

final restriction, stating: 

 The restriction[] serve[s] to guard against a 

future juror's reluctance to openly share his 

or her opinions for fear that those opinions 

will be revealed by fellow jurors to all 

inquiring minds. 

Id. at 306. 

 Finally, the court's opinion set out the provisions of 

a letter to be sent to the jurors simultaneously with the release 

of the court's opinion and order. Id. at 306-08. The letter 

explained to the jurors that their names and addresses were being 

unsealed, and it warned that they might be contacted by members 

of the press. The court noted that each juror had "a right to 

talk to anyone about any aspect of the case, if you so choose." 

Id. at 308. The court, however, asked the jurors to keep the 

views of the court in mind when dealing with the press. In 

particular, the court advised: 

 This tradition of secrecy is a hallmark of 

the jury system. . . . Accordingly, I suggest 

to you that our jury system functions better 

if jurors continue to respect the privacy of 
the jury room after their deliberations have 

concluded. 

Id. The letter ended with a recitation of the limitations 

imposed in the court's order. 

 The press responded to the order by filing this timely 

appeal. 

 

II. 

A. 

 The district court had jurisdiction over the underlying 

criminal prosecutions pursuant to 18 U.S.C. § 3231. Under 28 

U.S.C. § 1291, we have appellate jurisdiction to review final 

decisions of the district court. We have previously noted that 

orders either granting or denying access to portions of a trial 

record are appealable as a final orders pursuant to § 1291. 

United States v. Raffoul, 826 F.2d 218, 222 (3d Cir. 1987); 

Smith, 787 F.2d at 113. 

 The existence of statutory jurisdiction does not settle 

the question, however. Under Article III, § 2 of the 

Constitution our ability to exercise judicial power extends only 

to live cases and controversies. The court's December 9 order 

currently affects the rights of the parties, so it presents such 

a case. At first glance, however, the July 16 sealing order 

appears to have been mooted by the December 9 order because the 

transcripts have, in fact, been unsealed. On that issue, no 
meaningful relief remains to be granted, and an opinion on the 

matter would appear to be advisory in nature. 

 We believe, however, that the court's sealing of the 

voir dire falls within that class of cases which are "capable of 

repetition, yet evading review." Southern Pacific Terminal Co. 

v. Interstate Commerce Comm'n, 219 U.S. 498, 515, 31 S.Ct. 279, 

283, (1911). See, e.g., Press-Enterprise Co. v. Superior Court, 

478 U.S. 1, 6, 106 S.Ct. 2735, 2739 (1986) ("Press-Enterprise 

II"). The "capable of repetition" doctrine is a narrow exception 

to the mootness principle, appropriately limited to cases 

satisfying the following two requirements: 

 (1) the challenged action was in its duration 

too short to be fully litigated prior to its 

cessation or expiration, and (2) there is a 

reasonable likelihood that the same 

complaining party would be subjected to the 

same action again. 

Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 349 

(1975)(per curium). See also Dia Navigation Co. v. Pomeroy, _ 

F.3d _ (3d Cir. 1994). 

 In cases such as this, involving the presumptive right 

of access to the stages of a criminal proceeding, a prohibition 

on access is tied in some fashion to the ongoing proceeding. As 

such, it typically is of short duration and could easily evade 

review. Cf. Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 

102 S.Ct. 2613 (1982). Based on the court's post hoc rationale 

of protecting the jury during its deliberations, the court could 

have unsealed the transcripts in a matter of days, once the 
verdict had been returned. It did not do so for five months. 

However, the fact that the court has now lifted a ban that was 

improperly imposed should not work to preclude appellate review. 

See Richmond Newspapers, Inc. v. Virginia, 488 U.S. 555, 563, 100 

S.Ct. 2814, 2820 (1980) ("This Court has frequently recognized . 

. . that its jurisdiction is not necessarily defeated by the 

practical termination of a contest which is short-lived by 

nature"). 

 The government, however, argues against application of 

the "capable of repetition" exception on the ground that the 

scenario of this case is unlikely to recur. True, it is unusual 

that the crowding of a courtroom during voir dire will leave the 

members of the press out in the corridor, where they will not 

learn the identities of the jurors. Nonetheless, what is 

important is that these parties not again be denied their right 

of access to otherwise public transcripts without first receiving 

the procedural and substantive protections that are prerequisite 

to such exclusions.7 Accordingly, we will address the merits, 

after a brief foray into the standard of review. 

 

7. This court has consistently found a reasonable likelihood of 

recurrence to exist in situations involving denial of press 

access to criminal proceedings and transcripts. See, e.g.,

United States v. Simone, 14 F.3d 833, 836-37 (3d Cir. 

1994)(closure of post-trial examination of jurors not moot though 

proceedings concluded and transcript released); Raffoul, 826 F.2d 

at 222 (closure of courtroom during defendant's testimony not 

moot though proceedings concluded); United States v. Criden, 675 

F.2d 550, 554 (3d Cir. 1982)("Criden II")(sealing of pre-trial 

hearing transcript not moot though proceeding concluded and 

transcript publicly available). Cf. United States v. A.D., _ 

F.3d _, _ n.1 (3d Cir. 1994)(closure of juvenile detention and 
B. 

 We exercise plenary review in determining whether the 

district court applied the proper legal principles first in 

sealing the transcript and later in unsealing it with 

limitations. Simone, 14 F.3d at 837; Smith, 787 F.2d at 113 (3d 

Cir. 1986). As a matter of course, we review the fact-finding of 

the district court with substantial deference, reversing only for 

clear error. Fed. R. Civ. P.52(a). In the First Amendment 

context, however, the Supreme Court has recognized the duty of 

reviewing courts to engage in an independent factual review of 

the full record. New York Times Co. v. Sullivan, 376 U.S. 254, 

285, 84 S.Ct 710, 728 (1964).8 Thus we have explained that when 

(..continued) 

delinquency proceedings, and sealing of transcripts, not moot 

despite fact proceedings already concluded). In particular, the 

court has taken notice of the fact that "certainly the press and 

public will continue to seek access to criminal trials," Raffoul, 

826 F.2d at 222, with the prospect that the press may be subject 

to wrongful closure or sealing orders in the future. 

8. See also Bose Corp. v. Consumers, 466 U.S. 485, 498-502, 104 

S.Ct. 1949, 1958-60 (1984). In Bose, the Court was concerned 

with an apparent conflict between the seemingly limited scope of 

review established by F. R. Civ. P. 52(a) and the "independent 

factual review" required by New York Times v. Sullivan. The 

Court found the rules to be compatible, based in part upon a 

weaker presumption of accuracy given to findings of 

constitutional fact. Specifically, the Court found a more 

rigorous factual review to be appropriate where the legal rule at 

issue "assigns an especially broad role to the judge in applying 

it to specific factual situations," where the rule is "given 

meaning through the evolutionary process of common-law 

adjudication," and where the constitutional values protected by 

the rule "make it imperative" that the rule is correctly applied. 

Id. at 502, 104 S.Ct. at 1960. Accord United States v. Criden, 

648 F.2d 814, 817 (3d Cir. 1981)("Criden I")(finding that scope 

of "abuse of discretion" review "will be directly related to the 
we address a right of access claim, our scope of review is 

substantially broader than that for abuse of discretion. "This 

broader review includes independent consideration of the district 

court's order and the factual findings inferred from the evidence 

before it." In re Capital Cities/ABC, Inc., 913 F.2d 89, 92 (3d 

Cir. 1990). 

III. 

A. 

 We believe that the district court lost sight of the 

requisites of access to court proceedings because of its concern 

for protecting the jurors and their deliberations from exposure 

by the press. The issue of media access to jurors is a topic of 

vigorous debate, and the views of the district court, as set 

forth above, are well represented in the literature.9 Yet in 

(..continued) 

reason why that category or type of decision is committed to the 

trial court's discretion in the first instance."). 

9. On this debate, see, e.g., Abraham S. Goldstein, Jury Secrecy 

and the Media: The Problem of Postverdict Interviews, 1993 U. 

Ill. L. Rev. 295 (suggesting that jury's "authoritativeness" and 

its role as "guardian of community social-justice values" are 

threatened by public exposure, but arguing that best solution 

would come from legislature in form of statute prohibiting 

disclosure of deliberations, as this might support finding of 

compelling governmental interest overriding First Amendment right 

of access)(But see Globe Newspaper Co. v. Superior Court, 457 

U.S. 596, 102 S.Ct. 2613 (1982) (requiring case-by-case, 

individualized findings of compelling interest before closure may 

be ordered and rejecting notion that legislative findings and 

enactment could support closure in all cases of a given class)); 

Robert L. Raskopf, A First Amendment Right of Access to a Juror's 

Identity: Toward a Fuller Understanding of the Jury's 

Deliberative Process, 17 Pepp. L. Rev. 357 (1990) (advocating a 
both of its orders--first sealing the transcript, and then 

limiting the use of the juror information--the court failed to 

make findings sufficient to justify its restrictions on access. 

By recasting the question posed as "whether the press has a right 

of access to the jurors' identities," the court obscured the 

central issue in this case: the propriety of limiting the right 

of access sua sponte, without findings, and under the 

circumstances which existed both at the time of the sealing and 

at the time of the restricted unsealing. 

 Although the actions of the district judge served to 

deprive the press of the jurors' identities, this objective was 

accomplished by means of sealing the voir dire transcript. Under 

the Supreme Court's First Amendment analysis, we must look 

objectively to that which was done and the means by which it was 

accomplished. Then, we assess whether those actions comport with 

the substantive and procedural strictures established to 

vindicate the "freedom of speech, [and] of the press" guaranteed 

under the First Amendment. As such, our analysis starts with the 

first action taken--the sealing of the voir dire transcript. 

B. 

(..continued) 

right of access to jurors' identities and describing the 

educational and institutional benefits of juror interviews); 

Note, Public Disclosures of Jury Deliberations, 96 Harv. L. Rev. 

886 (1983)(recognizing that post-trial restrictions on access to 

jurors implicate First Amendment protections and suggesting that 

judges use persuasive, rather than prohibitive, techniques, such 

as judicial supervision of interviews and admonishment of jurors 

concerning the need to protect the secrecy and confidentiality of 

their deliberations). 
 The public right of access to voir dire proceedings in 

a criminal case is firmly established. The Court's "right of 

access" jurisprudence began with Richmond Newspapers, Inc. v. 

Virginia, 448 U.S. 555, 100 S.Ct. 2814 (1980), in which the Court 

held that the First Amendment provides the public and the press 

with a right of access to criminal trials.10 The case involved a 

retrial in a murder prosecution that had been closed without 

findings or consideration of alternatives to closure. Tapes of 

the proceedings were, however, released as soon as the trial 

concluded. The Court found that criminal trials are covered by a 

"presumption of openness," id. at 573, 100 S.Ct. at 2825, so that 

closure of the proceedings may be justified only by an 

"overriding interest articulated in findings." Id. at 581, 100 

S.Ct at 2829. 

 In Press-Enterprise Co. v. Superior Court of 

California, 464 U.S. 596, 104 S.Ct. 819 (1984)("Press-Enterprise 

I"), the Court specifically addressed whether the guarantees of 

open public proceedings in criminal trials extend to the voir 

dire examination of potential jurors. The Court held that they 

do. Following its analysis in Richmond Newspapers, the Court 

based its finding of a right of access upon two primary 

considerations: (1) the lessons of historical practice, and (2) 

 

10. 448 U.S. at 576-77, 100 S.Ct at 2827 (plurality); 448 U.S. 

at 583-84, 100 S.Ct. at 2830-31 (Stevens, J., concurring); 448 

U.S. at 585, 100 S.Ct at 2831 (Brennan, J. and Marshall, J., 

concurring). See also Globe Newspaper Co. v. Superior Court, 457 

U.S. 596, 603, 102 S.Ct. 2613, 2618 (1982). 
the beneficial value of open proceedings to the functioning of 

the judicial process and the government as a whole. See Globe 

Newspaper, 457 U.S. at 604-06, 102 S.Ct. at 2619. This has 

become known as "the test of experience and logic." Id. at 2620; 

Simone, 14 F.3d at 837. In its historical survey, the Court 

found that jury selection has, since its inception, 

"presumptively been a public process." Press-Enterprise I, 464 

U.S. at 505, 104 S.Ct. at 821. With regard to institutional 

values, the Court concluded that "[o]penness . . . enhances both 

the basic fairness of the criminal trial and the appearance of 

fairness so essential to public confidence in the system." Id.

at 508, 104 S.Ct. at 823. As such, the court held that the right 

of access clearly encompasses voir dire proceedings, so that 

closure "must be rare and only for cause shown that outweighs the 

value of openness." Id.; 104 S.Ct. at 509. 

 The Court proceeded to set forth the standards to be 

applied in determining whether closure may be justified on the 

facts of a given case: 

 The presumption of openness may be overcome 

only by an overriding interest based upon 

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. 

Id. at 510, 104 S.Ct at 824. See also Globe Newspaper Co., 457 

U.S. at 607, 102 S.Ct. at 2620 (describing test as requiring 
showing that closure is "necessitated by a compelling 

governmental interest, and is narrowly tailored to serve that 

interest"). These requirements have been restated unequivocally 

in each of the "right of access" cases since Richmond Newspapers. 

For example, in the case subsequently known as Press-Enterprise 

II, 478 U.S. 1, 106 S.Ct. 2735, the Court held that there is a 

right of access to preliminary hearings conducted pursuant to the 

California penal code. At issue was an asserted conflict between 

the defendant's Sixth Amendment right to a fair trial and the 

First Amendment right of access to criminal proceedings. Even 

while recognizing that the defendant has an absolute right to a 

fair trial,11 the Court emphasized the unyielding substantive and 

procedural protections that must be satisfied before a trial can 

be closed to protect that competing constitutional right: 

 [T]he proceedings cannot be closed unless 

specific, on the record findings are made 

demonstrating that closure is essential to 

preserve higher values and is narrowly 

tailored to serve that interest. If the 

interest asserted is the right of the accused 

to a fair trial, [a proceeding to which the 

right of access applies] shall be closed only 

if specific findings are made demonstrating 

that, first, there is a substantial 

probability that the defendant's right to a 

fair trial will be prejudiced by publicity 

that closure would prevent and, second, 

reasonable alternatives to closure cannot 

 

11. In Press-Enterprise I the Court observed that "No right 

ranks higher than the right of the accused to a fair trial." 464 

U.S. at 508, 104 S.Ct. at 823. See also, Richmond Newspapers, 

448 U.S. at 564, 100 S.Ct. at 2821 (describing the right to a 

fair trial as "superior"). 
adequately protect the defendant's fair trial 

rights. 

Press-Enterprise II, 478 U.S. at 13-14, 106 S.Ct. at 2743 

(citations omitted).12 The Court concluded by suggesting that 

the mere assertion of a conflict between an established right of 

access and a societal or governmental interest--even another 

constitutional right--must not be used to defeat the right of the 

public and the press to open proceedings. Rather, particularized 

findings must be made on the record in each case, (1) 

establishing the existence of a compelling governmental interest, 

and (2) demonstrating that absent limited restrictions upon the 

right of access, that other interest would be substantially 

impaired. Id. at 15, 106 S.Ct. at 2743 (explaining that "[t]he 

First Amendment right of access cannot be overcome by the 

conclusory assertion that [open proceedings] might deprive the 

defendant of [the right to a fair trial]"). 

 Pursuant to Press-Enterprise I, then, there exists a 

presumptive right of access to voir dire proceedings. This right 

 

12. Furthermore, while the Court recognized the defendant's 

paramount right to a fair trial, it rejected the California 

court's analysis that closure may be justified on a mere finding 

of a "reasonable likelihood of substantial prejudice." Instead, 

the Court required a more stringent showing of "substantial 

probability." In addition to strengthening the substantive 

proofs required, as an analytical matter, the Court rejected the 

state supreme court's approach of balancing the right to a fair 

trial against the right of access, reminding "these interests are 

not necessarily inconsistent. . . . One of the important means of 

assuring a fair trial is that the process can be open to neutral 

observers." Press-Enterprise II, 478 U.S. at 7, 106 S.Ct. at 

2739. 
of access may not be abridged absent the satisfaction of 

substantive and procedural protections. On the substantive side, 

a court ordering closure must first establish that the competing 

interest asserted is not only "compelling," but also that it 

outweighs the First Amendment right of access. Second, it must 

determine that the limitations imposed are both necessary to and 

effective in protecting that interest. One part of establishing 

the necessity of a limitation is a consideration of alternative 

measures and a showing that the limitation adopted is the least 

restrictive means of accomplishing the goal. See A.D., _ F.3d _; 

Criden II, 675 F.2d 550. On the procedural side, these 

determinations must be covered by specific, individualized 

findings articulated on the record before closure is effected. 

See Simone, 14 F.3d at 840; Raffoul, 826 F.2d at 226; Criden II, 

675 F.2d at 554, 560. 

1. 

 In the case now before us, the government attempts to 

evade the implications of the above by suggesting that the actual 

voir dire proceedings were not closed. True, no court order 

excluding non-parties was entered on the record. Nonetheless, 

the court requested that the press leave the courtroom, thereby 

precluding them from obtaining information about the jurors. The 

mere fact that the members of the press politely responded to a 

judicial request, rather than waiting to be compelled by an 

order, should not inure to their detriment. 
 That distinction aside, the fact that the courtroom was 

open during those three days in June is of little import, as we 

find that the right of access to voir dire examinations 

encompasses equally the live proceedings and the transcripts 

which document those proceedings. See New York v. Chambers, 14 

Med. L. Rptr. 1919 (N.Y. Sup. Ct. 1987)(right of access extends 

to voir dire transcripts, even where press has been present 

during open voir dire proceedings). It is access to the content 

of the proceeding--whether in person, or via some form of 

documentation--that matters.13 Several factors compel this 

result. 

 

13. We emphasize, however, that documentary access is not a 

substitute for concurrent access, and vice versa. The right of 

access encompasses both forms, and both are vitally important. 

Thus, where a right of access exists, a court may not deny access 

to a live proceeding solely on the grounds that a transcript may 

later be made available. Such a transcript would not fully 

implement the right of access because some information, 

concerning demeanor, non-verbal responses, and the like, is 

necessarily lost in the translation of a live proceeding to a 

cold transcript. In Simone, 14 F.3d at 842, this court 

explained, 

 Because we have found the district court's 

findings in this case were insufficient to 

support closure, we cannot conclude that the 

release of the transcripts afforded adequate 

access in this case. To do so would relax 

the standard for closure and would undermine 

one of the essential aspects of access by 

permitting public scrutiny of proceedings 

only at this later time. 

 Of course, where a court follows the procedure outlined 

above and finds that closure is necessary and effective to 

preserve an overriding interest, so that the right of access may 

therefore be temporarily limited, later release of a transcript 
 First, openness is ongoing--a status rather than an 

event. At the heart of the Supreme Court's right of access 

analysis is the conviction that the public should have access to 

information; the Court never has suggested that an open 

proceeding is only open to those who are able to be bodily 

present in the courtroom itself.14 True public access to a 

(..continued) 

may be the next best means of implementing the right of access. 

Thus, for example, in Smith, 787 F.2d 111, this court held that 

the press and the public may be justifiably excluded from sidebar 

and in camera conferences. However, we continued to explain 

that: 

 [I]f there has been no contemporaneous 

observation, the public interest in 

observation must be effectuated in the next 

best possible manner. This is through the 

common law right of access to judicial 

records. 

Id. at 114-15. 

14. Specifically, though Press-Enterprise I involved closure of 

voir dire proceedings, neither the language nor the reasoning of 

that case suggest that the right of access should be construed to 

distinguish between concurrent access to live proceedings and 

later access to a written record. The Court was concerned with 

information, not with a particular means of communication. The 

Court wrote: 

 The value of [the open selection of jurors] 

lies in the fact that people not actually 

attending trials can have confidence that 

standards of fairness are being observed; the 

sure knowledge that anyone is free to attend 

gives assurance that established procedures 

are being followed and that deviations will 

become known. 

464 U.S. at 508, 104 S.Ct. at 823. Similarly, public confidence 

is furthered by the knowledge that access to the proceedings is 

available at a later date via the transcript which is a public 

judicial record. 
proceeding means access to knowledge of what occurred there. It 

is served not only by witnessing a proceeding firsthand, but also 

by learning about it through a secondary source. In fact, 

recognition of the crucial role of secondary representation is 

the basis for the Court's protection of the rights of the media, 

who have been described by the Court as "functioning as 

surrogates for the public." Richmond Newspapers, Inc., 448 U.S. 

at 574, 100 S.Ct. at 2825.15 Access to the documentation of an 

open proceeding, then, facilitates the openness of the proceeding 

itself by assuring the broadest dissemination. It would be an 

odd result indeed were we to declare that our courtrooms must be 

open, but that transcripts of the proceedings occurring there may 

be closed, for what exists of the right of access if it extends 

only to those who can squeeze through the door?16

 Furthermore, at the most basic level, the transcript 

at issue is a public judicial document, covered by a presumptive 

 

15. The close connection between the rights of the public and 

the rights of the press has been widely observed. In Nixon v. 

Warner Communications, 435 U.S. 589, 609, 98 S.Ct. 1306, 1318 

(1978), the Court noted that the press "serves as the 

information-gathering agent of the public." As such the First 

Amendment generally grants to the press no greater--and also no 

lesser--right to information about a trial than it does to the 

public at large. See John E. Nowak & Ronald D. Rotunda 

Constitutional Law § 16.20 (4th ed. 1991). 

16. See Criden I, 648 F.2d at 822 (noting that "the public forum 

values emphasized in [Richmond Newspapers] can be fully 

vindicated only if the opportunity for personal observation is 

extended to persons other than those few who can manage to attend 

the trial in person."). 
right of access. The Supreme Court, in Nixon v. Warner 

Communications, Inc., recognized an historically-based, common 

law right to inspect and copy judicial records and documents. 

435 U.S. at 597, 98 S.Ct. at 1312. In fact, this longestablished17 common law right has played a crucial role in the 

development of First Amendment jurisprudence. As the First 

Circuit has observed, "The common law presumption that the public 

may inspect judicial records has been the foundation on which the 

courts have based the first amendment right of access to judicial 

proceedings." Anderson v. Cryovac, Inc., 805 F.2d. 1, 13 (1st 

Cir. 1986) (emphasis added). 

 This court has also noted that the common law right of 

access to transcripts helps to fulfill the openness of criminal 

trials assured by the First Amendment and recognized in Richmond 

Newspapers: "By inspection of such transcripts, the public, 

usually through the press, can monitor, observe, and comment upon 

the activities of the judge and the judicial process." Smith, 

787 F.2d at 115. Under our guiding jurisprudence, "[t]he 

existence of a common law right of access to . . . inspect 

judicial records is beyond dispute." Publicker Indus., Inc. v. 

Cohen, 733 F.2d 1059, 1066-67 (3d Cir. 1984). See, e.g.

Leucadia, Inc. v. Applied Extrusion Technologies, Inc., 998 F.2d 

157 (3d Cir. 1993); Republic of Philippines v. Westinghouse Elec. 

 

17. "The right to inspect and copy [judicial records and 

transcripts] antedates the Constitution." Criden I, 648 F.2d at 

819 (citation omitted). 
Corp., 949 F.2d 653 (3d Cir. 1991). This strong presumption of 

access to records, including transcripts, provides independent 

support for the conclusion that the First Amendment right of 

access must extend equally to transcripts as to live proceedings. 

2. 

 The government next contends that if, indeed, the 

sealing of the transcripts is to be considered a "closure" which 

is covered by a right of access, such closure was justified by 

compelling reasons. Even were that so, we still would be 

required to reverse the order of the district court. This is 

because at the time of the sealing, no findings were placed on 

the record. Findings were not issued until December 9, 1993, 

nearly five months after the sealing occurred. Under the 

procedure established in Press-Enterprise I and the subsequent 

right of access cases, closure may not be retroactively 

validated. The court here did not satisfy its burden of placing 

findings on the record which clearly established that closure was 

necessary to protect an overriding interest. On this basis 

alone, the order sealing the transcripts was improper.18 While 

 

18. We note as well that this case raises important due process 

clause issues. First, there was not even minimal notice and an 

opportunity to respond prior to the deprivation of the right of 

access. And after the deprivation occurred and the press 

objected, asserting the right of access, there was a delay before 

a hearing was afforded. In Raffoul, 826 F.2d at 224, this court 

held that the due process clause "prohibits exclusion of the 

press and public from a criminal trial without affording full and 

fair consideration to the public's interest in maintaining an 

open proceeding." The court required that motions for closure be 

publicly docketed, that in camera motions be renewed in open 

court, and that a brief, pre-closure hearing be granted as a 
the district court revisited that order, unsealing the 

transcripts with limitations placed upon their use, that initial, 

improper action was not cured by the release of the transcript. 

See Simone 14 F.3d at 842. Under Press-Enterprise I, the press 

had a right of access to the information, and as each day passed, 

(..continued) 

matter of right to those actually present in court before closure 

may be ordered. In addition, "interested members of the press 

and public must be permitted a hearing within a reasonable time 

in order to move for access to sealed transcripts of a closed 

proceeding." Id. at 225. See also Criden II, 675 F.2d at 559 

(requiring that motions for closure of pretrial proceedings must 

be entered on docket sufficiently in advance of disposition to 

afford an opportunity for intervention and resistance). 

 Here, of course, the proceedings were not closed, so 

that closure began with the sealing of the transcripts. Yet that 

distinction is not dispositive, for the right of access extends 

equally to transcripts as to proceedings. See supra at __. The 

logic of Raffoul suggests that the provision of some minimal 

notice and a limited opportunity for a hearing was incumbent upon 

the court before it could impose closure of its own motion. It 

is axiomatic that, at a minimum, procedural due process requires 

that the deprivation of a protected interest be accompanied by 

notice and an opportunity to be heard at a meaningful time, and 

in a meaningful manner. Goldberg v. Kelly, 397 U.S. 254, 267, 90 

S.Ct. 1011, 1020 (1970); Armstrong v. Manzo, 380 U.S. 545, 552, 

85 S.Ct. 1187, 1191 (1965); Raffoul, 826 F.2d at 222. As Justice 

Powell observed in Gannett, Co. v. DePasquale, 443 U.S. 368, 400-

01, 99 S.Ct. 2898, 2916 (concurring), 

 It is not enough . . . that the trial courts 

apply a certain standard to requests for 

closure. If the constitutional right of the 

press and public is to have substance, 

representatives of these groups must be given 

an opportunity to be heard on the question of 

their exclusion. 

This passage was adopted by a Court majority in Globe Newspaper, 

457 U.S. at 609, n. 25, 102 S.Ct. at 2621. 
the information denied to the press and the public grew 

increasingly stale. 

3. 

 The on-going effect of the initial lack of findings is 

a prime example of the correlation between substance and 

procedure. In the First Amendment context, the procedural 

requisites to closure are crucial in order to protect against 

erroneous restrictions upon the right of access.19 Thus, the 

requirement that particularized findings of a compelling interest 

must be placed on the record before a hearing is closed or a 

record sealed is not only for the benefit of the reviewing court 

on appeal. It exists, most fundamentally, to assure careful 

analysis by the district court before any limitation is imposed, 

because reversal on review cannot fully vindicate First Amendment 

rights. 

 Here, the lack of findings at the outset facilitated 

the delay in the unsealing of the transcript. It is questionable 

whether the court's after-the-fact description of its reason for 

sealing the transcript pre-verdict--to protect the jury from 

outside influences during their deliberations20--is supported by 

 

19. Cf. Mathews v. Eldridge, 424 U.S. 319, 335, 343, 96 S.Ct. 

893, 903, 907 (1976)(finding the value of procedural safeguards 

to be a factor in determining what procedure is due to protect 

against the erroneous deprivation of liberty or property 

interests within the meaning of the due process clause). 

20. Antar, 839 F.Supp. at 300 ("[S]ealing the voir dire was 

necessary at that time to preclude any possibility of contact by 

the media during deliberations."). 
the record. However, even if it were, that basis evaporated upon 

the return of a verdict. By the court's own logic it should have 

unsealed the transcripts on July 20. In fact, as early as August 

2, the court acknowledged, "I've accomplished my purpose. 

Absolutely." Yet the court failed to unseal the documents. 

Under the First Amendment, once an overriding interest initially 

necessitating closure has passed, the restrictions must be 

lifted.21 Had the court clearly articulated its reasons for 

closure on the record, the passing of the purported exigency may 

have been more noticeable.22

 The lack of findings also allowed the court to pass 

over the fact that, where a right of access exists, the proponent 

of closure bears a strong burden in rebutting the "presumption of 

 

21. See Capital Cities Media, Inc. v. Toole, 463 U.S. 1303, 

1306, 103 S.Ct. 3524, 3527 (1983)(Brennan, Circuit 

Justice)("Insofar as the State's interest is in shielding jurors 

from pressure during the course of a trial, so as to ensure the 

defendant a fair trial, that interest becomes attenuated after 

the jury brings in its verdict and is discharged."); In re Globe 

Newspaper Co., 920 F.2d 88, 91 (1st Cir. 1990)("[S]tronger 

reasons to withhold juror names and addresses will often exist 

during a trial than after a verdict is rendered. After the 

verdict, release normally would seem less likely to harm the 

rights of the particular accuseds to a fair trial.). 

22. We indicate no judgment whether the court's post hoc 

justification, if offered as a finding before closure, would have 

been sufficiently evidenced to have satisfied the need for an 

"overriding interest." In its December 9 opinion the court found 

that, despite counsel's assurance that he would not release the 

names and addresses of the jurors to the press before the 

verdict, the request was sufficient to raise a tangible threat to 

the purity of the jury's deliberations and sufficiently 

compelling to have permitted closure. 
openness." Instead of recognizing that it bore the burden of 

justifying the original sealing order, as well as the decision to 

maintain the transcripts under seal, the court shifted the burden 

to the press to demonstrate to the court why the documents should 

be unsealed.23 In effect, once the court accomplished the 

sealing--without affording either the press or the public the 

procedural protections of findings, notice, or an opportunity to 

respond--it viewed the sealed status of the transcripts as the 

status quo. From the record before us, the district judge 

appears not to have recognized that maintaining the transcripts 

under seal, though a passive act, was an active decision 

requiring justification under the First Amendment. 

 Moreover, not only must a court ordering closure 

establish that an overriding interest compels some limitation 

upon the right of access, but it must also ensure that the 

limitation imposed is the least restrictive means possible. In 

determining what limitation is least restrictive, the court is 

justified in recognizing the countervailing need to protect the 

confidentiality of juror deliberations. However, threats to that 

process must be actual and specific, not conclusory and generic. 

The court must articulate findings of the actual expectation of 

 

23. Thus, the court warned that the press would bear "the 

laboring oar" with regard to any argument in favor of unsealing 

the transcripts. In particular, the press would have to 

establish "what, if any news gathering or First Amendment 

arguments are sufficient to overcome the very sacred nature of a 

jury's deliberations" (emphasis added). 
an unwarranted intrusion upon juror deliberations or of a 

probability of harassment of jurors beyond what the jurors, 

rather than what a particular judge, may deem to be acceptable. 

 Unfortunately, the district court here failed to make 

the particularized findings which may sufficiently justify a 

limitation upon the right of access. This allowed the district 

judge to rely upon his personal assessment of generalized, 

societal concerns. 

4. 

 Compounding the problem of the late release of the 

transcript was the nature of the restrictions, placed upon the 

press's use of juror information, in the absence of findings that 

jurors were being harassed or that a threat of undue harassment 

was impending.24 As noted above, there is substantial debate 

about the value of post-verdict interviews. Supra note 8. The 

benefits of access and of public awareness of the duties and 

obligations of the jury process are weighed against concerns that 

courts may become carnivals, that jurors may be reluctant to 

serve in future cases if they fear their comments in the jury 

room will be repeated later by their fellow jurors for broadcast 

to the public, and that public knowledge of the factors behind a 

verdict may undermine respect for the process. 

 

24. We deal with the issue here under the circumstance that the 

restrictions were imposed five months after the conclusion of the 

trial. We realize of course that the result we reach here might 

not be appropriate in all aspects were the district court dealing 

with restrictions on juror contacts at the immediate close of a 

widely publicized trial. 
 Though an interesting debate, generalized social claims 

should not bear upon a decision whether limitations should be 

placed upon the press's ability to have post-trial access to 

jurors. Here, for example, the court's concern with harassment 

was hypothetical, as there was no evidence, or even allegation, 

of misbehavior by the press.25 In fact, both in the initial 

letter to the court requesting the juror's names and at the 

October 18 hearing, the press suggested that, upon the court's 

agreement, they would interview those jurors who were willing 

after the verdict in a separate room at the courthouse, so as to 

allow the court to supervise and to minimize any potential for 

disturbing the jurors at their homes. Of course, where evidence 

of harassment does exist, it is unquestionable that the court has 

both the power, as well as the duty, to prevent it. In re NewsExpress Corp., 695 F.2d 807, 810 (5th cir. 1982); United States 

v. Doherty, 675 F.Supp. 719, 724 (D. Mass. 1987). 

 Moreover, in the present case, because there is not a 

sufficient record of the immediacy of juror harassment by the 

press, we are unable to determine whether there may have been 

viable alternatives to the limitations imposed on juror contacts 

after the transcripts were unsealed. The district court was 

correct to be concerned about the potential negative effect of 

 

25. The closest thing to factual support for a finding of a 

potential for harassment is the court's observation of what it 

called a "truism"-- that "reporters are persistent and tenacious 

in pursuing information." 839 F.Supp. at 303 (citation omitted). 
disclosures by former jurors upon the freedom and candor of 

deliberations in future cases. And though this may not suffice 

to restrict the right of access to voir dire transcripts, it does 

not mean that other avenues of recourse are unavailable. In 

particular, the district court has the discretion to discuss 

press contacts with the jury at the end of a trial; to emphasize 

to the jurors the importance of maintaining the confidentiality 

of jury deliberations in order to promote frank discussion during 

those deliberations; to assure jurors that the court will protect 

them from harassment by the press; to provide, if necessary, a 

neutral area where the press can interview the jurors; and to 

remind the jurors of the value of their service and the crucial 

role that trust and confidentiality among jurors plays in the 

fulfillment of their duty. See, e.g., Globe Newspaper, 920 F.2d 

at 93-94 ("It has . . . been a common and, we believe, wise 

custom for trial judges to advise jurors . . . that they not only 

are free to refuse to disclose what went on in the jury room, but 

that they may well think it better and more prudent to decline to 

discuss what occurred."). Such comments from the bench, though 

cautionary in nature, are thoughtfully received by jurors who 

generally accept their role with the seriousness it is due. 

 Turning to the specific restrictions imposed here, we 

will affirm the first, that no juror is obliged, or may be 

compelled, to grant an interview. This restriction is consistent 

with the advice long given to jurors concerning post-trial press 
contacts. We conclude, however, that the second and third 

prohibitions, against "repeated" juror contacts and against any 

attempt to resume a juror interview after a juror expresses a 

desire to conclude it, cannot stand in the absence of any finding 

by the court that harassing or intrusive interviews are occurring 

or are intended. The existing or threatened basis for such 

restrictions must be present before they are imposed. 

Furthermore, even if sufficient basis for imposing these 

restrictions did exist, it is not certain that, in the absence of 

the consideration of alternatives, they would have been the least 

restrictive means available to the court. 

 The fourth prohibition, forbidding inquiry into the 

"specific votes, statements, opinions or other comments" of any 

other juror, encompasses in part the provision in the Handbook 

for Trial Jurors, "the court may enter an order in a specific 

case that during any such [post-trial] interview, jurors may not 

give any information with respect to the vote of any other 

juror." Handbook at 11 (emphasis added). The Handbook provision 

is directed at "specific" cases, not all cases. We cannot 

ascertain after the fact whether the fourth restriction, in its 

broader form, was necessary one year ago under the circumstances 

of this specific case. We will not vacate it because such a 

restriction is appropriate in certain specific cases. We are 

troubled, however, by the lack of explanation for its imposition 

here. When in a specific future case the district court may 
determine to impose a similar restriction, our appellate review 

would be assisted if the district court were to give an 

explanation for the necessity of the restriction. 

 IV. 

 In closing, we acknowledge the weight of the district 

court's concerns. However, we conclude that restrictions on 

post-trial interviews must reflect an impending threat of jury 

harassment rather than a generalized misgiving about the wisdom 

of such interviews. For the foregoing reasons, the order of the 

district court will be reversed as to the original sealing order 

and as to that part of the unsealing order which comprises the 

second and third restrictions on juror contacts by the press. We 

will affirm the district court's imposition of the first and 

fourth restrictions. 
RE: UNITED STATES v. EDDIE ANTAR, et al. 

 Nos. 93-5732, 93-5733, 94-5006 

_________________________________________________________________ 

ROSENN, Circuit Judge, concurring. 

 This case marks another effort by the press to test the 

outer limits of their right to gather and print news about all 

aspects of the judicial system and implicates the historic 

efforts of the courts to protect the confidentiality of a jury's 

deliberative process. Our decision today recognizes the right of 

press access to the courts, including the right to interview 

jurors, but we reaffirm that this right is not absolute. The 

press' right to interview jurors is separated by a delicate but 

important line between the permissible and the impermissible. We 

attempt to draw that line in this case. 

 I write separately, however, to express my deep concern 

that the court, by its opinion, may be announcing conflicting and 

confusing standards with respect to the findings a district court 

must make before invoking closure during a criminal trial. 

Moreover, the court's opinion unnecessarily requires post-trial 

factual findings before a trial court can attempt to guide the 

press and jurors over the dangerous shoals that must be carefully 

navigated whenever jurors are interviewed after a verdict. 

A. 

 In this modern era, federal trial courts are confronted 

with increasingly complex cases in both civil and criminal 
trials. The trials are often complicated by intricate procedural 

rules, lengthy discovery, and time-consuming collateral issues. 

In a lengthy, nationally covered, high-profile criminal 

proceeding, such as this case, the trial judge's attempts to 

control and protect the integrity of the judicial process are 

challenging and fraught with deep risks. An appellate court, 

therefore, should refrain from burdening the trial court with 

unnecessary and exacting findings regarding collateral matters. 

 The court commences its opinion with a standard that 

requires specific findings before a trial court may order closure 

so that a reviewing court can determine whether the trial court 

properly entered a closure order. The Supreme Court of the 

United States announced this standard in 1984 and this court 

followed it until today. Now, however, the court expands the 

standard by requiring the judge to make "detailed" (Maj. Op. at 

5) and "individualized" (Maj. Op. at 27) findings before 

effecting closure. More troubling is the requirement that the 

findings "clearly" establish that the closure was necessary to 

protect an overriding interest. (Maj. Op. at 32). 

 I see no difference between the specificity of findings 

necessary to determine whether closure is justified and the 

findings required in any other dispositive aspect of a judicial 

proceeding. Trial court findings must be sufficient to enable a 

reviewing court to ascertain the basis and validity of the trial 

court's questioned ruling. No greater purpose or burden attaches 
to findings because they are made in a proceeding involving First 

Amendment issues. This is demonstrated in Press-Enterprise Co. 

v. Superior Court of California, 464 U.S. 501 (1984), (PressEnterprise I) where the Court discussed the quality of the 

findings necessary to overcome the presumption of openness and 

justify closure. The Court stated that the threatened interest 

must be articulated with findings "specific enough that a 

reviewing court can determine whether the closure was properly 

ordered." Id. at 510. The Court reiterated that standard two 

years later in Press-Enterprise Co. v. Superior Court, 478 U.S. 

1, 13 (1986) (Press-Enterprise II). The Court required no more. 

 One year later, the press complained in United States 

v. Raffoul, 826 F.2d 218 (3d Cir. 1987), that the district court 

did not articulate reasons for closure with sufficient 

specificity. Citing Press Enterprise I, this court adhered to 

the standard of specific findings enunciated in that case. More 

recently in United States v. Simone, 14 F.3d 833, 840 (3d Cir. 

1994), this court determined that a party's First Amendment right 

of access applied to post-trial examination of jurors for 

potential misconduct. We therefore considered the sufficiency of 

the district court's findings to justify restriction of that 

right. Again, the court relied on the specific findings standard 

referred to in Press Enterprise I. I see no reason in this case 

to depart from the standard we followed in Raffoul and Simone. 

Nothing here justifies a higher, more burdensome standard. Yet, 
the court's opinion today enhances the specific findings 

standard. By requiring that the trial court's findings "clearly" 

establish that closure was necessary to protect an overriding 

interest, the court puts us uncomfortably close to the clear and 

convincing standard of proof required to establish fraud. The 

additional findings now required can only lead to troublesome 

problems by requiring a trial court to calibrate its findings. 

B. 

 With respect to the sensitive area of post-verdict 

interrogation of jurors, the trial court was justifiably 

concerned with the unsupervised behavior of a zealous and 

aggressive press in these "high-profile prosecutions for 

securities fraud, RICO conspiracy, mail fraud, and related 

charges." The courts traditionally have worried about protecting 

the secrecy of a jury's deliberations because of the substantial 

danger of embarrassing, harassing, or intimidating a juror. This 

case took approximately seven weeks to try and required more than 

six days of jury deliberations. Understandably, the trial judge 

was gravely concerned with preserving the integrity of the trial 

proceedings, the confidentiality of the jury's deliberations and 

the thought processes of the individual jurors. 

 Under these circumstances, the trial court ultimately 

ordered the unsealing of the voir dire transcripts and the judge 

imposed certain limitations regarding the manner in which postverdict interviews were to be conducted in order to protect the 
jurors' privacy and in the interest of maintaining the secrecy of 

the jury deliberative process. The judge wrote each of the 

former jurors a letter informing them of his unsealing order and 

the consequent disclosure of the jurors' names and hometowns. 

The court informed them that they might be contacted by the media 

and explained their role in the justice system and the tradition 

of secrecy accorded jury deliberations. The judge was obviously 

motivated by the long recognized view of the courts that "freedom 

of deliberative thought is central to the institution of trial by 

jury and that this freedom is endangered almost as seriously by 

the prospect of post-trial disclosure as it is by the presence of 

spectators in the jury room." Note, 96 Harv. L. Rev. 905 (1982-

83). 

 The trial judge further advised the jurors that in 

issuing his order unsealing the public record, he had included 

the following guidelines to be followed by anyone seeking a juror 

interview: 

 (a) no juror is under any obligation to 

grant an interview nor may any juror be 

compelled to do so; 

 (b) repeated requests of a juror for an 

interview by any person or any associate of 

that person are strictly prohibited; 

 (c) once a juror expresses a desire to 

conclude an interview already in progress, 

the interviewer must immediately cease all 

questioning; 

 (d) although . . . free to discuss any 

aspect of the case, [a juror] should be aware 

that no one may ask about the specific vote, 
statement, opinion, thoughts or comments of 

any juror other than [him/herself]. 

 As the court notes today, the first limitation is 

consistent with "the routine instructions" customarily given to 

jurors in the federal system. As an "instruction" or guideline, 

no findings are required before it is given. The court also 

notes that the fourth limitation directed to maintaining the 

confidentiality of the jury deliberations is, like the first, 

consistent with the provisions of the federal Handbook for Trial 

Jurors. The Handbook instructs the jurors that "the court may 

enter an order in a specific case that during any [post-verdict] 

interview, jurors may not give any information with respect to 

the vote of any other juror." Again, the Handbook does not 

require the district court to make any findings before it gives 

this instruction. In fact, the judge acknowledged the limited 

effect of this instruction when, during discussion of the 

contents of his proposed letter to the jurors, he informed 

counsel that "[i]f a juror freely chooses to disclose such 

information, so be it." United States v. Antar, 839 F. Supp. 

283, 305 (D. N.J. 1993). 

 In its second and third instructions, the court may 

have been excessively cautious in its effort to protect the 

jurors from harassment, embarrassment, or intimidation. The 

problem with the second instruction is that more than one or two 

requests may be made of a juror, depending upon the nuance, tone, 

and language of the interviewer, without harassing the juror. 
This instruction also disregards the possibility that each juror 

may have a different tolerance for harassment. Therefore, the 

language of this instruction is arbitrary and inflexible. 

 The third instruction does not allow for a situation 

where a juror may express a desire which is tentative or 

indecisive. This instruction does not give an interviewer a 

reasonable amount of latitude. Had the court limited its 

instructions to forbidding the interviewers from harassing, 

embarrassing, or intimidating a juror, the instructions would 

have been consistent with the concerns expressed by the Supreme 

Court and reflected in Federal Rule of Evidence 606(b). However, 

the instructions actually given here unduly limited the 

perimeters of a reasonably permissible interview. 

 In United States v. Moten, 582 F.2d 654 (2d Cir. 1978), 

the court of appeals considered an application for permission to 

conduct post-verdict juror interviews. The court observed that 

"the proper functioning of the jury system requires that the 

court protect jurors from being 'harassed and beset by the 

defeated party in an effort to secure from them evidence . . . to 

set aside the verdict.'" Id. at 664 (citing McDonald v. Pless, 

238 U.S. 264, 267 (1915)). In addition, the court recognized 

that certain limits on post-trial inquiry into jury verdicts are 

necessary in the interest of finality. Id. There is also a 

danger, noted in Moten, that some jurors instead of feeling 

harassed, might revel in the attention of a post-trial interview, 
especially if interviewed by the national press or media, and 

disclose secrets or express misgivings, lingering doubts, or even 

complaints about fellow jurors. This might lead jurors to 

"imagin[e] sinister happenings which simply did not occur or [to] 

say[] things which . . . would serve only to decrease public 

confidence in verdicts." Id. at 665. The court, therefore, 

concluded that supervision of interviews is desirable, not only 

to protect jurors from harassment, but also to insure that the 

inquiry does not range beyond subjects permissible for juror 

testimony under Fed. R. Evid. 606(b). 

 The notes of the Advisory Committee with respect to 

Fed. R. Evid. 606(b) support the district court's concern in this 

case. 

 The mental operations and emotional reactions 

of the jurors in arriving at a given result 

would, if allowed as a subject of inquiry, 

place every verdict at the mercy of jurors 

and invite tampering and harassment. 

 

 * * * * * 

 Under the federal decisions the central focus 

has been upon insulation of the manner in 

which the jury reached its verdict, and this 

protection extends to each of the components 

of deliberation, including arguments, 

statements, discussions, mental and emotional 

reactions, votes, and any other feature of 

the process. 

28 U.S.C.A. § 606(b). 

 I agree that the second and third instructions are an 

overstatement of the law which could unduly hamper a journalist 
in an appropriate interview. I reach this conclusion, not 

because there is an "absence of any finding by the court that 

harassing or intrusive interviews are occurring," (Maj. Op. at 

39) but because the limitations imposed by the court had the 

effect of forbidding permissible inquiries that may not reach the 

point of harassment, embarrassment, or intimidation. In giving 

instructions on unsupervised interviews of jurors, findings are 

not only unnecessary and burdensome, but potentially impossible 

because the interviews will be conducted in the future. We must 

bear in mind that the confidentiality of the thought processes of 

jurors, their privileged exchange of views, and the freedom to be 

candid in their deliberations are the soul of the jury system. 

This interaction must be zealously guarded from any impermissible 

encroachment if the system is to survive. If there is any 

material error of law in a court's instruction to the jurors, the 

injured party may obtain relief from the appellate court, as it 

did here. 

 Because I agree that the court erred in issuing 

instructions 2 and 3, I concur.