Filed: July 26, 2000

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Nos. 98-1212(L)

(CA-95-187-BR3-7)

Hurshel L. Ashcraft, et al,

Plaintiffs,

versus

CONOCO, Incorporated,

Defendant - Appellee,

Wilmington Star-News, Incorporated,

Appellant.

ORDER

The court amends its opinion filed July 6, 2000, as follows:

On page 31, second full paragraph, line 2 -- the phrase “an

did not give ....” is corrected to read “and did not give ....”

For the Court - By Direction

/s/ Patricia S. Connor

Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

HURSHEL L. ASHCRAFT, et al.,

Plaintiffs,

v.

CONOCO, INCORPORATED,

Defendant-Appellee,

WILMINGTON STAR-NEWS,

INCORPORATED,

Appellant,

and

KAYO OIL COMPANY; TRIANGLE

FACILITIES, INCORPORATED,

Defendants.

No. 98-1212

ASSOCIATED PRESS; THE NEWS &

OBSERVER; THE CHARLOTTE

OBSERVER; THE BALTIMORE SUN

COMPANY; RICHMOND TIMESDISPATCH; THE MCGRAW-HILL

COMPANIES, INCORPORATED; THE

WASHINGTON POST; GANNETT

COMPANY, INCORPORATED; DOW JONES

AND COMPANY, INCORPORATED; NORTH

CAROLINA PRESS ASSOCIATION; THE

REPORTERS COMMITTEE FOR FREEDOM

OF THE PRESS,

Amici Curiae.
HURSHEL L. ASHCRAFT, et al.,

Plaintiffs,

v.

CONOCO, INCORPORATED,

Defendant-Appellee,

KIRSTEN B. MITCHELL,

Appellant,

and

KAYO OIL COMPANY; TRIANGLE

FACILITIES, INCORPORATED,

Defendants.

No. 98-1213

ASSOCIATED PRESS; THE NEWS &

OBSERVER; THE CHARLOTTE

OBSERVER; THE BALTIMORE SUN

COMPANY; RICHMOND TIMESDISPATCH; THE MCGRAW-HILL

COMPANIES, INCORPORATED; THE

WASHINGTON POST; GANNETT

COMPANY, INCORPORATED; DOW JONES

AND COMPANY, INCORPORATED; NORTH

CAROLINA PRESS ASSOCIATION; THE

REPORTERS COMMITTEE FOR FREEDOM

OF THE PRESS,

Amici Curiae.

 2
HURSHEL L. ASHCRAFT, et al.,

Plaintiffs,

v.

CONOCO, INCORPORATED,

Defendant-Appellee,

WILMINGTON STAR-NEWS,

INCORPORATED,

Appellant,

and

KAYO OIL COMPANY; TRIANGLE

FACILITIES, INCORPORATED,

Defendants.

No. 98-1448

ASSOCIATED PRESS; THE NEWS &

OBSERVER; THE CHARLOTTE

OBSERVER; THE BALTIMORE SUN

COMPANY; RICHMOND TIMESDISPATCH; THE MCGRAW-HILL

COMPANIES, INCORPORATED; THE

WASHINGTON POST; GANNETT

COMPANY, INCORPORATED; DOW JONES

AND COMPANY, INCORPORATED; NORTH

CAROLINA PRESS ASSOCIATION; THE

REPORTERS COMMITTEE FOR FREEDOM

OF THE PRESS,

Amici Curiae.

 3
HURSHEL L. ASHCRAFT, et al.,

Plaintiffs,

v.

CONOCO, INCORPORATED,

Defendant-Appellee,

KIRSTEN B. MITCHELL,

Appellant,

and

KAYO OIL COMPANY; TRIANGLE

FACILITIES, INCORPORATED,

Defendants.

No. 98-1449

ASSOCIATED PRESS; THE NEWS &

OBSERVER; THE CHARLOTTE

OBSERVER; THE BALTIMORE SUN

COMPANY; RICHMOND TIMESDISPATCH; THE MCGRAW-HILL

COMPANIES, INCORPORATED; THE

WASHINGTON POST; GANNETT

COMPANY, INCORPORATED; DOW JONES

AND COMPANY, INCORPORATED; NORTH

CAROLINA PRESS ASSOCIATION; THE

REPORTERS COMMITTEE FOR FREEDOM

OF THE PRESS,

Amici Curiae.

 4
UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

KIRSTEN B. MITCHELL,

Defendant-Appellant,

ASSOCIATED PRESS; THE NEWS &

OBSERVER; THE CHARLOTTE

OBSERVER; THE BALTIMORE SUN

No. 98-4158

COMPANY; RICHMOND TIMESDISPATCH; THE MCGRAW-HILL

COMPANIES, INCORPORATED; THE

WASHINGTON POST; GANNETT

COMPANY, INCORPORATED; DOW JONES

AND COMPANY, INCORPORATED; NORTH

CAROLINA PRESS ASSOCIATION; THE

REPORTERS COMMITTEE FOR FREEDOM

OF THE PRESS,

Amici Curiae.

Appeals from the United States District Court

for the Eastern District of North Carolina, at Wilmington.

W. Earl Britt, Senior District Judge.

(CA-95-187-BR3-7)

Argued: October 27, 1998

Decided: July 6, 2000

Before WIDENER and LUTTIG, Circuit Judges, and

Catherine C. BLAKE, United States District Judge

for the District of Maryland,

sitting by designation.

_________________________________________________________________

Reversed by published opinion. Judge Luttig announced the judgment

of the court and wrote an opinion for the court in Parts I, IIB, IIC, and

 5
III, in which Judge Blake joined, and in Part III, in which Judge Widener joined in part. Judge Blake wrote an opinion concurring in part.

Judge Widener wrote a concurring and dissenting opinion.

_________________________________________________________________

COUNSEL

ARGUED: Floyd Abrams, CAHILL, GORDON & REINDEL, New

York, New York, for Appellants. Jonathan Drew Sasser, MOORE &

VAN ALLEN, P.L.L.C., Raleigh, North Carolina, for Appellee Conoco; David William Long, POYNER & SPRUILL, L.L.P., Raleigh,

North Carolina, for Appellee United States. ON BRIEF: Landis C.

Best, CAHILL, GORDON & REINDEL, New York, New York;

George Freeman, Assistant General Counsel, THE NEW YORK

TIMES CO., New York, New York; Mark J. Prak, BROOKS,

PIERCE, MCLENDON, HUMPHREY & LEONARD, L.L.P.,

Raleigh, North Carolina; Stephen T. Smith, MCMILLAN, SMITH &

PLYLER, Raleigh, North Carolina, for Appellants. David E. Fox,

Andrew B. Cohen, MOORE & VAN ALLEN, P.L.L.C., Raleigh,

North Carolina; George A. Phair, Senior Counsel, CONOCO, INC.,

Houston, Texas, for Appellee Conoco. Rodney A. Smolla, MarshallWythe School of Law, COLLEGE OF WILLIAM AND MARY, Williamsburg, Virginia, for Amici Curiae.

_________________________________________________________________

OPINION

LUTTIG, Circuit Judge:

The United States District Court for the Eastern District of North

Carolina held Kirsten B. Mitchell, a reporter for the Wilmington,

North Carolina Morning Star newspaper, in criminal contempt under

18 U.S.C. § 402 and civil contempt under 18 U.S.C. § 401 for opening an envelope, in which was enclosed a confidential settlement

agreement, and reading the agreement, which had been placed under

seal by the district court. The district court held the Morning Star in

civil contempt under 18 U.S.C. § 401 for reporting the previously

confidential settlement amount and imposed upon the newspaper,

 6
joint and severally with Mitchell, a fine of $600,000. Both Mitchell

and the Morning Star appeal from the district court's contempt orders.

We conclude -- and conclude that it could not reasonably be found

otherwise -- that the "decree" that Mitchell allegedly violated was not

a bona fide decree of a court, and that even if it were, not only was

the decree insufficiently specific to support a criminal contempt conviction, but Mitchell also did not act with the contumaciousness necessary to prove criminal contempt. We therefore reverse Mitchell's

criminal conviction. We also reverse the district court's orders of civil

contempt against both Mitchell and the Morning Star because the

sealing order upon which these punishments were premised failed to

comply with the requirements of our decision in In re Knight Publishing Company, 743 F.2d 231 (4th Cir. 1984).

I.

Plaintiff-appellee Conoco, Inc., and two of its subsidiaries (hereinafter "Conoco") were sued five years ago by 178 trailer park residents

in Wilmington, North Carolina, for allegedly contaminating the residents' drinking-water supply. The liability phase of this lawsuit concluded with a jury verdict in the residents' favor that found Conoco

liable for both compensatory and punitive damages. Before the jury

concluded its deliberations on the amount of punitive damages to be

awarded, however, Conoco and the residents reached a comprehensive and confidential settlement of the dispute in the amount of $36

million.

In order to preserve the confidentiality of the settlement terms,

Conoco and the residents moved the district court for permission to

file and maintain the settlement agreement and related documents

under seal. Four days later, on September 22, 1997, without having

provided public notice or an opportunity for interested parties to

object, the district court granted the motion "for good cause shown"

in a two-page order which was entered on the court's docket. J.A. 67-

68; 46-47. The settlement documents were thereafter delivered to the

district court in a closed white envelope, after which time the court

opened the envelope, signed the settlement agreement to indicate its

approval, and returned the agreement to the original envelope. The

 7
envelope was then delivered to the clerk's office to be placed with the

other documents related to the case. J.A. 77, 164.

Less than one month later, the Morning Star published a story disclosing the $36 million settlement amount agreed upon by Conoco

and the plaintiff-residents and memorialized in the settlement agreement between the parties. The story reported that "[s]ources familiar

with the settlement revealed its terms on condition of anonymity."

J.A. 432. It further reported that "[a] document confirming the settlement amount was among public documents given to a Morning Star

reporter [. . .] by a clerk at the federal courthouse in Raleigh." J.A.

432.1 The reporter referenced in the story was defendant-appellant

Kirsten B. Mitchell.

The day before the story ran in the Morning Star, Mitchell, who

previously had had no involvement with the case between Conoco

and the residents, J.A. 267, had been asked by her editor to go to the

clerk's office and review any documents in the case between Conoco

and the residents that had been filed "since the settlement." J.A. 533.

Upon arriving at the clerk's office, Mitchell asked to see

"[e]verything since the settlement" that was in the case file. J.A. 273.

In response, Anne Caviness, the deputy clerk responsible for the case,

brought to the clerk's office counter a "pile of documents," which

included the white envelope containing the sealing order and the confidential settlement agreement at issue in this case.2 Before handing

the pile of documents to Mitchell across the counter, however, Caviness removed a large brown envelope from the pile, informing Mitch-

_________________________________________________________________

1 The story was written by reporter Cory Reiss, who, using ordinary

reporting methods, learned of the settlement amount through two confidential sources. Reiss was subsequently held in civil contempt by the district court for refusing to divulge the identities of his sources. Reiss'

appeal, Ashcraft v. Conoco, Inc., No. 98-2567, is today decided by separate opinion.

2 At the contempt hearing, the clerk acknowledged that the confidential

settlement agreement "should not have been included in the documents"

provided to Mitchell. J.A. 172. The clerk explained that she "simply

inadvertently forgot to remove that document from the stack" because,

due to its white color, it had "blended in with all the other documents,"

unlike the brown envelope, which had "clearly stood out." J.A. 173.

 8
ell: "You can't have this, this is a sealed document." J.A. 533.

Mitchell responded "That's fine, I don't need to see that." J.A. 273.

According to Caviness, Mitchell assented with "absolutely . . . no

resistance. She was very cooperative." J.A. 182.

Mitchell then took the documents over to a bench in the clerk's

office, and began skimming through them, chronologically "from the

earliest to the most recent," according to her testimony. J.A. 274-75.

When Mitchell came to the white envelope containing the settlement

agreement, she saw the partial word and word "ENED OPENED,"

which appeared in red and white letters through a cellophane window

on the back of the envelope. J.A. 283, 293. As described by the district court in its January 1998 order:

The back of the envelope had a flap folded down from the

top and a window centered in the flap with the following letters appearing in red and white: "ENED OPENED". Just

adjacent to the flap appeared the following words in red:

"Caution: The word `OPENED' appears in the window

panel to indicate that the envelope has been opened."

J.A. 533. The envelope flap at this time was in the closed or down

position and was "tacked down" or "sticky," J.A. 281,3 but it is undisputed that the envelope had been opened "several times." J.A. 171

(Caviness testimony). Mitchell reached inside the envelope and

removed a document that turned out to be the settlement agreement

between Conoco and the plaintiff-residents. J.A. 292. The district

court's two-page September 22, 1997, sealing order was attached to

the front of the agreement. J.A. 532. The first page of this order

included the case caption and the following heading in bold:

_________________________________________________________________

3 Although the district court described the envelope flap as "sealed,"

J.A. 533, it is undisputed that the original seal had been broken and that

the partial word and word "ENED OPENED" appeared in the window

panel.

 9
ORDER GRANTING JOINT MOTION OF PLAINTIFFS AND

DEFENDANTS TO APPROVE

CONFIDENTIAL SETTLEMENT AGREEMENT,

TO DISMISS THIS ACTION AS SETTLED DISCONTINUED

AND ENDED,

AND TO PERMIT FILING AND MAINTENANCE OF

CONFIDENTIAL

SETTLEMENT DOCUMENTS UNDER SEAL

J.A. 67. The second page of the order stated that the settlement agreement and related documents were to "be filed and maintained confidentially under the seal of the Court." J.A. 68. Mitchell testified at the

contempt hearing that she did not recall either seeing or reading the

sealing order. J.A. 282, 292. In its January 1998 civil contempt order,

the district court found by clear and convincing evidence, however,

that Mitchell "saw the order sealing the terms of the Settlement

Agreement." J.A. 534. After reading the settlement agreement and

learning the $36 million figure paid to the plaintiffs by Conoco,

Mitchell returned the document to the white envelope and, according

to her testimony, "flipped [the envelope] over into [her] finished pile."

J.A. 284. Mitchell testified, and the district court did not hold to the

contrary, that she then noticed for the first time that on the front of

the envelope was the following warning in boldface type:

CONFIDENTIAL SETTLEMENT AGREEMENT

FILED UNDER SEAL

TO BE OPENED ONLY BY THE COURT

J.A. 434. This warning had been affixed to the front of the envelope

by a paralegal for Conoco's counsel; the specific language having

been suggested by an employee of the clerk's office. J.A. 158, 226.

The front of the envelope bore no indicia of a judicial order. At no

time did Mitchell attempt to ascertain from the clerk's office whether

the settlement agreement remained under seal. J.A. 534.

Mitchell spent a total of approximately 15-20 minutes looking

through the documents before returning them to the clerk. Mitchell

 10
then called her editor at the Morning Star and informed him of what

she had learned. J.A. 289.4

The following day, October 15, the Morning Star ran its story, in

which it disclosed the amount of the $36 million settlement. In the

story, reference was made to a "document confirming the settlement

amount." The referenced document was the confidential settlement

agreement seen by Mitchell the previous day.

Following publication of this story, Conoco moved the district

court for an order requiring Mitchell, Reiss, and the Morning Star to

show cause why they should not be held in contempt of court for violating the district court's September 22, 1997, sealing order. J.A. 69.

The United States Attorney for the Eastern District of North Carolina

also moved the district court for a show cause order for criminal contempt. J.A. 79. The United States Attorney subsequently withdrew

from the case because the Attorney General of the United States

refused to authorize the prosecution. And the district court appointed

a special counsel to prosecute the criminal contempt charges. J.A.

121-24.

The criminal and civil contempt motions were consolidated and

heard together before the district court on December 17, 1997. At the

conclusion of the hearing, the district court found Reiss and the Morning Star not guilty of criminal contempt. The district court, however,

found Mitchell guilty of criminal contempt and later fined her $1,000.

J.A. 393, 694. The district court took the civil contempt charges under

advisement, and subsequently issued an order and opinion on January

21, 1998, holding both Mitchell and the Morning Star in civil contempt. See J.A. 528-549, 550-555. The court ordered Mitchell and the

Morning Star, jointly and severally, to pay Conoco $500,000 in damages, plus costs and attorneys' fees, for a total fine of approximately

$600,000. J.A. 549. Mitchell and the Morning Star appealed.

_________________________________________________________________

4 As a result of Reiss' investigation, the amount of the $36 million settlement was already known to Mitchell's editor at the Morning Star

when he directed her to inspect the documents on file at the clerk's

office. J.A. 290.

 11
II.

In order to establish the offense of criminal contempt, the government must prove beyond a reasonable doubt that the defendant (1)

violated "a decree" (2) that was "definite, clear, specific, and left no

doubt or uncertainty in the minds of those to whom it was addressed,"

and (3) that, in doing so, the defendant acted "willfully, contumaciously, intentionally, [and] with a wrongful state of mind." United

States v. McMahon, 104 F.3d 638, 642 (4th Cir. 1997) (quoting Richmond Black Police Officers Ass'n v. City of Richmond, 548 F.2d 123,

129 (4th Cir. 1977)). We must in turn sustain a conviction for criminal contempt if "there is substantial evidence, taking the view most

favorable to the government," to support the conviction. See United

States v. Grubb, 11 F.3d 426, 433 (4th Cir. 1993) (quoting Glasser

v. United States, 315 U.S. 60, 80 (1942)).

A.

The threshold requirement of United States v. McMahon is that

there in fact be a "decree" of the court. The initial question for us,

therefore, is whether the order allegedly violated by Mitchell constituted a "decree" of the court at all. The special prosecutor argues to

us on appeal that the decree violated by Mitchell was the district

court's two-page order of September 22, 1997, in which the court

granted the parties' joint motion to approve the confidential settlement agreement, to dismiss the action, and to permit filing and maintenance of the settlement agreement under seal. Thus, he argues (in

response to Mitchell's suggestion that the exact decree violated was

a "moving target," see Br. for Appellant at 24) that "[t]he `decree'

violated by Mitchell was not a `moving target'-- it was the Order

sealing the Confidential Settlement Agreement," Br. of United States

at 14 (emphasis added), which the special prosecutor confirms one

page earlier in his brief that he understands to be the district court's

two-page sealing order that had been "clipped on top of the Confidential Settlement Agreement." Id. at 13. The special prosecutor even

represents that he "plainly stated as much in his final argument to the

district court," citing to his remarks that appear on pages 368 and 369

of the joint appendix. Id. at 14-15 (citing J.A. 368-369); compare id.

at 5 (citing different passage from colloquy with district court relating

to the government's argument as to Reiss, see note 6 infra, for same

 12
proposition that government argued to court that the sealing order was

the decree violated). And he contends that "[t]he district court . . .

never held that the admonition on the printed envelope was, by itself,

the court order that was the subject of the contempt." Id. at 15 n.7;

compare id. at 5 ("[T]he district court made clear that the judicial

order which was violated and which constituted the basis of the contempt proceeding was the Order, which sealed the Confidential Settlement Agreement." (citations omitted)); see also Br. of Conoco at 19

("The district court never held that the admonition on the printed

envelope was, by itself, a court order which Appellants were required

to obey.").

It is beyond question, however, not only that special prosecutor did

not argue before the district court that the decree violated was the

two-page sealing order, but also that the district court did not rest its

criminal contempt finding upon a violation of the two-page sealing

order.

The special prosecutor did not argue to the district court that the

decree violated was the two-page sealing order clipped to the settlement agreement. Rather, on the very pages from the joint appendix to

which he now cites the court, although he commented at length that

the two-page order was in the white envelope and that it was clipped

to the settlement agreement -- intentionally implying, but never actually stating that Mitchell had seen the two-page order -- the special

prosecutor quite plainly argued that the "decree" violated was that that

appeared on the front of the white envelope, which reads "CONFIDENTIAL SETTLEMENT AGREEMENT. FILED UNDER SEAL.

TO BE OPENED ONLY BY THE COURT.", not the two-page sealing order attached to the settlement agreement:

After looking through the settlement agreement and, by her

language, confirming the amount of the settlement agreement, she then turned the envelope over and, if it wasn't

clear to her before that that document was under seal, it

should have been clear afterwards because the document in

no uncertain terms, and this is the definite, clear, specific,

and left no doubt or uncertainty in the minds to those whom

it was addressed. It said, "CONFIDENTIAL SETTLEMENT

 13
AGREEMENT FILED UNDER SEAL. TO BE OPENED

ONLY BY THE COURT."

J.A. 369 (statements of Special Prosecutor Long); compare Br. of

United States at 16 ("The Order was definite and clear. In its caption,

the Order states "ORDER GRANTING MOTION . . . TO PERMIT

FILING AND MAINTENANCE OF CONFIDENTIAL SETTLEMENT DOCUMENTS UNDER SEAL."). Thus, at the precise

moment when the special prosecutor apprised the court of the order

that he contended satisfied the McMahon requirement that the decree

be "definite, clear, specific, and le[ave] no doubt or uncertainty in the

minds of those to whom it was addressed," the special prosecutor

identified not the two-page order, or even any language from that

order, but, rather, the directive that appears on the face of the white

envelope, which reads "CONFIDENTIAL SETTLEMENT AGREEMENT. FILED UNDER SEAL. TO BE OPENED ONLY BY THE

COURT."5

_________________________________________________________________

5 In every other instance, as well, in which the special prosecutor specifically identified the decree that he contended was violated, with the

possible exception of one, he likewise identified the decree as that

appearing on the face of the white envelope. Thus, for example, when the

court asked whether the order violated by the New York Times was "the

order on the document saying, "TO BE OPENED ONLY BY THE

COURT," the special prosecutor responded, "Yes, sir, absolutely; that is

our position." J.A. 371. And, as if to confirm that he was referring to the

language that had just been quoted by the court, Long added, "And our

position is that that could not be any more clear than it is." Id. Of course,

the two-page sealing order does not include any language to the effect

that it or anything it references is "TO BE OPENED ONLY BY THE

COURT." J.A. 67-68.

In the single instance in which the special prosecutor did arguably contend that the decree violated was the two-page order, he stated that "the

only issue is whether he [Reiss] violated docket number 196," which was

the two-page order. J.A. 373. This statement, however, was made in reference to Reiss, not in reference to Mitchell or to the New York Times.

Moreover, however clear this statement may appear to be when quoted

in isolation, it was anything but clear in the context of the colloquy

between the special prosecutor and the court. Almost immediately prior

to the special prosecutor's statement, the district court asked whether, for

 14
More importantly, just as plainly as the special prosecutor argued

that the decree violated was the directive on the front of the white

envelope, the district court plainly rested its criminal contempt finding exclusively upon violation of that directive, and not upon a violation of the two-page order. Thus, it is not so much, as the special

prosecutor and Conoco argue, that the district court "never held that

the admonition on the printed envelope was, by itself, the court order

that was the subject of the contempt"; it is that the district court never

held that anything other than the printed admonition was the subject

of the criminal contempt. As the district court explained:

[T]he only order of this court to which this [charge of criminal contempt] can be taken to apply [. . .] is the order with

regard to the sealing of the document which said "To be

opened only by the court. Placed under seal."

The confidentiality of the settlement agreement, as such,

is not an order of the court. What's the order of the court is

_________________________________________________________________

purposes of proving that a decree had been violated,"the decree of the

court . . . that I signed, that that document was not to be opened or `to

be opened only by the court'" was "the only order you [special prosecutor Long] have to -- you've got to hang your hat on." J.A. 372. Long

responded with unmistakable clarity that, "That's the only order we've

got to hang our hat on." J.A. 373. Despite this obvious assent to the district court's statement that the language violated was that that appeared

in the directive on the envelope, rather than that in the two-page order

inside the envelope, it was only three sentences later that the special

prosecutor stated that "the only issue is whether he [Reiss] violated

docket number 196."

Whether the special prosecutor was himself confused as to whether the

two-page sealing order included the language "TO BE OPENED ONLY

BY THE COURT"; whether he simply regarded the directive on the face

of the envelope and the two-page sealing order as one and the same; or

whether, as a strategic matter, he wished not to focus the court on the difference between the two in the event the court was unaware of the difference, we are not in a position to know. But it is clear beyond any

question that, at the pages to which he references the court, and generally

throughout his colloquy with the court, the special prosecutor argued that

the decree violated by Mitchell was the directive that appears on the face

of the white envelope.

 15
[that] this document in this envelope may not be opened

except by the court.

J.A. 392-93 (emphases added).6 Indeed, in a statement that, frankly,

gives us pause over the special prosecutor's representations as to his

own argument below and the basis for the district court's finding, the

district court specifically stated that it was "through candid admission

_________________________________________________________________

6 Elsewhere in its colloquy with the special prosecutor, the district court

similarly references as the decree that was violated the language that

appears on the outside of the white envelope. For example, in an apparent effort to force the special prosecutor to articulate precisely what order

was violated, the court asked: "Is it your position that the New York

Times violated that order; that is, the order on the document saying "TO

BE OPENED ONLY BY THE COURT[?]" J.A. 371. The special prosecutor responded that that was "absolutely" his position. See id.

The court never evinces during the hearing a clear understanding as to

whether the decretal language appears on the outside of the white envelope or within the text of the two-page sealing order. It actually appears,

however, that the court may have believed that the decretal language

"TO BE OPENED ONLY BY THE COURT" appeared within the twopage order. For example, the court stated at one critical point in the hearing that the special prosecutor was relying on "the decree of the court

. . . that I [the court] signed, that that document was not to be opened or

"TO BE OPENED ONLY BY THE COURT." J.A. 372. If the special

prosecutor understood that the directive on the face of the envelope and

the two-page sealing order were not one and the same, he certainly did

nothing to disabuse the district court of any misunderstanding under

which it was laboring. See supra note 6. Of course, to the extent, if any,

that the district court could be understood to have based Mitchell's criminal contempt conviction on such an order, then Mitchell certainly did not

violate any "decree" of the court because there was no decree that both

bore the court's signature and included the language, "TO BE OPENED

ONLY BY THE COURT."

As with the special prosecutor, we are not in a position to know why

the district court at times seems to have conflated the directive that

appeared on the envelope and the two-page sealing order. Regardless of

the reason, however, it is clear, as we explain in text, that, throughout the

hearing, the district court always believed that it was the directive's language "TO BE OPENED ONLY BY THE COURT" that constituted the

violated decree of the court.

 16
from Mr. Long [the special prosecutor]" that it had concluded that the

only decree to which the criminal contempt charge could relate was

the directive on the face of the white envelope. J.A. 392.7

_________________________________________________________________

7 Even were we to conclude that the two-page sealing order was the

decree violated, we would yet reverse Mitchell's criminal contempt conviction as unsustainable under McMahon, because of the ambiguity of

that order generally, and the ambiguity of its reach to Mitchell in particular, as a non-party to the underlying litigation. The portion of this order

that the special prosecutor argues constitutes a sufficiently clear decree

is the order's caption, which reads in full as follows:

ORDER GRANTING JOINT MOTION OF PLAINTIFFS AND

DEFENDANTS TO APPROVE CONFIDENTIAL SETTLEMENT

AGREEMENT, TO

DISMISS THIS ACTION AS SETTLED DISCONTINUED AND

ENDED, AND TO

PERMIT FILING AND MAINTENANCE OF CONFIDENTIAL

SETTLEMENT AGREEMENT UNDER SEAL.

J.A. 67. That the court had merely granted a motion to "approve" a confidential settlement agreement would not apprise even a party, much less

a third person, that he was bound not to disclose the contents of that

agreement; such an order merely evidences that the court had approved

the fact and terms of the parties' settlement agreement. That the court

had granted a motion to "permit filing" of the agreement under seal similarly would not necessarily apprise a party or a third person that he was

bound to nondisclosure; such simply evidences that the court had authorized the parties to file the agreement under seal with the court, not even

that the agreement actually had been filed under seal. That the court had

granted a motion to "permit maintenance" of the agreement under seal

would, at most, only apprise a reader that the court had granted the parties permission to maintain the agreement under seal; it would not necessarily apprise either that the court itself had ordered the agreement

maintained under seal or that the agreement was currently being maintained under seal. Even if the granted motion as to maintenance could be

understood as an order of the court to maintain the agreement sealed, it

would certainly not necessarily apprise a third person that he was not free

to disclose the contents of the agreement, as such an order would most

reasonably be understood as an order directed solely to the personnel of

the court, and, at most, to the court's personnel and the parties to the litigation. Indeed, the second page of the district court's two-page sealing

order all but confirms as much:

IT IS FURTHER ORDERED that the Confidential Settlement

Agreement, the exhibits thereto, and any documents of the Clerk

 17
Accordingly, it is apparent that Mitchell's criminal contempt conviction rested upon a finding by the district court that Mitchell violated the "decree" that appeared on the face of the white envelope,

which reads "TO BE OPENED ONLY BY THE COURT."

It is evident from the record, however, that this "decree" was not

a decree or an order of the court at all. Rather, as noted previously,

this language was affixed to the white envelope by one of Conoco's

paralegals, with the knowledge and advice of a clerk's office staff

member, but, insofar as the record reveals, not upon her instruction

or the derivative instruction of the court. The district court played no

role whatever in drafting the directive or in affixing the directive to

the front of the envelope. Nor did the district court sign the warning

or direct that it be placed on the front of the envelope. The warning

bore neither a name nor a signature of any other judicial officer, or

any date of any judicial action. And the warning was never entered

on the court's docket. Given that Conoco's paralegal was not vested

with any authority over court personnel, the warning cannot even be

characterized as "a directive to court personnel and clerk's office

employees," Appellants' Br. at 24.8 

B.

Even were the warning "TO BE OPENED ONLY BY THE

COURT" a "decree" or court order, we would still conclude that there

_________________________________________________________________

of Court and the Parties filed in the future and relating to the

management and evaluation of the settlement, including the custody and distribution of settlement funds, be filed and maintained

confidentially under the seal of the Court.

J.A. 532.

8 In concluding as we do that Mitchell's criminal conviction must be

reversed since the "decree" or order on which it was based was not even

a court order or "decree" at all, we emphasize that we would not reach

the same conclusion (at least for this particular reason) were the "decree"

or order shown to be simply invalid or unconstitutional. The mere invalidity or unconstitutionality of the underlying court order is insufficient

to warrant overturning a criminal contempt conviction. See Maness v.

Meyers, 419 U.S. 449, 458-59 (1975); Walker v. City of Birmingham,

388 U.S. 307, 315, 320-21 (1967).

 18
is insufficient evidence to sustain Mitchell's conviction, because the

other two elements required to prove criminal contempt -- that the

order be "definite, clear, specific" and that the defendant have "willfully, contumaciously, [and] intentionally" violated the order -- have

likewise not been proven beyond a reasonable doubt.

With respect to the second element, we conclude that there is not

substantial evidence to support a conclusion that the warning "TO BE

OPENED ONLY BY THE COURT" is "definite, clear,[and] specific," much less that it so clear as to "le[ave] no doubt or uncertainty

in the minds of those to whom it was addressed," within the meaning

of McMahon. Most significantly insofar as this case is concerned,

even assuming that this warning could be understood to clearly and

definitely extend to persons other than court personnel (which is questionable), this warning could reasonably be understood as informing

a reader either that the envelope may only be first opened by the court

or that the envelope may never be opened by anyone other than the

court. That is, one could quite reasonably read "TO BE OPENED

ONLY BY THE COURT" as referring only to the initial opening of

the envelope or as referring to any opening of the envelope itself,

whether the initial or a successive opening. That the former understanding of the warning is plausible is critical in this case, given that

when Mitchell first picked up the white envelope from the pile of documents provided her by Caviness, it is undisputed that the partial

word and word "ENED OPENED" appeared prominently in red and

white letters through a cellophane window on the envelope's flap.

Thus, even assuming that Mitchell saw the warning before taking the

contents from the envelope and that the warning was a bona fide

decree, she could reasonably have believed that she was not in violation of that decree since the envelope had already been "OPENED."

Indeed, Caviness testified that the envelope had been "entered several

times." J.A. 171.

C.

With respect to the third element, we also conclude that there was

insufficient evidence to support the conclusion that Mitchell acted

"willfully, contumaciously, intentionally, [and] with a wrongful state

of mind," as required under McMahon. The events from which one

could infer contumaciousness are as follows.

 19
Upon arriving at the clerk's office on the morning of October 14,

1997, Mitchell asked to see "everything" filed in the dispute between

Conoco and the plaintiff-residents "since the settlement." J.A. 273.

The deputy clerk, Anne Caviness, returned from behind the counter

with a "pile of documents." J.A. 273. In Mitchell's presence, before

handing the pile to Mitchell, Caviness removed a brown envelope

from the stack and said to Mitchell, "You can't have this, this is a

sealed document," J.A. 178, 533, to which Mitchell replied, "That's

fine, I don't need to see that." J.A. 273. Caviness testified that Mitchell assented to her instructions with "[a]bsolutely [. . .] no resistance.

She was very cooperative." J.A. 182.

Mitchell thereafter took the pile of documents to a bench in the

clerk's office and turned through them, eventually coming to the

white envelope at issue, which Caviness acknowledges was "inadvertently" included in the stack of documents due to its white color. J.A.

172-173. Whether or not she saw first the front of the envelope bearing the directive "TO BE OPENED ONLY BY THE COURT," see

note 9 infra, Mitchell saw on the back of the envelope a cellophane

window in which appeared the partial word and word"ENED

OPENED" and the warning "Caution: The word`opened' appears in

the window panel to indicate that the envelope has been opened." As

the district court described:

The back of the envelope had a flap folded down from the

top and a window centered in the flap with the following letters appearing in red and white: "ENED OPENED". Just

adjacent to the flap appeared the following words in red:

"Caution: The word `OPENED' appears in the window

panel to indicate that the envelope has been opened."

J.A. 533. The envelope flap was "tacked down" or "sticky," J.A. 281,

but the seal had been broken and the envelope opened several times.

J.A. 171. Mitchell lifted the flap and removed from the envelope the

settlement agreement. Attached to the settlement agreement was the

district court's two-page sealing order, which the district court found

that Mitchell saw. J.A. 532-534. After reading the settlement agreement and learning of the $36 million settlement amount, Mitchell

reinserted the document to the white envelope, returned the docu-

 20
ments to the deputy clerk, and left the clerk's office, whereupon she

telephoned her editor with the information she had learned.

Based upon this sequence of events, we are convinced that no reasonable trier of fact could conclude that Mitchell acted with the contumaciousness necessary to support a conviction for criminal

contempt. There is simply no evidence whatsoever in this sequence

of events from which one could even infer an intent to violate a court

order of confidentiality, at least absent a finding that Mitchell actually

saw the directive on the face of the white envelope prior to opening

the envelope and reviewing the contents, which the district court did

not find.9 Therefore, we conclude that no rational trier of fact could

_________________________________________________________________

9 Although for purposes of the civil contempt citations against Mitchell

and the Morning Star, the district court found that "Mitchell was aware

that the envelope warned that it was TO BE OPENED ONLY BY THE

COURT before she reported its contents to her superiors at the Morning

Star." J.A. 534 (emphasis added), for purposes of Mitchell's criminal

contempt conviction, the district court made no specific finding on

whether Mitchell saw the directive before or after she reviewed the envelope's contents, and no specific finding was required pursuant to Fed. R.

Crim. P. 23(c).

Ordinarily, we would ascribe to the district court a finding that it necessarily must have made -- here, for example, a finding that Mitchell

saw the directive on the face of the white envelope before she opened the

envelope and reviewed its contents. In this case, however, because the

district court may well have believed (albeit in error) that the directive

reading "TO BE OPENED ONLY BY THE COURT" appeared on the

two-page sealing order, rather than on the envelope, see note 6 supra, it

is not necessarily the case that the district court found that Mitchell saw

the directive before reviewing the envelope's contents. That is, even

though the district court clearly concluded that it was the directive on the

face of the envelope that Mitchell violated, the fact that the court may

have believed that that directive appeared on a document inside the envelope makes it impossible for us to conclude that the district court necessarily found what otherwise it would necessarily have had to find.

And indeed, we believe it likely that the district actually believed that

Mitchell did not see the directive before opening the envelope, based

upon the district court's finding, for purposes of Mitchell's civil contempt, only that she was aware of the directive "before she reported its

 21
find beyond a reasonable doubt that Mitchell willfully and contumaciously, and with intent, violated a judicial order.

If anything, in our view, the above sequence of events all but confirms that Mitchell acted wholly innocently, and certainly innocently

insofar as the law is concerned.

First, Mitchell had had no prior involvement with the case between

Conoco and the plaintiff-residents before she was asked simply to go

to the clerk's office to check for recent filings. Second, upon arriving

at the clerk's office, Mitchell only requested from Deputy Clerk Caviness documents filed "since the settlement," a request which, on its

face (at least arguably) elicited only documents filed after the settlement agreement was approved. Third, Mitchell reasonably would

have assumed from the outset that the documents the deputy clerk

brought to the counter were documents to which she was entitled to

have access. Fourth, certainly after the deputy clerk, in Mitchell's

presence, physically removed one envelope from the document stack

specifically on the ground that the document was sealed, Mitchell

would have had every reason to believe that the remaining documents

were publicly available, the clerk's diligence having been proven.

Fifth, at least initially, Mitchell could have reasonably believed, from

the fact that the envelope in which the settlement agreement was

enclosed was white and that the sealed document removed from the

stack by the deputy clerk was enclosed in a brown envelope, that the

contents of the white envelope were not sealed. Sixth, Mitchell not

only could have reasonably believed, but would have most reasonably

believed, from the fact that the white envelope had been opened and

indicated that it had been opened, that the enclosed documents were

publicly available. Indeed, we are of the view that, from the combination of these facts -- and in particular the facts that Mitchell was pro-

_________________________________________________________________

contents to her superiors at the Morning Star." J.A. 534. We think it

highly unlikely that the district court was willing to find by a preponderance of the evidence for purposes of the civil contempt citation only that

Mitchell saw the directive on the face of the white envelope sometime

before telephoning her editor but, for purposes of the criminal contempt

conviction, found beyond a reasonable doubt that Mitchell in fact saw

the directive before she opened the envelope and reviewed its contents.

 22
vided the documents by an official of the court in response to a

request for publicly available documents, that the deputy clerk had

removed a sealed document from the pile in Mitchell's presence, and

that the white envelope had been opened (as reflected by the cellophane window legend) -- it would occur to few, if any, in Mitchell's

position that the settlement agreement was anything but a publicly

available document.

Accordingly, because we conclude that the district court's findings

as to none of the three elements of the criminal offense of contempt

are supported by the requisite substantial evidence, Mitchell's criminal contempt conviction is reversed.

III.

The district court, by separate order of January 21, 1998, also held

Mitchell and the Morning Star in civil contempt for violating, not the

directive that appears on the white envelope, but the court's September 22, 1997 sealing order itself. To establish civil contempt, each of

the following elements must be shown by clear and convincing evidence:

(1) the existence of a valid decree of which the alleged contemnor had actual or constructive knowledge; (2) . .. that

the decree was in the movant's "favor"; (3) . . . that the

alleged contemnor by its conduct violated the terms of the

decree, and had knowledge (at least constructive knowledge) of such violations; and (4) . . . that [the] movant suffered harm as a result.

Colonial Williamsburg Found. v. The Kittinger Co., 792 F. Supp.

1397, 1405-6 (E.D. Va. 1992), aff'd, 38 F.3d 133, 136 (4th Cir. 1994).

We review the district court's civil contempt order for abuse of discretion. Colonial Williamsburg Found., 38 F.3d at 137.

In their consolidated appeals, Mitchell and the Morning Star contend that the evidence before the district court was insufficient to hold

them in civil contempt. First, they argue that the district court's September 1997 sealing order was not a "valid decree." Second, they

 23
argue that neither Mitchell nor the Morning Star had actual or constructive knowledge of the court's sealing order. Third, they argue

that neither contemnor knowingly violated the sealing order. And

fourth, they argue that Conoco suffered no legally cognizable harm

as a result of their conduct. See Appellants' Br. at 26-32. Because we

agree that the district court's September 1997 sealing order does not

constitute a "valid decree" for purposes of the court's civil contempt

orders, we also reverse these contempt findings as to both appellants.

Although the district court based its criminal contempt finding on

a violation of the warning on the front of the white envelope, as we

explain supra, in its January 1998 order holding Mitchell and the

Morning Star in civil contempt, the district court clearly based its

civil contempt findings on a violation of the two-page order that was

attached to the settlement agreement and placed inside the white

envelope. See J.A. 536 ("[C]ivil contempt can only arise in this case

from conduct contravening the court's written order sealing the Settlement Agreement."); see also J.A. 554 (stating in civil judgment that

"Kirsten B. Mitchell and the Morning Star did act in contempt of this

court in violating the order of this court dated 22 September 1997

sealing the terms of the confidential settlement agreement").10

Although there is no doubt that the court's sealing order itself constitutes a judicial order, appellants challenge the validity of the order

based on the district court's failure to abide by the procedures for

sealing court documents established by this court in In re Knight Publishing Company, 743 F.2d 231 (4th Cir. 1984), and reiterated in

Stone v. University of Maryland Medical Systems Corporation, 855

F.2d 178 (4th Cir. 1988).

In Knight, we explained that, while a district court "has supervisory

_________________________________________________________________

10 Thus, although the district court's memorandum opinion with respect

to the civil contempt proceeding does make reference to the language

that appeared on the front of the white envelope, see, e.g., J.A. 534 (stating in "Findings of Fact" that "Mitchell was aware that the envelope

warned that it was TO BE OPENED ONLY BY THE COURT before

she reported its contents to her supervisors at the Morning Star), it is

clear that the decree that the district court concluded was violated for

purposes of the civil contempt finding was the two-page order that

appeared inside the envelope.

 24
power over its own records and may, in its discretion, seal documents

if the public's right of access is outweighed by competing interests,"

the "presumption" in such cases favors public access. Knight, 743

F.2d at 235; see also Stone, 855 F.2d at 182 ("The public's right of

access to judicial records and documents may be abrogated only in

unusual circumstances"). Accordingly, before a district court may seal

any court documents, we held that it must (1) provide public notice

of the request to seal and allow interested parties a reasonable opportunity to object, (2) consider less drastic alternatives to sealing the

documents, and (3) provide specific reasons and factual findings supporting its decision to seal the documents and for rejecting the alternatives. See Knight, 743 F.2d at 235-36; see also Stone, 855 F.2d at

181. These procedures "must be followed when a district court seals

judicial records or documents." Stone, 855 F.2d at 179-80, 182.

The district court in this case did not comply with the requirements

set forth in Knight and Stone for sealing court documents. Despite the

Morning Star's demonstrated interest in the case, no public notice of

the parties' joint motion to seal the settlement agreement was given;

no opportunity for interested parties to object was provided; there is

no indication that the district court considered less drastic alternatives

to sealing the agreement; and the court's sealing order did not identify

any specific reasons or recite any factual findings justifying the

court's decision to override the public's right of access to the settlement documents. Since the mandatory procedures established by this

court in Knight for sealing court documents were not followed by the

district court before it issued its September 1997 sealing order, that

order does not constitute a "valid decree," and therefore it cannot

serve as a basis to sustain the court's civil contempt rulings. See

McLean v. Central States Pension Fund, 762 F.2d 1204, 1210 (4th

Cir. 1985) ("reversal of the underlying order ordinarily invalidates

any civil contempt sanctions predicated thereon") (citing ITT Community Dev. Corp. v. Barton, 569 F.2d 1351, 1356 (5th Cir. 1978) (citing

cases)). Accordingly, the district court's findings of civil contempt as

to both Mitchell and the Morning Star, together with the sanction

imposed therefore are reversed.11

_________________________________________________________________

11 Since we reverse the district court's criminal and civil contempt

orders for insufficiency of the evidence, we decline to address the appel-

 25
IV.

It is to be expected in a highly charged case such as this, that on

occasion the parties will ascribe to each other positions that they do

not espouse or espouse passionately in the heat of battle but only halfheartedly outside the fray. Appellees accuse the appellants in this case

of "waging a First Amendment battle" for a special privilege in the

press to access confidential information in the hands of government,

a view seemingly shared by the district court. For their part, the press

defendants accuse the special prosecutor and Conoco of conspiring to

subvert the important values of the First Amendment, at times unmistakably lacing their arguments with overtones of special privilege.

Ultimately, however, even they disavow that they claim any "special

right of access" to sealed material that is unavailable to the public

generally, and it is on the neutral ground represented by this disavowal that we resolve the current dispute. For all of the parties agree

that the press, whether or not it enjoys special privileges, enjoys no

fewer privileges than other citizens interested in, and entitled to information about, their government. And we hold today only that no citizen in this country, media or otherwise, may be criminally (and

civilly) punished for the conduct that occurred here.

A citizen who requests public documents from an officer of the

court, who herself evidences diligence in safeguarding the confidences of the court, and is given an envelope that once was sealed but

has been previously opened and is at the time open and denominated

as such, is entitled to presume that that envelope and its contents are

publicly available material, at least absent proof of knowledge otherwise. No citizen is responsible, upon pain of criminal and civil sanction, for ensuring that the internal procedures designed to protect the

legitimate confidences of government are respected.

_________________________________________________________________

lants' additional arguments that the district court lacked jurisdiction to

hold them in contempt, that the district court violated fundamental principles of separation of powers in appointing a special prosecutor to prosecute the criminal contempt charges, and that the district court's

contempt orders violated the appellants' rights under the First Amendment.

 26
For the reasons stated herein, the judgment of the district court is

hereby reversed.

REVERSED

BLAKE, District Judge, concurring in part:

I concur in the reversal of Mitchell's criminal contempt conviction.

Specifically, I concur in Part II(C) of Judge Luttig's opinion finding

insufficient evidence to support the conclusion that Mitchell acted

"willfully, contumaciously, intentionally [and] with a wrongful state

of mind" as required under United States v. McMahon, 104 F.3d 638,

642 (4th Cir. 1997) (quoting Richmond Black Police Officers Ass'n

v. City of Richmond, 548 F.2d 123, 129 (4th Cir. 1977)). As to Part

II(B), while the language "TO BE OPENED ONLY BY THE

COURT" is "clear" in a literal sense, McMahon teaches that we must

consider the entire factual background and the defendant's own circumstances rather than "some hypothetical situation." Id. at 643. On

the facts of this case, including the court clerk's handing to Mitchell

a pile of documents after removing one with the statement "You can't

have this, this is a sealed document," and the appearance of the word

"OPENED" in the cellophane window indicating that the envelope

Mitchell was handed had already been opened, I agree there is not

sufficient evidence to support a conclusion that the order was "definite, clear, [and] specific, [leaving] no doubt or uncertainty in the

minds of those to whom it was addressed." Id. at 642. For these reasons I concur in Part II(B). I would not reach the first element of the

offense and therefore do not join in Part II(A).

I concur in Part III of Judge Luttig's opinion, finding the September 1997 sealing order invalid, and therefore agree that the civil contempt findings and sanctions as to both Mitchell and the Morning Star

must be set aside.

WIDENER, Circuit Judge, concurring and dissenting:

I.

I concur in such parts of Part III of the majority opinion, as hold

the September 1997 sealing order to be invalid. For that reason alone

 27
I concur in the vacation of the civil contempt convictions of Miss

Mitchell and the Morning Star.

II.

With respect to the balance of the decision, however, and especially Part II, I respectfully dissent. I would affirm the conviction of

Miss Mitchell for criminal contempt.

The majority initially engages in an eight-page discussion (including more than three pages of single-spaced footnotes) of whether Miss

Mitchell was found guilty of criminal contempt for violating the twopage order of September 22, 1997 or what the majority calls the "directive that appears on the face of the white envelope." Ultimately,

the majority correctly concludes that the district court decided that

Miss Mitchell violated the instructions on the outside of the envelope

containing the settlement agreement, which envelope she had to open

to see the settlement agreement. Those instructions were:

CONFIDENTIAL SETTLEMENT AGREEMENT

FILED UNDER SEAL

TO BE OPENED ONLY BY THE COURT

The lengthy justification for finding the order Miss Mitchell was

charged with violating to be that which was written on the face of the

envelope containing the settlement agreement and the order approving

the settlement agreement, is quite beside the point, I suggest, for the

district court, referring to the order involved, stated, in English as

plain as the order itself,

the order of this court is [that] this document in this envelope may not be opened except by the court. (Italics added.)

The majority then finds that the order was not a court order for the

purposes of a finding of contempt because the wording of the warning

on the envelope had been placed there by a paralegal at the direction

of the case manager, a deputy clerk of the court; the judge played no

role in drafting the language on the front of the envelope and did not

sign the front of the envelope, which did not bear his name on the

face thereof; and the warning was never entered on the court's docket.

 28
Some of those reasons are without factual support, and the others

are matters of indifference. The paralegal who made the entry on the

back of the envelope did so at the direction of Anne Caviness, a deputy clerk of many years, the case manager of this case, whose duty

it was to see that the envelope was marked and sealed. "Well, it's a

sealed document so I was responsible that it be marked and sealed."

(J.A. 169) If this deputy clerk and case manager was not acting for

the district judge, federal judges may as well cease to function, for no

judge can attend to the thousands of details of his office without clerical assistance, be it a secretary or deputy clerk. It is a matter of common knowledge that district judges do not personally draft many or

even most of their orders. The order which was signed by the district

judge, and which was enclosed in the envelope, states unequivocally,

in capitals at the outset, that it permits the "FILING AND MAINTENANCE OF CONFIDENTIAL SETTLEMENT DOCUMENTS

UNDER SEAL" and further, in the text of the order, that the "Confidential Settlement Agreement, the exhibits thereto, and any documents of the Clerk of Court and the parties filed in the future . . .

relating to . . . the settlement . . . be filed and maintained confidentially under the seal of the court." The white envelope in question here

contains on the face thereof the clerk's notation of docket no. 196.

No. 196 is the docket number of the order granting the joint motion

to approve the settlement agreement. To separate the warning on the

face of the envelope from the contents thereof, I suggest, is straining

too far to justify an acquittal.

The majority next finds that the warning on the envelope:

CONFIDENTIAL SETTLEMENT AGREEMENT

FILED UNDER SEAL

TO BE OPENED ONLY BY THE COURT

is not "definite, clear, specific." In my opinion, the warning could

hardly have been more definite, or clear or specific, and construing

that such a warning is equivocal is simply more straining to justify a

reversal as is its statement that Miss Mitchell might have thought the

opening referred to was an initial rather than a subsequent opening.

Even Miss Mitchell did not make this claim in her testimony. She

claimed that she had not seen the warning on the front, so she could

 29
not have related the word "opened" on the back to the front, which

she had not seen.

The majority applies much the same reasoning to the fact that even

if the order was valid and the direction was clear, Miss Mitchell did

not act with "a contumaciousness necessary to support a conviction

for criminal conduct." It arrives at this conclusion because the district

court did not make a specific fact-finding that "Mitchell actually saw

the directive on the face of the white envelope prior to opening the

enclosure and reviewing its contents." Such a requirement of the

majority, that a district court in a criminal case make specific factfindings absent request, is simply in violation of Fed. R. Crim. P.

23(c) and case authority. United States v. Bolles, 528 F.2d 1190, 1191

(4th Cir. 1975).

The majority's conclusion that the evidence does not support the

conviction is phrased as follows: " . . . we are convinced that no reasonable trier of fact could conclude that Mitchell acted with contumaciousness necessary to support a conviction . . . ." To arrive at that

conclusion, the majority relied to a considerable extent on the testimony of Miss Mitchell, an example of which follows: "Mitchell testified, and the district court did not hold to the contrary, that she then

noticed for the first time that on the front of the envelope was the following warning in bold face type . . . ." Of course, the district judge

who saw Miss Mitchell and heard her testify necessarily did not

believe her. The required supposition of the majority is that it believes

the district judge did not act as a reasonable trier of fact, as it states

in its opinion. The fact that a district court does not hold to the contrary of the statement of a defendant denying guilt in a criminal case

should be of no moment, much less very nearly controlling, as here.

The reliance of the majority on the testimony of Miss Mitchell is

also demonstrated by the physical attributes of the papers involved

and, as well, by its construction of the testimony of Anne Caviness,

who, as noted, was the case manager and deputy clerk of the district

court.

On page 9 of the slip opinion, the majority states that "it is undisputed that the envelope had been opened `several times'," for which

it relies on the testimony of Anne Caviness. That testimony of Anne

 30
Caviness, however, was taken at the show-cause hearing on account

of the contempt citation, which hearing was held December 17, 1997.

Her testimony was "I know this document, this envelope [the paper

involved] has been entered several times." So Anne Caviness did not

testify that the document had been entered several times before October 14, 1997, when Miss Mitchell opened it, but several times before

December 17, 1997, the date of the hearing.

A description of the white envelope involved and the contents of

the envelope is helpful. The envelope is of sturdy white paper, 8-3/4"

in width and 11-3/4" in length, with the flap for opening on the 8-3/4"

side. The seal is a red pressure-sensitive seal attached to the flap, with

the word "opened" inked in pressure-sensitive material on the red seal

and on a window in the flap made of clear plastic, so that when the

envelope is opened, the ink remains on the envelope and when resealed, the word "opened" appears in white in the window. In the

envelope was the order of two pages approving the confidential settlement, which was signed by Judge Britt on September 18, 1997. A filing stamp on that order, as well as the envelope, shows that it was

filed in the clerk's office on September 22, 1997, the date of the

docket entry, and the envelope was stamped received in the clerk's

office on September 18, 1997, the same day that Judge Britt signed

the order. Clipped to the two-page order is the confidential settlement

agreement of nine pages, accompanied by Exhibits A through H, of

28 pages. Thus, the envelope which Miss Mitchell opened was not

merely an innocuous, ordinary envelope, as might be supposed, rather

a somewhat bulky envelope containing the two-page order of the district court, accompanied by 37 pages of other material. Whether or

not the envelope had been opened by anyone else prior to the time

Miss Mitchell opened it does not appear in the record with any consistency, but should not be determinative of this case. An examination

of the envelope and its contents makes her testimony, that she examined the back of the envelope but not the face of it, very nearly inherently incredible, and, in all events, corroborates the necessary finding

of the district court that she opened the envelope in violation of the

express direction on its face.

In sum, it is my opinion that the majority simply believed the testimony of Miss Mitchell and did not give sufficient weight to the fact

that the district judge who tried the case, saw the defendant-witness,

 31
and heard her testimony. In addition, the district court was construing

its own order. That is admitted. In such a case, we must defer to the

district court in the construction of its own order, which was not done

by the majority. Anderson v. Stevens, 875 F.2d 76, 80 n.8 (4th Cir.

1989); Simmons v. South Carolina Ports Authority , 694 F.2d 63, 66

(4th Cir. 1982).

I would find that the district court permissibly construed its own

order and that the evidence was sufficient to support the conviction.

It is idle to suggest that a jury's verdict on the same facts would be

overturned for lack of evidence and the defendant should fare no better in this case.

I would affirm.*

_________________________________________________________________

* I also note that in footnote 11 of the majority opinion it declines to

address the additional argument or arguments that the district court

lacked jurisdiction. It did this because it reversed for insufficiency of the

evidence. If the district court did not have jurisdiction, it would have

been unable to make any finding on the sufficiency of the evidence, and

the proper result would have been to require the district court to dismiss

the case for want of jurisdiction. See Fed. R. App. P. 12(h)(3). It is true

that the procedure adopted by the majority is in accord with our previous

practice, as illustrated in Richardson v. McFadden, 563 F.2d 1130 (4th

Cir. 1977) (en banc), but that practice has not survived Firestone Tire &

Rubber Co. v. Risjord, 449 U.S. 368, 379 (1981), which is consistent

with the concurring opinions in Richardson and requires a finding as to

jurisdiction prior to a consideration of other error.

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