1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-19-1997

United States v. Smith, et al.

Precedential or Non-Precedential:

Docket 97-5176

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Recommended Citation

"United States v. Smith, et al." (1997). 1997 Decisions. Paper 198.

http://digitalcommons.law.villanova.edu/thirdcircuit_1997/198
iled August 19, 1997 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

NO. 97-5176 

UNITED STATES OF AMERICA 

v. 

J. DAVID SMITH; STEVEN D'ANDREA; 

JOSEPH LA PORTA 

*GTECH, INTERVENOR IN D.C. 

NEWARK MORNING LEDGER CO.; COX TEXAS 

PUBLICATIONS, INC.; DALLAS MORNING NEWS, INC., 

INTERVENORS IN D.C., 

APPELLANTS

*Amended 5/15/97 

On Appeal From the United States District Court 

For the District of New Jersey 

(D.C. Crim. No. 94-cr-00524) 

Argued: June 6, 1997 

Before: BECKER and SCIRICA, Circuit Judges, and 

KELLY, District Judge.** 

(Filed August 19, 1997) 

_________________________________________________________________ 

**Honorable James McGirr Kelly, United States District Judge for the 

Eastern District of Pennsylvania, sitting by designation. 
DONALD A. ROBINSON, ESQUIRE 

STEVEN L. LAPIDUS, ESQUIRE 

 (ARGUED) 

KEITH J. MILLER, ESQUIRE 

Robinson, Lapidus & Livelli 

Two Penn Plaza East, Suite 1100 

Newark, NJ 07105-2237 

Attorneys for Appellants Newark

Morning Ledger Co., Publisher of The 

Star-Ledger, Cox Texas Publications,

Inc., Publisher of the AustinAmerican Statesman, and the Dallas

Morning News, Inc., Publisher of The 

Dallas Morning News 

Of Counsel: 

JONATHAN D. HART, ESQUIRE 

MICHAEL KOVAKA, ESQUIRE 

Dow, Lohnes, & Albertson, PLLA 

1200 New Hampshire Avenue, NW 

Suite 800 

Washington, DC 20036-6082 

For Cox Texas Publications, Inc.,

Publisher of the Austin-American 

Statesman 

PAUL C. WATLER, ESQUIRE 

RACHEL E. BOEHM, ESQUIRE 

Jenkens & Gilchrist 

A Professional Corporation 

Fountain Place 

1445 Ross Avenue, Suite 3200 

Dallas, TX 75202 

For The Dallas Morning News, Inc.

Publisher of The Dallas Morning Star 

 2 
FAITH S. HOCHBERG, ESQUIRE 

United States Attorney 

KIMBERLY M. GUADAGNO, 

 ESQUIRE (ARGUED) 

KEVIN McNULTY, ESQUIRE 

Assistant United States Attorney 

970 Broad Street, Room 502 

Newark, NJ 07102 

Attorneys for Appellee United States

of America

DAVID POVICH, ESQUIRE 

BARRY S. SIMON, ESQUIRE 

 (ARGUED) 

SEAN ESKOVITZ, ESQUIRE 

Williams & Connolly 

725 12th Street, NW 

Washington, DC 20005 

Attorneys for Appellee GTECH

Corporation

Intervenor in D.C.

JOHN J. GIBBONS, ESQUIRE 

 (ARGUED) 

LAWRENCE S. LUSTBERG, 

 ESQUIRE 

MARK A. BERMAN, ESQUIRE 

Crummy, Del Deo, Dolan, Griffinger 

 & Vecchione 

A Professional Corporation 

One Riverfront Plaza 

Newark, NJ 07102 

Attorneys for Appellee J. David Smith

 3 
KEVIN H. MARINO, ESQUIRE 

 (ARGUED) 

RICHARD E. SHAPIRO, ESQUIRE 

One Newark Center, Suite 1600 

Newark, NJ 07102-5211 

Attorneys for Appellee Steven

D'Andrea

CATHY FLEMING, ESQUIRE 

Fleming, Roth & Fettweis 

744 Broad Street 

Suite 701 

Newark, NJ 07102 

J. A. CANALES, ESQUIRE 

Canales & Simonson 

2601 Morgan Avenue 

P.O. Box 5624 

Corpus Christi, TX 78465-6524 

Attorneys for Intervenor Ben Barnes

OPINION OF THE COURT 

BECKER, Circuit Judge. 

This appeal by the Newark Morning Ledger Co., Cox 

Texas Publications, Inc., and the Dallas Morning News, Inc. 

("newspapers"), who unsuccessfully sought access to

certain records and proceedings in the sentencing phase of 

a criminal case in the district court, requires us to resolve 

certain tensions between the media's First Amendment 

right of access to judicial proceedings and the rule of 

confidentiality of grand jury material, see Fed. R. Crim. P. 

6(e). The focus of the newspapers' attention is the putative 

misconduct of the government in publicly disclosing its 

sentencing memorandum which contained allegations of 

criminal conduct against several individuals who have not 

been charged with any crimes ("uncharged individuals"). 

The memorandum was addressed to the sentencing of J. 

David Smith and Steven D'Andrea, who had been convicted 

 4 
of various charges in connection with a state lottery 

kickback scheme (which made the matter one of great

public interest). At the same time that it submitted the 

memorandum to the court, the government posted it on its 

Internet website and made copies available to members of 

the press, the public, and state lottery regulators. 

Smith and D'Andrea, Smith's employer GTECH 

Corporation (a company that provides computer and other 

services to state lottery authorities), and the uncharged 

individuals mentioned in the sentencing memorandum 

complained to the district court, contending that the 

memorandum contained grand jury material, and asserting 

that the government had violated Rule 6(e) by disclosing it 

to the public. The district court sealed the sentencing 

memorandum on the ground that 6(e) material was 

implicated, and, for the same reason, ordered the parties to 

file under seal briefs concerning the extent to which the 

sentencing memorandum was sourced in secret grand jury 

material. 

The newspapers filed a motion to intervene (which was 

granted) and for access to the papers and proceedings. At 

a hearing on the motion, they contended that they had a 

First Amendment and a common law right of access 

thereto. The parties opposing access (Smith, D'Andrea, 

GTECH, and those whose names are mentioned in the 

sentencing memorandum) objected that access would result 

in the disclosure of putative grand jury material in violation 

of Rule 6(e). The district court agreed, and entered an order 

denying the newspapers' request for access to the 

sentencing memorandum, the briefs, and the hearing it had 

scheduled on the question whether the government had 

violated Rule 6(e). The district court also made clear that, 

after it made its determination, all aspects of the

proceedings (including the briefs and the transcript of the 

hearing) would be opened up (except to the extent 

prohibited by Rule 6(e)). The newspapers filed a timely 

appeal, and we stayed the hearing before the district court 

pending our resolution of the matter. 

We first conclude that the segment of the newspapers' 

appeal seeking access to the sentencing memorandum is 

moot, as the newspapers already have copies of it. With 

 5 
respect to the briefs and hearing, even though the 

proceedings at issue before the district court concern 

alleged government misconduct and hence public access to 

them would serve important functions, there is no 

presumptive First Amendment or common law right of 

access to them if secret grand jury material would be 

disclosed by that access. Indeed, as the government has 

represented, the district court will necessarily have before it 

previously undisclosed grand jury material. Moreover, Rules 

6(e)(5) and 6(e)(6) require a court to seal any papers or 

hearings "affecting" or "relating to" grand jury proceedings, 

which includes any proceedings that would disclose secret 

grand jury material. We conclude that grand jury secrets 

might be disclosed by the briefs and hearing to which the 

newspapers seek access, and conclude that the district 

court acted properly in ensuring that such material

remains confidential while it makes its determination 

whether that material is in fact secret grand jury material. 

Under such circumstances, in camera review of the 

disputed material is necessary. 

Rejecting the newspapers' alternative request, we will not 

require the district court to redact the briefs or to open up 

the nonsecret aspects of the hearing, for that would be 

highly impractical and inefficient and would create a 

circus-like "revolving door" hearing. Moreover, although 

there is (and can be) no prior restraint on the use by the 

newspapers of material already in their possession, we 

conclude that the potential grand jury material contained in 

the sentencing memorandum is entitled to the protection 

afforded to it by the district court despite the fact that it 

has already been publicly disclosed. We will therefore affirm 

the order of the district court sealing the briefs and the 

hearing and remand so that the district court can hold its 

scheduled in camera hearing. If and when the district court 

determines that aspects of those briefs and hearings are 

nonsecret, it shall, as it has already promised, disclose 

those aspects to the public. 

I. Facts and Procedural History 

On October 4, 1996, Smith and D'Andrea were convicted 

in the District Court of twenty felony counts arising out of 

 6 
a state lottery kickback scheme following a jury trial. Smith 

had been National Sales Manager of GTECH Corporation. In 

that capacity, he had received illegal payments from 

Benchmark Enterprises, Inc., a consulting firm owned and 

operated by D'Andrea that was retained by GTECH.1 

On January 15, 1997, before the parties had filed their 

post-trial motions and before the Probation Office had 

prepared the presentence investigation reports for either 

Smith or D'Andrea, the government submitted its 

sentencing memorandum to the district court.2 

Simultaneously, the government placed the memo on its 

Internet website and made copies available to the public, 

the media, and to state lottery regulators. To support the 

government's position that Smith and D'Andrea should 

receive substantial sentences, the section of the 

memorandum concerning relevant conduct included 

descriptions of criminal conduct involving several 

uncharged individuals. The dissemination of the 

memorandum was immediately followed by a series of 

newspaper articles reporting the substance of the 

memorandum, and in particular, the allegations against the 

uncharged individuals. 

On January 16, 1997, the day after the sentencing 

memorandum was publicly disclosed, counsel for GTECH 

and the uncharged individuals named in the sentencing 

memorandum made an oral request before the district

court to be heard about the disclosure. The court held a 

hearing the next day. GTECH and the uncharged 

individuals contended that the sentencing memorandum 

_________________________________________________________________ 

1. A third defendant, Joseph La Porta, was co-owner and operator of 

Benchmark. He was acquitted of the charges stemming from the 

kickback scheme. 

2. It is not altogether clear whether the sentencing memorandum was 

actually filed with the district court like any other brief or whether it was 

simply forwarded directly to Judge Politan's chambers. The reason for 

the premature submission of the government's sentencing memorandum 

is also unclear. It appears that post-trial motions were delayed because 

Smith sought new counsel. As a result, the sentencing, originally 

scheduled for January 8, was postponed. When the sentencing 

memorandum was submitted to the court, the Probation Office had not 

yet conducted its interviews of Smith or D'Andrea. 

 7 
contained grand jury material and that, as such, the 

government had violated Fed. R. Crim. P. 6(e) by disclosing 

it to members of the public. These third parties were joined 

by Smith and D'Andrea in also claiming that thefiling of 

the sentencing memorandum violated various aspects of 

Fed. R. Crim. P. 32, which governs the preparation of 

presentence investigation reports.3 The government 

contended in opposition that its disclosure of the 

sentencing memorandum was proper in all respects. 

At the conclusion of the hearing, "to preserve the status 

quo" pending full briefing on the issues before it, the 

district court ordered the sentencing memorandum 

removed from the clerk's office and placed under seal. The 

court also directed the government to remove the memo 

from its website, to make all reasonable efforts to retrieve 

copies of the document that had been disseminated, and to 

refrain from further dissemination of the memo. The court 

ordered the parties to file any further papers under seal, 

but expressly reserved decision on whether it would close 

any future hearing. It informed the parties that it would 

determine, based on the parties' papers, "whether there is 

sufficient implication of Rule 6(e) . . . to warrant closure." 

On January 31, 1997, GTECH and the uncharged 

individuals filed under seal briefs alleging that the 

government's disclosure of the sentencing memorandum 

violated Fed. R. Crim. P. 6(e) and 32. The government filed 

its opposition brief under seal on February 14, and the 

movants filed their sealed reply papers on February 24. 

On February 14, 1997, the newspapers moved to 

intervene and for access to the sentencing memorandum, 

_________________________________________________________________ 

3. The parties argued, in addition, that the disclosure of the sentencing 

memorandum prior to the Probation Office's submission of the 

presentence report violated a standing order of the district court 

governing the sentencing process. This standing order contemplates that 

the probation officer will submit the final presentence investigation 

report to the court and the parties "not less than 7 business days prior 

to the date of the sentencing hearing." The government is to submit the 

sentencing memorandum "not less than 5 business days prior to the 

date of the sentencing hearing." In re Guideline Sentencing, Standing 

Order (Sept. 1, 1994). 

 8 
the briefs filed under seal, and any hearing, contending 

that they had First Amendment and common law rights of 

access to all of them.4 GTECH and the other parties

opposed the newspapers' request for access to the papers 

and proceedings. At a hearing on the newspapers' motion 

on March 24, the district court granted the newspapers' 

motion to intervene, but denied their request for access to 

the sentencing memorandum, the briefs, and to the hearing 

(which it scheduled for April 28). The court informed the 

newspapers that "the very reason [the briefs are] sealed is 

there may be materials in there which affect Rule 6(e)." 

Moreover, the court stated: 

I'm in the process of considering the briefs at the

present time. I think it would be fundamentally unfair 

and a disservice to the system of justice and to this 

Court for me to precipitously let them go without 

having heard the arguments of the parties in a free and 

unfettered context so that I can decide matters of 

sensitivity under Rule 6. 

The court noted that "at the conclusion of [the Rule 6(e)] 

hearing or shortly thereafter" it would disclose all of the 

materials that it determined did not contain grand jury 

secrets. The court filed an order to this effect on April 1. 

On April 3, 1997, the newspapers filed a notice of appeal 

from the district court's orders of January 17 and April 1 

which had sealed the sentencing memorandum, the briefs, 

and the April 28 hearing. On April 24, 1997, we stayed the 

April 28 hearing. We have appellate jurisdiction under 28 

U.S.C. § 1291 to review final decisions of the district court.5 

Orders either granting or, as in this case, denying access to 

court proceedings or records are appealable as final orders 

_________________________________________________________________ 

4. At the district court level, the government did not oppose the 

newspapers' request for access to the papers and hearing, contending 

that it had done nothing improper by publicly disclosing the sentencing 

memorandum. On appeal, however, the government submits that the 

papers and hearing must remain sealed temporarily so that the district 

court can determine in a deliberative fashion whether the disclosure of 

the sentencing memorandum was improper. 

5. The district court had jurisdiction over the underlying criminal 

prosecutions under 18 U.S.C. § 3231. 

 9 
under § 1291. See, e.g., United States v. Antar, 38 F.3d 

1348, 1355 (3d Cir. 1994); United States v. Raffoul, 826 

F.2d 218, 222 (3d Cir. 1987).6 We lack jurisdiction, 

however, over the part of the newspapers' appeal that 

concerns access to the sentencing memorandum because it 

is moot. The newspapers already possess the sentencing 

memorandum, and the district court's orders do not bar 

them from publishing it. Under these circumstances, no 

meaningful relief can be granted to the newspapers with 

respect to the sentencing memorandum, and there is no 

live controversy between the parties.7 

Thus, we consider (only) whether the district court has 

properly sealed the briefs and the hearing. To the extent 

that those briefs and the hearing concern the disclosure of 

the sentencing memorandum, our resolution of whether 

there is a public right of access to them will necessarily 

impact on the question whether the district court also 

properly sealed the sentencing memorandum. 

We exercise plenary review over whether the First 

Amendment or the common law creates a presumptive right 

of access to judicial documents or proceedings. Antar, 38 

F.3d at 1356-57. Although we generally review the factual 

findings of the district court for clear error, in the First 

Amendment context, we exercise independent appellate 

review of the record. See Swineford v. Snyder County, 15 

F.3d 1258, 1265 (3d Cir. 1994); United States v. Simone, 14 

F.3d 833, 836 (3d Cir. 1994). Thus, when we deal with a 

First Amendment right of access claim, our scope of review 

_________________________________________________________________ 

6. GTECH contends that the newspapers' appeal is not timely because 

their notice of appeal was filed more than sixty days after the district 

court's January 17 order sealing the sentencing memo, the briefs, and 

any future hearings. We disagree. First, the district court did not order 

the hearing closed until its April 1 order. Second, and more importantly, 

the newspapers were not parties to this action until April 1 when the 

district court granted their motion to intervene. This issue was not ripe 

for appeal until that same day, when the district court rejected the 

newspapers' challenge to the January 17 order. 

7. In holding that the newspapers' request for public access to the 

sentencing memorandum is moot, we do not hold that the dispute before 

the district court as to whether the government properly disclosed the 

sentencing memorandum is also moot. 

 10 
of factual findings "is substantially broader than that for 

abuse of discretion." Antar, 38 F.3d at 1357. With respect 

to the newspapers' common law right of access to judicial 

proceedings and papers, we review the district court's order 

for abuse of discretion. In re Capital Cities/ABC, Inc.'s

Application for Access to Sealed Transcripts, 913 F.2d 89, 

92 (3d Cir. 1990). 

II. First Amendment Right of Access to 

Proceedings and Records 

The First Amendment right of access to criminal 

proceedings is firmly established. In Richmond Newspapers,

Inc. v. Virginia, 448 U.S. 555 (1980), the Supreme Court 

held that the First Amendment provides a public right of 

access to criminal trials. Tracing the history of open 

criminal trials from the days before the Norman Conquest, 

the Court found that criminal trials are covered by a 

"presumption of openness," and, as such, may be closed 

only if justified by an "overriding interest articulated in 

findings." Id. at 573, 581. The Court has since extended 

that holding to other aspects of a criminal case, see, e.g., 

Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984) 

("Press-Enterprise I") (voir dire); Press-Enterprise Co v.

Superior Court, 478 U.S. 1 (1986) ("Press-Enterprise II") 

(preliminary hearing), and we have done the same, affording 

a public right of access to additional aspects of criminal 

proceedings, see, e.g., Simone, 14 F.3d at 840 (post-trial 

hearings to investigate juror misconduct), and to the 

records and briefs that are associated with those 

proceedings, see, e.g., Antar, 38 F.3d at 1359-60 (voir dire 

transcript); United States v. Smith, 787 F.2d 111, 116 (3d 

Cir. 1986) ("Smith II") (transcript of sidebar conference 

during criminal trial). 

The Supreme Court has established a two-part inquiry 

for determining whether a particular proceeding is one to 

which the First Amendment right of access attaches. This 

test requires a court to consider both "experience" and 

"logic." Press Enterprise II, 478 U.S. at 8. The "experience" 

prong requires us to consider "whether the place and 

process have historically been open to the press and the 

general public." Id. The "logic" inquiry asks us to determine 

 11 
whether "public access plays a significant positive role in 

the functioning of the particular process in question." Id.

We have identified six relevant societal interests that a 

court may consider in evaluating whether, for purposes of 

the "logic" prong, public access to the proceeding and 

records in question enhances their function: 

promotion of informed discussion of governmental 

affairs by providing the public with the more complete 

understanding of the judicial system; promotion of the 

public perception of fairness which can be achieved

only by permitting full public view of the proceedings; 

providing a significant community therapeutic value as 

an outlet for community concern, hostility, and 

emotion; serving as a check on corrupt practices by

exposing the judicial process to public scrutiny; 

enhancement of the performance of all involved; and

discouragement of perjury. 

Smith II, 787 F.2d at 114 (summarizing United States v.

Criden, 675 F.2d 550, 556 (3d Cir. 1982) (Criden II)). 

Once established under the "experience" and "logic" test, 

a First Amendment right of access is not an absolute right, 

but rather is a presumptive right. Although rare, closure of 

a criminal proceeding or records to which there is a 

presumptive right of access is permitted "for cause shown 

that outweighs the value of openness." Press-Enterprise I, 

464 U.S. at 509. We have held that, for a district court to 

seal a criminal proceeding or records, "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." Antar, 38 F.3d at 1359. 

Based on this case law, the newspapers contend that

there is a presumptive First Amendment right of access to 

the sealed briefs and the upcoming hearing. They point first 

to our language in Simone, in which we noted that "[o]n a 

broad level, we see no reason to suspect that post-trial 

proceedings as a general category are any different with 

respect to the First Amendment right of access than the 

other components of a criminal trial." Simone, 14 F.3d at 

 12 
839. Turning to the Press-Enterprise II test, the newspapers 

submit that the Criden II factors weigh in favor of access to 

the papers and proceedings at issue.8 According to the 

newspapers, the ultimate issue before the district court is 

whether the government's disclosure of the sentencing 

memorandum was proper. Therefore, they submit, the 

papers and the hearing ultimately concern allegations of 

government misconduct. Viewing the proceedings and 

related briefing through this lens, the newspapers claim 

that access to those proceedings and papers will promote 

the public's perception of fairness; foster an informed 

public discussion about the operations of the United States 

Attorney's office; and provide public insight into how the 

judiciary resolves serious allegations of government 

misconduct. 

The newspapers also point out that the district court did 

not make any particularized findings that closure of the 

briefs and hearing was necessary to further some 

compelling interest, as is required under Antar once a court 

determines that a presumptive right of access exists. 

Alternatively, they contend that, even if the district court 

had made particularized findings, there is no compelling 

interest that would justify the closure of the briefs and the 

hearing. 

In response, GTECH and the other parties opposing 

access (Smith, D'Andrea, and the government) contend that 

there is no presumptive right of access to the briefs or the 

hearing.9 They submit that the real issue before the district 

court is whether the government improperly disclosed 

grand jury material in violation of Fed. R. Crim P. 6(e). 

Relying on Douglas Oil Co. v. Petrol Stops Northwest, 441 

U.S. 211 (1979), and subsections (e)(5) and (e)(6) of Rule 6, 

they point out that grand jury matters, and papers and 

proceedings that would disclose grand jury matters have 

historically been closed to the press and the public. They 

represent that the briefs and the hearings would reveal not 

only secret grand jury material that was disclosed by the 

_________________________________________________________________ 

8. The newspapers' brief does not address the "experience" prong. 

9. The uncharged individuals named in the sentencing memorandum 

have not filed briefs on appeal. 

 13 

government in the sentencing memorandum, but also 

previously undisclosed (secret) grand jury material that 

they have brought (or will bring) to the court's attention so 

that it can make a fully informed decision as to whether the 

government violated Rule 6(e). The Assistant United States 

Attorney in particular stated at oral argument: "[N]ot only 

does [Judge Politan] have to [look at undisclosed grand jury 
material] but the government's position is that he can't 

make a decision without it."10 

III. Do the Newspapers Have a Right of Access 

to the Briefs and Hearing? 

A. The Secrecy of the Grand Jury 

The longstanding rules preserving grand jury secrecy are 

well established. See Douglas Oil, 441 U.S. 211; In re Grand

Jury Matter (Catania), 682 F.2d 61, 63 (3d Cir. 1982). As 

the Supreme Court explained in Douglas Oil, "[s]ince the 

17th century, grand jury proceedings have been closed to 

the public, and records of such proceedings have been kept 

from the public eye." 441 U.S. at 218 n.9. The secrecy of 

grand jury proceedings is a necessary incident to the proper 

functioning of the grand jury system. The Court has: 

noted several distinct interests served by safeguarding 

the confidentiality of grand jury proceedings. First, if 

preindictment proceedings were made public, many 

prospective witnesses would be hesitant to come 

forward voluntarily, knowing that those against whom 

they testify would be aware of that testimony. 

Moreover, witnesses who appeared before the grand 

jury would be less likely to testify fully and frankly, as 

they would be open to retribution as well as 

inducements. There also would be the risk that those 

about to be indicted would flee, or would try to 

influence individual jurors to vote against indictment. 

Finally, by preserving the secrecy of the proceedings, 

we assure that persons who are accused but 

_________________________________________________________________ 

10. The government attached a sealed affidavit to this effect in the 

papers it filed in the district court. 

 14 
exonerated by the grand jury will not be held up to

public ridicule. 

Id. at 218-19. Moreover, these "interests in grand jury 

secrecy, although reduced, are not eliminated merely 

because the grand jury has ended its activities." Id. at 222.11 

Thus, Douglas Oil implicitly makes clear that grand jury 

proceedings are not subject to a First Amendment right of 

access under the test of "experience and logic." Historically, 

such proceedings have been closed to the public. Moreover, 

public access to grand jury proceedings would hinder, 

rather than further, the efficient functioning of the 

proceedings. 

Not only are grand jury proceedings not subject to any 

First Amendment right of access, but third parties can gain 

access to grand jury matters only under limited 

circumstances. Even after the grand jury has concluded its 

proceedings, a private party petitioning for access to grand 

jury materials must show that "the need for [access] 

outweighs the public interest in secrecy, and . . . the 

burden of demonstrating this balance rests upon the

private party seeking disclosure." Id. at 223. 

Fed. R. Crim. P. 6(e) is intended to preserve the tradition 

of grand jury secrecy, creating a general rule of 

confidentiality for all "matters occurring before the grand 

jury." Rule 6(e) applies to "anything which may reveal what 

occurred before the grand jury." Catania, 682 F.2d at 63. 

The core of this rule is an obligation on all persons who are 

present at grand jury proceedings not to disclose any 

matters disclosed at such proceedings.12 Any "knowing 

_________________________________________________________________ 

11. In this regard, we note that it is not clear from the record whether 

the grand jury proceedings that are potentially implicated are ongoing. 

Because even completed grand jury proceedings and records are 

presumptively secret, determining whether the grand jury here has 

completed its investigation is not necessary to the questions before us. 

12. Rule 6(d) sets out who may be present at grand jury proceedings: 

Attorneys for the government, the witness under examination, 

interpreters when needed and, for the purpose of taking the 

evidence, a stenographer or operator of a recording device may be 

present while the grand jury is in session, but no person other than 

the jurors may be present while the grand jury is deliberating or 

voting. 

 15 
violation" of that obligation may be punished as contempt 

of court. Fed. R. Crim. P. 6(e)(2). 

Rule 6(e) provides only narrow exceptions to the general 

rule of grand jury secrecy. For example, under Rule

6(e)(3)(A), grand jury secrets may be disclosed without a 

court order to certain government personnel for purposes 

limited to the federal criminal law enforcement. If such a 

disclosure is made, "[a]n attorney for the government shall 

promptly provide the district court, before which was 

impaneled the grand jury whose material has been so

disclosed, with the names of the persons to whom such 

disclosure was made, and shall certify that the attorney has 

advised such persons of their obligation of secrecy under 

this rule." Id. 6(e)(3)(B). Most important for purposes of this 

case, any third parties seeking access to grand jury 

materials must file a petition in the district court where the 

grand jury convened. Id. 6(e)(3)(D). Under Douglas Oil, as 

we noted above, such parties have the burden of showing 

that their need for access outweighs the public interest in 

the secrecy of the grand jury materials. 

To preserve the secrecy of grand jury proceedings, the 

district court must seal certain hearings and records, 

although not grand jury proceedings themselves, when 

access to those hearings and records would jeopardize 

grand jury secrecy. Under Rule 6(e)(5), "[s]ubject to any 

right to an open hearing in contempt proceedings, the court 

shall order a hearing on matters affecting a grand jury 

proceeding to be closed to the extent necessary to prevent 

disclosure of matters occurring before a grand jury" 

(emphasis added).13 Similarly, under Rule 6(e)(6), "[r]ecords, 

orders and subpoenas relating to grand jury proceedings 

shall be kept under seal to the extent and for such time as 

_________________________________________________________________ 

13. To the extent that contempt proceedings may be held in open court, 

the right to public access is a right held by the putative contemnor, not 

by the public. The contemnor must request open proceedings. Moreover, 

there is no requirement that the entire proceeding, including the 

questions that the contemnor refused to answer, be made public. All 

that must be accessible to the public, upon the contemnor's request, is 

the "final stage" of contempt proceedings. Levine v. United States, 362 

U.S. 610, 618 (1960). 

 16 
is necessary to prevent disclosure of matters occurring 

before a grand jury" (emphasis added). 

It is clear to us that the briefs and the hearings here are 

not themselves "matters occurring before the grand jury." 

They may, nonetheless, be subject to Rule 6(e)(5) and 6(e)(6) 

governing the closure of hearings "affecting" and papers 

"relating to" grand jury proceedings. As the Second Circuit 

has recently explained, "[t]he plain language of the Rule 

shows that Congress intended for its confidentiality 

provisions to cover matters beyond those actually occurring 

before the grand jury." In re Grand Jury Subpoena (Doe No.

4 v. Doe No. 1), 103 F.3d 234, 237 (2d Cir. 1996). Rather 

than according secrecy only to the grand jury proceedings 

themselves, the rules provide a presumption of secrecy to 

all proceedings that "affect" grand jury proceedings. 

Concomitantly, not only are grand jury materials 

themselves to be kept secret, but so are all materials that 

"relate to" grand jury proceedings. 

The newspapers urge a narrow reading of those 

provisions, recognizing that, if the briefs and hearing are 

subject to Rules 6(e)(5) and 6(e)(6), there is clearly no First 

Amendment right of access to them. Not only would there 

be no presumptive right of access to them, but if the 

newspapers wanted access to the briefs and the hearing, 

they would have the burden of showing that their need for 

access outweighed the public interest in grand jury secrecy, 

a burden the newspapers would be unlikely to carry. The 

newspapers contend that proceedings regarding whether 

the government improperly disclosed grand jury material do 

not "affect" or "relate to" a grand jury proceeding, in the 

common sense of those terms. According to the 

newspapers, any grand jury proceedings can continue

"uninterrupted and unaffected" by the proceedings before 

the district court. We disagree. 

Grand jury proceedings are interrupted and affected if 

matters occurring before the grand jury are disclosed. That 

is because, as the Douglas Oil Court explained, the 

disclosure of what has occurred or is occurring before the 

grand jury undermines the proper functioning of grand jury 

proceedings. Thus, Rules 6(e)(5) and Rule 6(e)(6) require a 

district court to seal any hearing or records that would 

 17 
publicly disclose matters occurring before the grand jury. 

See id. at 238 ("[A] proceeding is related to or affects a

grand jury investigation if it would reveal matters actually 

or potentially occurring before the grand jury."); 1 Charles 

Alan Wright, Federal Practice and Procedure § 106, at 250 

(1982) ("The rule of secrecy applies . . . to anything that 

might tend to reveal what happened in the grand jury 

room."). In other words, since it is indisputable that a court 

must seal Rule 6(e) material, then a court may also seal 

proceedings or papers if grand jury material would be 

disclosed during the proceedings. 

The Advisory Committee notes to Rule 6 clearly support 

this conclusion. That commentary states that Rule 6(e)(5) 

"make[s] it clear that certain hearings which would reveal 

matters which have previously occurred before a grand jury 

or are likely to occur before a grand jury with respect to a 

pending or ongoing investigation must be conducted in 

camera in whole or in part in order to prevent public 

disclosure of such secret information." Advisory Committee 

Notes to Rule 6, 1983 Amendment. The Notes then go on to 

provide several examples of such a hearing. For instance, 

when a third party petitions a court for access to particular 

grand jury materials under subdivision (e)(3)(D), a court 

might be justified in sealing any related hearings "for it will 

at least sometimes be necessary to consider and assess 

some of the `matters occurring before the grand jury' in 

order to decide the disclosure issue." Id. In other words, a 

court should close a hearing to decide whether disclosure is 

warranted if that hearing would necessarily disclose grand 

jury matters.14 

B. The Relationship Between the Rules Protecting 

Grand Jury Secrecy and the Briefs and Hearing 

We turn, therefore, to the critical question whether the 

briefs and hearing to which the newspapers seek access are 

_________________________________________________________________ 

14. The commentary provides two additional examples of hearings "at 

which information about a particular grand jury proceeding might need 

to be discussed": "those at which the question is whether to grant a 

grand jury witness immunity or whether to order a grand jury witness to 

comply fully with the terms of a subpoena directed to him." 

 18 
subject to a First Amendment right of access. We 

acknowledge at the outset the force of the newspapers' 

contention that the proceedings before the district court in 

essence concern post-trial allegations of government 

misconduct in a criminal case. Moreover, we agree with the 

newspapers that there is a significant public interest in 

gaining access to proceedings that investigate allegations of 

government misconduct. Nevertheless, even if the 

proceedings at issue concern possible government 

misconduct (so that the logic prong of the Press-Enterprise

II test, see supra p.11-13, is likely satisfied), there is no 

presumptive First Amendment right of access if the hearing, 

and related papers must be sealed under Rule 6(e)(5) and 

6(e)(6) because they "affect" or "relate to" a grand jury 

proceeding. In other words, if the district court seals a 

proceeding or brief because it would disclose grand jury 

matters, there is no First Amendment right of access to it 

even if it also concerns possible improper actions by 

government officials. 

Thus, to determine whether the newspapers are correct 

that there is a presumptive right of access to the hearing 

and briefs, we must determine whether they will disclose 

grand jury matters so that they "affect" or "relate to" grand 

jury proceedings within the meaning of Rule 6(e)(5) and 

6(e)(6). We conclude that they do. Although the ultimate 

issue to be decided by the district court is whether 

attorneys for the government committed any wrongdoing by 

publicly releasing the sentencing memorandum, this 

question cannot be resolved without the district court's 

determining whether that sentencing memorandum 

includes Rule 6(e) material. Thus, the focus of the

proceedings before the district court is on the question 

whether the disputed material contained in the sentencing 

memorandum is in fact grand jury material. In this 

proceeding, grand jury matters may potentially be disclosed 

in two respects. 

First, as the government has represented in its brief and 

at oral argument, in order to decide the matter, the district 

court will have to consider previously undisclosed material 

that, the government represents, contains grand jury 

secrets. According to the parties opposing access, these 

 19 
previously undisclosed materials have been submitted to 

the district court so that it can determine in an informed 

manner whether the sentencing memorandum contained 

Rule 6(e) material. At this juncture, since the government is 

in the unique position of knowing what transpired before 

the grand jury, we must accept the representation that 

undisclosed grand jury secrets will come out during the 

proceeding. 

Second, the aspects of the sentencing memorandum itself 

that GTECH, Smith, and D'Andrea contend are entitled to 

secrecy under Rule 6(e) will necessarily be disclosed during 

the proceedings, as the purpose of the proceedings is to 

determine the status of that material under Rule 6(e). The 

district court must ensure that any such material remains 

secret, for, otherwise, potentially confidential material 

would be publicly disseminated before the court can decide 

whether those materials are actually secret. The risk that 

the briefs and hearing will disclose grand jury matters is 

significant enough that closure is warranted. Cf. Doe No. 4, 

103 F.3d at 238 ("We believe that a hearing on Doe 4's 

motion [asserting that it had been a victim of illegal 

surveillance and demanding that the government disclose 

any such surveillance] poses a significant risk of disclosing 

information which has occurred or which may occur before 

the grand jury. Because the government has not yet 

confirmed or denied the investigation, we can only 

speculate as to the precise nature of the risk."). 

As the foregoing discussion demonstrates, the briefs and 

hearing will necessarily reveal grand jury material. We 

therefore conclude that the briefs and hearing to which the 

newspapers seek access are afforded secrecy under Fed. R. 

Crim. P. 6(e)(5) and 6(e)(6). Not only was the district court 

justified in sealing them, it was required to do so absent a 

showing of an overriding interest. As such, there is no 

presumptive First Amendment right of access thereto. For 

this reason, our inquiry ends here, and we do not reach the 

question whether the district court made particularized 

findings that the need for closure outweighed the interest in 

public access, as is required under Antar, 38 F.3d at 1359, 

when a presumptive First Amendment right of access is 

established. 

 20 
Several additional considerations support our conclusion 

that there is no presumptive First Amendment right of 

access to the briefs or to the hearing. GTECH and the other 

parties opposing access point out, quite convincingly, that 

examining material in camera is a common method used by 

courts to make decisions without undermining the secret or 

privileged nature of certain material. We have approved that 

method in several contexts, including the grand jury. 

Recently, in In re Grand Jury, 103 F.3d 1140 (3d Cir. 

1997), for example, we held that the district court did not 

err in conducting an ex parte, in camera hearing to 

determine whether a challenged subpoena must be 

complied within a case claiming parent-child privilege. We 

stated that "[e]x parte in camera hearings have been held 

proper in order to preserve the ongoing interest in grand 

jury secrecy. The secrecy of the grand jury proceedings in 

the present matter might have been compromised by 

divulging the specific questions that the government 

intended to ask during the daughter's testimony." Id. at 

1145 (citations omitted). 

Courts have also approved of examining material in

camera in order to preserve the potentially privileged or

secret nature of that information when faced with a dispute 

about whether that material is in fact privileged or secret, 

as in this case. For example, we have used that method to 

determine whether certain documents are protected by the 

attorney-client privilege or work product doctrine. See, e.g., 

Kelly v. Ford Motor Co., 107 F.3d 954 (3d Cir. 1997). 

Similarly, the Supreme Court has endorsed the practice of 

holding in camera proceedings for determining whether the 

government can withhold documents from discovery based 

on a claimed government privilege. See, e.g., Kerr v. United

States District Court of the Northern District of California, 

426 U.S. 394 (1976). 

In a related vein, it is clear that the district court 

properly took steps to preserve the subject matter of the 

dispute pending its determination whether that subject 

matter should be secret. Faced with a bona fide claim that 

6(e) material was disclosed in the sentencing memorandum, 

the court prevented further disclosures of that material, 

thereby preserving the "status quo," while the parties 

 21 
briefed the question and the court brought them in for a 

hearing. The district court would have been in an 

untenable position if the newspapers had a right of access 

to the proceedings. The very purpose of the proceedings is 

to determine whether the sentencing memorandum 

contained Rule 6(e) material. If the district court made that 

determination in a public proceeding, it would further 

disseminate the potential secrets in doing so. This would be 

an unfortunate result indeed if the district court ultimately 

determined that the memorandum in fact contained grand 

jury secrets.15 

_________________________________________________________________ 

15. Because we conclude that the district court did not err in sealing the 

briefs and the hearing, we need not reach the question whether Fed. R. 

Crim. P. 32, which governs the preparation of presentence investigation 

reports (PSR), would have permitted the district court to do the same. 

The district court, in sealing the briefs and hearing, relied almost 

entirely on Rule 6(e). Although most of the arguments with respect to 

Rule 32 made by the parties opposing access have to do with the 

question whether the district court properly sealed the sentencing 

memorandum, which we have held is moot, whether information 

contained in a government sentencing memorandum is confidential is 

still a live issue to the extent that the briefs and the hearing might reveal 

some of that information. 

The parties opposing access to the briefs and hearing make a number 

of Rule 32 based arguments in support of the district court's decision to 

seal the briefs and the hearing. First, they contend that the sentencing 

memorandum (and by extension, the briefs and the hearing) disclosed (or 

will disclose) certain sensitive information that Rule 32(b)(5) requires 

probation officers to exclude from the PSRs. Second, they submit that 

the sentencing memorandum (and again by extension, the briefs and 

ultimately the hearing) disclosed (or will disclose) presentence 

investigation material in violation of Rule 32(b)(6), which governs the 

obligations of the parties during the presentence investigation process. 

More generally, the parties opposing access point to case law that has 

held that PSRs are not subject to any public right of access, unless the 

party seeking access can demonstrate an interest in disclosure that 

outweighs the interest in the confidentiality of the report. See United

States v. Corbitt, 879 F.2d 224, 228 (7th Cir. 1989); United States v.

Schlette, 842 F.2d 1574, 1579 (9th Cir. 1988); United States v. McKnight, 

771 F.2d 388, 390 (8th Cir. 1985); United States v. Santarelli, 729 F.2d 

1388, 1390 (11th Cir. 1984); United States v. Charmer Indus., 711 F.2d 

1164, 1176 (2d Cir. 1983). Even though Rule 32 itself does not deal with 

 22 
C. Must the District Court Redact the Briefs 

and Hold a Two-Part Hearing? 

The newspapers concede that they have no right of 

access to grand jury material as such. They contend, 

however, that the district court would only be justified in 

sealing the briefs and the hearing in their entirety if the 

court made particularized findings that the hearing and 

briefs would concern only grand jury material. In other 

words, the newspapers insist that they seek access only to 

_________________________________________________________________ 

disclosure of the report to third parties, a number of courts have 

reasoned that, in addition to the fact that PSRs have traditionally been 

confidential and only made available to the defendant in recent decades, 

"public disclosure . . . of the presentence report . . . would constitute a 

positive hindrance" of the sentencing process and ongoing criminal 

investigations. Corbitt, 879 F.2d at 229. We ourselves have observed that 

"[t]here is a general presumption that the courts will not grant third 

parties access to the presentence reports of other individuals." United

States v. Blanco, 884 F.2d 1577, 1578 (3d Cir. 1988). 

Based on this case law, the parties opposing access contend that the 

newspapers do not have a presumptive right of access to the sentencing 

memorandum, or to the briefs or hearing, which might disclose the 

information contained in the PSR. As they point out, sentencing 

memoranda typically include the same classes of sensitive information as 

are included in presentence reports, such as criminal history and 

characteristics, and not infrequently, as in this case, allegations of 

criminal conduct against uncharged individuals. 

There is considerable force to this argument. There are, of course, 

countervailing considerations. In the wake of the revolution in criminal 

sentencing spawned by the Sentencing Reform Act, 18 U.S.C. § 3551 et

seq., and the U.S. Sentencing Guidelines, which have largely 

transformed sentencing into an adversary proceeding during which the 

sentencing judge makes record fact findings about the material 

sentencing factors, it would seem that significant portions of the PSR 

need (and should) no longer be confidential. But even if that were so, the 

matters at issue here may well be outside the ambit of any such precept 

(assuming it should be adopted). We leave this question to the district 

court. If the court determines, upon resolving the 6(e) question, that all, 

or aspects, of the briefs and the transcripts of the hearing should be 

disclosed to the public, it should also consider whether Rule 32 or 

related case law establishing the confidentiality of PSRs would prohibit 

the disclosure of that material. 

 23 
the nonsecret portions of the proceeding before the district 

court. They make two related contentions. First, they point 

out that the district court made no findings that secret 

grand jury material would actually be considered during the 

proceedings. Second, they point out that both Rule 6(e)(5) 

and 6(e)(6) specifically provide that the hearing and 

materials can be closed only "to the extent necessary to 

prevent disclosure of matters occurring before a grand 

jury." According to the newspapers, even if the district 

court can justifiably seal part of the briefs and the hearing, 

the court must exercise this authority narrowly, and only 

seal the particular aspects of the briefs and the hearing 

that warrant secrecy. Under these circumstances, the 

newspapers contend, the district court erred in sealing the 

briefs and the hearing in their entirety and should, instead, 

have redacted the briefs and held a two-part hearing. 

We disagree. The government has represented that 

material it concedes to contain grand jury secrets will be 

disclosed in order to aid the district court's deliberations. 

That virtually concludes the issue. But we would have to 

reject the newspapers' contention even without this

representation. The briefs and the hearing to which the 

newspapers seek access concern the exact issue that the 

newspapers want the district court to determine now: 

whether 6(e) material is implicated. More specifically, 

although the newspapers seek access only to the aspects of 

the proceedings that the district court determines to be 

nonsecret, the district court simply cannot determine what 

material is secret and what can be disclosed to the public 

without determining whether the sentencing memorandum 

contains Rule 6(e) material. Yet that decision, in turn, 

cannot be made without the benefit of the briefs and in 

particular, without the benefit of oral argument. 

At such a hearing, according to the parties opposing 

access, the parties will make legal arguments about the 

scope of Rule 6(e), as well as explain the fabric of the grand 

jury proceedings at issue to the district court. It is not until 

the district court determines what constitutes grand jury 

material in the context of this case, which it can do only at 

the conclusion of the proceedings before it, that it will know 

what aspects of the briefs, the hearing, and the sentencing 

memorandum to make public, if any. 

 24 
The newspapers have expressed concern that a district 

court would seal proceedings that should otherwise be open 

based on a mere allegation that grand jury secrets have 

been or will be disclosed. They submit that this is of 

particular concern in a case such as this where the parties 

claiming that a 6(e) violation has occurred were not present 

during the grand jury investigation, and, therefore, have no 

basis for knowing what exactly constitutes 6(e) material in 

this particular case. We conclude, however, that GTECH 

and the other parties have made at least a colorable 

showing that 6(e) materials were implicated, and as noted 

above, the U.S. Attorney was particularly forthcoming. 

Moreover, the district court made adequate findings in this 

regard. It stated that "the very reason [the briefs are] sealed 

is there may be materials in there which affect Rule 6(e)." 

Even if it were possible for the district court to identify 

material that potentially implicates Rule 6(e) in advance and 

to restrict access only to that particular material without 

the benefit of oral argument, we would not require the 

district court to do so. The newspapers would, in essence, 

have the district court conduct a "revolving door" hearing to 

which the media would be let in and then excluded from 

time to time (or minute to minute) depending on whether 

grand jury material (or putative grand jury material) was 

under consideration. But courts cannot conduct their 

business that way, and we will not tie the hands of the 

district court in this fashion. 

Under these circumstances, requiring access to some

aspects of the hearing will be cumbersome, impractical, 

and inefficient. The same would be true of requiring the 

district court to redact the briefs. The district court has 

informed the parties that it will disclose all nonsecret 

aspects of the sentencing memorandum, the briefs, and the 

hearing as soon as it determines which aspects of those 

papers and proceedings are secret. Under the 

circumstances we have described, that access is enough to 

satisfy any right of access that the newspapers may have to 

the nonsecret aspects of the proceedings. 

 25 
D. Is the Previously Disclosed Grand Jury Material 

Here Entitled to Any Protection? 

The newspapers also contend that there is a First 

Amendment right of access to the briefs and the hearing in 

this case because the First Amendment guarantees access 

to grand jury or other confidential matters to the extent 

that that information has already been publicly disclosed. 

They hang their hat on the fact that the sentencing

memorandum has already been disclosed to the public, and 

reason that what the parties opposing access seek to 

protect is no longer secret. We reject this argument. 

As we have already noted, the proceedings before the 

district court will involve the consideration of previously 

undisclosed grand jury material. Therefore, even if we were 

to assume that any confidential material contained in the 

sentencing memorandum is no longer entitled to protection, 

the proceedings, if public, will, for the reasons we have 

described, disclose additional confidential material. Since 

we have held that the district court is not required to 

conduct a revolving door hearing, in which it would seal 

only those portions of the proceedings that might reveal 

grand jury secrets, the district court did not err in sealing 

the briefs and the hearing even if the information contained 

in the sentencing memorandum is no longer entitled to 

protection. 

Moreover, we cannot agree with the newspapers' 

contention that grand jury material or putative grand jury 

material, once disclosed, even if inadvertently, is no longer 

subject to the protections of Rule 6(e). At bottom, it is clear 

to us that a court is simply not powerless, in the face of an 

unlawful disclosure of grand jury secrets, to prevent all 

further disclosures by the government of those same jury 

secrets. In other words, even if grand jury secrets are 

publicly disclosed, they may still be entitled to at least 

some protection from disclosure. 

The Supreme Court's decision in United States v. Sells

Engineering, Inc., 463 U.S. 418 (1983), is instructive on this 

point. In that case, lawyers in the Justice Department's 

Civil Division had access to certain grand jury materials for 

two years before the Ninth Circuit held that those lawyers 

 26 
were not entitled to the materials under Rule 6(e)(3)(A)(i), 

which governs disclosure to other government lawyers. The 

Supreme Court noted that the case was not moot, despite 

government protestations to the contrary: " `The controversy 

here is still a live one. . . . Each day this order remains 

effective the veil of secrecy is lifted higher by disclosure to 

additional personnel and by the continued access of those 

to whom the materials have already been disclosed. We 

cannot restore the secrecy that has already been lost but 

we can grant partial relief by preventing further 

disclosure.' " Id. at 423 n.6 (quoting In re Grand Jury

Investigation No. 78-184 (Sells, Inc.), 642 F.2d 1184, 1187- 

88 (9th Cir. 1981)); see also In the Matter of Special March

1981 Grand Jury, 753 F.2d 575, 577 (7th Cir. 1985) ("If the 

Court orders such disclosure erroneously, we suppose both 

that an injured person can complain by filing . . . a petition 

with the court that ordered disclosure and that the court 

has inherent power to issue an appropriate curative order 

. . . . We do not think Congress meant to leave the courts 

powerless to correct such errors." (citations omitted)); 

United States v. Nix, 21 F.3d 347, 350 (9th Cir. 1994) ("We 

faced a somewhat similar situation in [Sells Engineering]. 

. . . We acknowledged that secrecy could not be restored, 

but held that the appeal was not moot because issues 

relating to future disclosure needed to be addressed.").16 

_________________________________________________________________ 

16. The cases relied on by the newspapers on this point are inapposite. 

First, they cite us to In re Charlotte Observer, 882 F.2d 850 (4th Cir. 

1989) ("Charlotte Observer I"), in which the Fourth Circuit reversed an 

order of the district court sealing proceedings relating to a change of 

venue motion in a well-publicized criminal case. The district court 

concluded that closure was necessary in order to prevent "republication" 

of the prejudicial pre-trial publicity. The Fourth Circuit disagreed, stating 

"[w]here closure is wholly inefficacious to prevent a perceived harm, that 

alone suffices to make it constitutionally impermissible." Id. at 855. 

Unlike the case before us, however, Charlotte Observer I involved only 

the republication of matters of public record. As such, the court found 

there was a presumptive right of access to the proceedings, and the only 

issue before it was whether the defendants' interest in closure was 

sufficient. 

Moreover, in In re Charlotte Observer, 921 F.2d 47 (4th Cir. 1990) 

("Charlotte Observer II"), the same court reversed an order of the district 

 27 
We acknowledge that the circumstances of this case are 

different from those before the Supreme Court in Sells

Engineering because the potential grand jury secrets 

disclosed here were disseminated to members of the public, 

rather than to certain, identifiable government lawyers and 

their staffs. The order entered by the district court in this 

case cannot effectively bar further dissemination of any 

potential grand jury secrets by members of the public who 

possess the sentencing memorandum.17 Nevertheless, this 

difference in the degree of disclosure does not change the 

result in this case. Although the district court could not 

prevent the newspapers from publishing the sentencing 

memorandum once they came into possession of it, the 

court properly prevented further government disclosures of 

the putative grand jury secrets contained in the sentencing 

memorandum to additional parties. Even if the 

dissemination by members of the public continues, the 

_________________________________________________________________ 

court enjoining two reporters from publishing confidential information 

that was inadvertently revealed in open court. The court noted that "[o]n 

the present record . . . `the cat is out of the bag.' The district court did 

not close the hearing and the disclosure was made in the courtroom, a 

particularly public forum. Once announced to the world, the information 

lost its secret characteristic, an aspect that could not be restored by the 

issuance of an injunction to two reporters." Id. at 50. Unlike Charlotte

Observer I, Charlotte Observer II did potentially implicate secret grand 

jury material. The information that was inadvertently disclosed was the 

name of a lawyer who was the target of an ongoing grand jury 

investigation. Despite the court's language, however, its holding was 

based in the law of prior restraint: the district court's order barred the 

reporters from publishing information that they had obtained lawfully. 

The order, therefore, clearly ran afoul of the line of Supreme Court prior 

restraint cases, such as Oklahoma Publishing Co. v. District Court, 430 

U.S. 308 (1977), and Nebraska Press Association v. Stuart, 427 U.S. 539 

(1976). In the case before us, in contrast, the district court's order does 

not bar the newspapers from publishing the sentencing memorandum in 

their possession. 

17. Nor could the court enter an order barring parties in possession of 

the sentencing memorandum from passing the memorandum onto other 

parties. Under prior restraint law, orders prohibiting the media from 

publishing information already in its possession are strongly disfavored. 

See, e.g., Oklahoma Publishing Co. v. District Court, 430 U.S. 308 (1977); 

Nebraska Press Association v. Stuart, 427 U.S. 539 (1976). 

 28 
order barring further disclosure of any secret grand jury 

material will at least narrow that dissemination. 

IV. Common Law Right of Access 

The newspapers also contend that they have a 

presumptive common law right of access to the briefs and 

to the hearing. This court has often acknowledged the 

existence of a common law right " `to inspect and copy 

public records and documents, including judicial records 

and documents.' " United States v. Criden, 648 F.2d 814, 

819 (3d Cir. 1981) (quoting Nixon v. Warner

Communications, Inc., 435 U.S. 589, 597 (1978)). Although 

the right of access traditionally attached only to judicial 

records, we have suggested that the common law right of 

access also applies to judicial proceedings. See Bank of

America Nat'l Trust & Savings Ass'n v. Hotel Rittenhouse

Assocs., 800 F.2d 339, 343 (3d Cir. 1986). As we have 

explained, the common law right of access serves a number 

of important functions: 

The public's exercise of its common law access right in 

civil cases promotes public confidence in the judicial 

system . . . . As with other branches of government, the 

bright light cast upon the judicial process by public 

observation diminishes the possibilities for injustice, 

incompetence, perjury, and fraud. Furthermore, the 

very openness of the process should provide the public 

with a more complete understanding of the judicial 

system and a better perception of its fairness. 

Leucadia v. Applied Extrusion Tech., 998 F.2d 157, 161 

(3d Cir. 1993) (quoting Republic of the Philippines v.

Westinghouse Elec. Corp., 949 F.2d 653, 660 (3d Cir. 

1991)). 

For the reasons we have already explained, there is no 

common law right of access to grand jury materials. Unlike 

judicial records to which a presumption of access attaches 

when filed with a court, grand jury materials have 

historically been inaccessible to the press and the general 

public, and are therefore not judicial records in the same 

sense. See, e.g., Westinghouse, 949 F.2d at 660-62 (papers 

filed in connection with a motion for summary judgment); 

 29 
Littlejohn v. BIC Corp., 851 F.2d 673, 678-80 (3d Cir. 1988) 

(trial transcripts and exhibits admitted at trial); Bank of

America, 800 F.2d at 343-46 (settlement documents). 

Therefore, the newspapers have not established a common 

law right of access to the briefs or the hearing. 

V. Conclusion 

For the foregoing reasons, the order of the district court 

denying the newspapers' motion for access to the 

sentencing memorandum, the briefs filed under seal, and 

the hearing initially scheduled for April 28 (which may now 

go forward) will be affirmed. 

A True Copy: 

Teste: 

Clerk of the United States Court of Appeals

for the Third Circuit

 30