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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 Distr ict Judge for the Eastern District of Pennsylvania, sitting by design ation.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

2FAITH 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

3KEVIN 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 Ne ws, Inc. ("newspapers"), who unsuccessfully sought access to certain records and proceedings in the sentencing p hase of a criminal case in the district court, requires us to resolve

certain tensions between the media's First Amendmen t right of access to judicial proceedings and the rul e 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 o f criminal conduct against several individuals who ha ve not been charged with any crimes ("uncharged individual s"). The memorandum was addressed to the sentencing of J

. David Smith and Steven D'Andrea, who had been convi cted

4of various charges in connection with a state lotte ry

kickback scheme (which made the matter one of great public interest). At the same time that it submitte d the memorandum to the court, the government posted it o n its Internet website and made copies available to membe rs of the press, the public, and state lottery regulators

.

Smith and D'Andrea, Smith's employer GTECH Corporation (a company that provides computer and o ther services to state lottery authorities), and the unc harged individuals mentioned in the sentencing memorandum complained to the district court, contending that t he memorandum contained grand jury material, and asser ting that the government had violated Rule 6(e) by discl osing it to the public. The district court sealed the senten cing memorandum on the ground that 6(e) material was implicated, and, for the same reason, ordered the p arties to file under seal briefs concerning the extent to whi ch the sentencing memorandum was sourced in secret grand j ury material.

The newspapers filed a motion to intervene (which w as granted) and for access to the papers and proceedin gs. At a hearing on the motion, they contended that they h ad a First Amendment and a common law right of access thereto. The parties opposing access (Smith, D'Andr ea, GTECH, and those whose names are mentioned in the sentencing memorandum) objected that access would r esult in the disclosure of putative grand jury material i n violation of Rule 6(e). The district court agreed, and entere d 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 ha d violated Rule 6(e). The district court also made cl ear that, after it made its determination, all aspects of the proceedings (including the briefs and the transcrip t of the hearing) would be opened up (except to the extent prohibited by Rule 6(e)). The newspapers filed a ti mely appeal, and we stayed the hearing before the distri ct court pending our resolution of the matter.

We first conclude that the segment of the newspaper s' appeal seeking access to the sentencing memorandum is moot, as the newspapers already have copies of it. With

5respect to the briefs and hearing, even though the

proceedings at issue before the district court conc ern alleged government misconduct and hence public acce ss 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 ha ve before it previously undisclosed grand jury material. Moreove r, Rules 6(e)(5) and 6(e)(6) require a court to seal any pap ers or hearings "affecting" or "relating to" grand jury pr oceedings, which includes any proceedings that would disclose secret grand jury material. We conclude that grand jury se crets might be disclosed by the briefs and hearing to whi ch the newspapers seek access, and conclude that the distr ict court acted properly in ensuring that such material

remains confidential while it makes its determinati on 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 w ill not require the district court to redact the briefs or to open up the nonsecret aspects of the hearing, for that woul d be highly impractical and inefficient and would create a circus-like "revolving door" hearing. Moreover, alt hough 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 con tained in the sentencing memorandum is entitled to the protec tion afforded to it by the district court despite the fa ct that it has already been publicly disclosed. We will theref ore affirm the order of the district court sealing the briefs and the hearing and remand so that the district court can h old its

scheduled in camera hearing. If and when the district court determines that aspects of those briefs and hearing s are nonsecret, it shall, as it has already promised, di sclose those aspects to the public.

I. Facts and Procedural History

On October 4, 1996, Smith and D'Andrea were convict ed in the District Court of twenty felony counts arisi ng out of

6a state lottery kickback scheme following a jury tr ial. Smith

had been National Sales Manager of GTECH Corporatio n. In that capacity, he had received illegal payments fro m Benchmark Enterprises, Inc., a consulting firm owne d and operated by D'Andrea that was retained by GTECH.1

On January 15, 1997, before the parties had filed t heir 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 i ts Internet website and made copies available to the p ublic, the media, and to state lottery regulators. To supp ort the government's position that Smith and D'Andrea shoul d 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 agai nst the uncharged individuals.

On January 16, 1997, the day after the sentencing memorandum was publicly disclosed, counsel for GTEC H and the uncharged individuals named in the sentenci ng memorandum made an oral request before the district

court to be heard about the disclosure. The court h eld a hearing the next day. GTECH and the uncharged individuals contended that the sentencing memorandu m

___________________________________________________ ______________

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 sentencin g memorandum was actually filed with the district court like any oth er brief or whether it was simply forwarded directly to Judge Politan's chambe rs. The reason for the premature submission of the government's senten cing memorandum is also unclear. It appears that post-trial motions were delayed because Smith sought new counsel. As a result, the sentenci ng, originally scheduled for January 8, was postponed. When the se ntencing memorandum was submitted to the court, the Probatio n Office had not yet conducted its interviews of Smith or D'Andrea.

7contained grand jury material and that, as such, th e

government had violated Fed. R. Crim. P. 6(e) by di sclosing it to members of the public. These third parties we re joined by Smith and D'Andrea in also claiming that thefili ng 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 se al. The court also directed the government to remove the me mo 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 unde r 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 t here is sufficient implication of Rule 6(e) . . . to warran t closure."

On January 31, 1997, GTECH and the uncharged individuals filed under seal briefs alleging that t he government's disclosure of the sentencing memorandu m violated Fed. R. Crim. P. 6(e) and 32. The governme nt 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 memorand um,

___________________________________________________ ______________

3. The parties argued, in addition, that the disclo sure of the sentencing memorandum prior to the Probation Office's submissi on of the presentence report violated a standing order of the district court governing the sentencing process. This standing ord er contemplates that the probation officer will submit the final present ence investigation report to the court and the parties "not less than 7 business days prior to the date of the sentencing hearing." The governm ent is to submit the sentencing memorandum "not less than 5 business day s prior to the date of the sentencing hearing." In re Guideline Se ntencing , Standing Order (Sept. 1, 1994).

8the briefs filed under seal, and any hearing, conte nding

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 p apers and proceedings. At a hearing on the newspapers' mo tion on March 24, the district court granted the newspap ers' motion to intervene, but denied their request for a ccess to the sentencing memorandum, the briefs, and to the h earing (which it scheduled for April 28). The court inform ed the newspapers that "the very reason [the briefs are] s ealed 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 unf air and a disservice to the system of justice and to th is 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 Rul e 6(e)] hearing or shortly thereafter" it would disclose al l 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 bri efs, and the April 28 hearing. On April 24, 1997, we sta yed the April 28 hearing. We have appellate jurisdiction un der 28
U.S.C. § 1291 to review final decisions of the dist rict court.5 Orders either granting or, as in this case, denying access to court proceedings or records are appealable as fina l orders

___________________________________________________ ______________

4. At the district court level, the government did not oppose the newspapers' request for access to the papers and he aring, contending that it had done nothing improper by publicly discl osing the sentencing memorandum. On appeal, however, the government subm its that the papers and hearing must remain sealed temporarily s o that the district

court can determine in a deliberative fashion wheth er the disclosure of the sentencing memorandum was improper.

5. The district court had jurisdiction over the und erlying criminal prosecutions under 18 U.S.C. § 3231.

9under § 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 th at concerns access to the sentencing memorandum becaus e it is moot. The newspapers already possess the sentenc ing 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 discl osure of the sentencing memorandum, our resolution of whethe r there is a public right of access to them will nece ssarily impact on the question whether the district court a lso properly sealed the sentencing memorandum.

We exercise plenary review over whether the First Amendment or the common law creates a presumptive r ight of access to judicial documents or proceedings. Ant ar , 38 F.3d at 1356-57. Although we generally review the f actual findings of the district court for clear error, in the First Amendment context, we exercise independent appellat e review of the record. See Swineford v. Snyder Count y , 15 F.3d 1258, 1265 (3d Cir. 1994); United States v. Si mone , 14 F.3d 833, 836 (3d Cir. 1994). Thus, when we deal wi th a First Amendment right of access claim, our scope of review

___________________________________________________ ______________

6. GTECH contends that the newspapers' appeal is no t timely because their notice of appeal was filed more than sixty da ys after the district court's January 17 order sealing the sentencing mem o, the briefs, and any future hearings. We disagree. First, the distri ct court did not order the hearing closed until its April 1 order. Second, and more importantly, the newspapers were not parties to this action unti l April 1 when the district court granted their motion to intervene. T his issue was not ripe for appeal until that same day, when the district c ourt rejected the newspapers' challenge to the January 17 order.

7. In holding that the newspapers' request for publ ic access to the sentencing memorandum is moot, we do not hold that the dispute before the district court as to whether the government pro perly disclosed the sentencing memorandum is also moot.

10of 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 ju dicial proceedings and papers, we review the district cour t'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 News papers, Inc. v. Virginia , 448 U.S. 555 (1980), the Supreme Court held that the First Amendment provides a public rig ht of access to criminal trials. Tracing the history of o pen criminal trials from the days before the Norman Con quest, the Court found that criminal trials are covered by a "presumption of openness," and, as such, may be clo sed only if justified by an "overriding interest articu lated in findings." Id. at 573, 581. The Court has since extended that holding to other aspects of a criminal case, s ee, 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, a ffording a public right of access to additional aspects of c riminal proceedings, see, e.g. , Simone , 14 F.3d at 840 (post-trial hearings to investigate juror misconduct), and to t he

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 inquir y 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 an d process have historically been open to the press an d the general public." Id. The "logic" inquiry asks us to determine

11whether "public access plays a significant positive role in

the functioning of the particular process in questi on." Id.

We have identified six relevant societal interests that a court may consider in evaluating whether, for purpo ses 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 compl ete understanding of the judicial system; promotion of the public perception of fairness which can be achieved only by permitting full public view of the proceedi ngs; 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 absolut e right, but rather is a presumptive right. Although rare, c losure 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-Enterp rise I , 464 U.S. at 509. We have held that, for a district court to seal a criminal proceeding or records, "particulari zed findings must be made on the record in each case, ( 1) establishing the existence of a compelling governme ntal interest, and (2) demonstrating that absent limited restrictions upon the right of access, that other i nterest 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 acc ess to the sealed briefs and the upcoming hearing. They po int 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

12839. 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 sentenci ng memorandum was proper. Therefore, they submit, the papers and the hearing ultimately concern allegatio ns of government misconduct. Viewing the proceedings and related briefing through this lens, the newspapers claim that access to those proceedings and papers will pr omote the public's perception of fairness; foster an info rmed public discussion about the operations of the Unite d States Attorney's office; and provide public insight into how the judiciary resolves serious allegations of governmen t

misconduct.

The newspapers also point out that the district cou rt did not make any particularized findings that closure o f 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 exist s. Alternatively, they contend that, even if the distr ict court had made particularized findings, there is no compe lling interest that would justify the closure of the brie fs and the hearing.

In response, GTECH and the other parties opposing access (Smith, D'Andrea, and the government) conten d that there is no presumptive right of access to the brie fs or the hearing.9 They submit that the real issue before th e district court is whether the government improperly disclose d grand jury material in violation of Fed. R. Crim P. 6(e). Relying on Douglas Oil Co. v. Petrol Stops Northwes t , 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 publi c. They represent that the briefs and the hearings would re veal not only secret grand jury material that was disclosed by the

___________________________________________________ ______________

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

9. The uncharged individuals named in the sentencin g 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 at tention so that it can make a fully informed decision as to wh ether 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 g rand jurymaterial] 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 secrec y 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 clos ed to the public, and records of such proceedings have be en kept from the public eye." 441 U.S. at 218 n.9. The secr ecy of grand jury proceedings is a necessary incident to t he proper functioning of the grand jury system. The Court has :

noted several distinct interests served by safeguar ding the confidentiality of grand jury proceedings. Firs t, if preindictment proceedings were made public, many prospective witnesses would be hesitant to come forward voluntarily, knowing that those against who m they testify would be aware of that testimony. Moreover, witnesses who appeared before the grand jury would be less likely to testify fully and fran kly, as they would be open to retribution as well as

inducements. There also would be the risk that thos e about to be indicted would flee, or would try to influence individual jurors to vote against indictm ent. Finally, by preserving the secrecy of the proceedin gs, we assure that persons who are accused but

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10. The government attached a sealed affidavit to t his effect in the papers it filed in the district court.

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

public ridicule.

Id. at 218-19. Moreover, these "interests in grand jur y secrecy, although reduced, are not eliminated merel y because the grand jury has ended its activities." I d. at 222.11

Thus, Douglas Oil implicitly makes clear that grand jury proceedings are not subject to a First Amendment ri ght of access under the test of "experience and logic." Hi storically, such proceedings have been closed to the public. Mo reover, public access to grand jury proceedings would hinde r, rather than further, the efficient functioning of t he 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 conclu ded 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 t radition of grand jury secrecy, creating a general rule of confidentiality for all "matters occurring before t he grand jury." Rule 6(e) applies to "anything which may rev eal what occurred before the grand jury." Catania , 682 F.2d at 63. The core of this rule is an obligation on all perso ns who are present at grand jury proceedings not to disclose a ny matters disclosed at such proceedings.12 Any "know ing

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11. In this regard, we note that it is not clear fr om the record whether the grand jury proceedings that are potentially imp licated are ongoing. Because even completed grand jury proceedings and r ecords 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 exa mination, interpreters when needed and, for the purpose of ta king 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 d eliberating or voting.

15violation" of that obligation may be punished as co ntempt

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

Rule 6(e) provides only narrow exceptions to the ge neral rule of grand jury secrecy. For example, under Rule 6(e)(3)(A), grand jury secrets may be disclosed wit hout a court order to certain government personnel for pur poses limited to the federal criminal law enforcement. If such a disclosure is made, "[a]n attorney for the governme nt shall promptly provide the district court, before which w as impaneled the grand jury whose material has been so disclosed, with the names of the persons to whom su ch disclosure was made, and shall certify that the att orney 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 jur y materials must file a petition in the district cour t where the grand jury convened. Id. 6(e)(3)(D). Under Douglas Oil , as we noted above, such parties have the burden of sho wing that their need for access outweighs the public int erest in the secrecy of the grand jury materials.

To preserve the secrecy of grand jury proceedings, the district court must seal certain hearings and recor ds, although not grand jury proceedings themselves, whe n access to those hearings and records would jeopardi ze grand jury secrecy. Under Rule 6(e)(5), "[s]ubject to any right to an open hearing in contempt proceedings, t he 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

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13. To the extent that contempt proceedings may be held in open court, the right to public access is a right held by the p utative contemnor, not by the public. The contemnor must request open proc eedings. 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 con temnor's request, is the "final stage" of contempt proceedings. Levine v . United States , 362 U.S. 610, 618 (1960).

16is necessary to prevent disclosure of matters occur ring

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) a nd 6(e)(6) governing the closure of hearings "affecting" and p apers "relating to" grand jury proceedings. As the Second Circuit has recently explained, "[t]he plain language of th e Rule shows that Congress intended for its confidentialit y provisions to cover matters beyond those actually o ccurring 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 proce edings themselves, the rules provide a presumption of secr ecy to all proceedings that "affect" grand jury proceeding s. Concomitantly, not only are grand jury materials themselves to be kept secret, but so are all materi als that "relate to" grand jury proceedings.

The newspapers urge a narrow reading of those provisions, recognizing that, if the briefs and hea ring are subject to Rules 6(e)(5) and 6(e)(6), there is clea rly no First Amendment right of access to them. Not only would t here be no presumptive right of access to them, but if t he newspapers wanted access to the briefs and the hear ing, they would have the burden of showing that their ne ed 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 wheth er the government improperly disclosed grand jury mate rial 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 b efore the district court. We disagree.

Grand jury proceedings are interrupted and affected if matters occurring before the grand jury are disclos ed. That is because, as the Douglas Oil Court explained, the disclosure of what has occurred or is occurring bef ore the grand jury undermines the proper functioning of gra nd jury proceedings. Thus, Rules 6(e)(5) and Rule 6(e)(6) r equire a district court to seal any hearing or records that would

17publicly disclose matters occurring before the gran d 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 anyth ing that might tend to reveal what happened in the grand jur y room."). In other words, since it is indisputable t hat 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 supp ort 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 gra nd jury or are likely to occur before a grand jury with res pect to a pending or ongoing investigation must be conducted in camera in whole or in part in order to prevent publ ic disclosure of such secret information." Advisory Co mmittee Notes to Rule 6, 1983 Amendment. The Notes then go on to provide several examples of such a hearing. For ins tance, 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 ass ess some of the `matters occurring before the grand jur y' 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 disclos e 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 whethe r the briefs and hearing to which the newspapers seek acc ess are

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14. The commentary provides two additional examples of hearings "at which information about a particular grand jury pro ceeding might need to be discussed": "those at which the question is w hether to grant a grand jury witness immunity or whether to order a g rand jury witness to comply fully with the terms of a subpoena directed to him."

18subject to a First Amendment right of access. We

acknowledge at the outset the force of the newspape rs' contention that the proceedings before the district court in essence concern post-trial allegations of governmen t misconduct in a criminal case. Moreover, we agree w ith the newspapers that there is a significant public inter est in gaining access to proceedings that investigate alle gations of government misconduct. Nevertheless, even if the proceedings at issue concern possible government misconduct (so that the logic prong of the Press-En terprise

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 gran d jury proceeding. In other words, if the district court s eals a proceeding or brief because it would disclose grand jury matters, there is no First Amendment right of acces s to it even if it also concerns possible improper actions by government officials.

Thus, to determine whether the newspapers are corre ct that there is a presumptive right of access to the hearing and briefs, we must determine whether they will dis close 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 ult imate issue to be decided by the district court is whethe r attorneys for the government committed any wrongdoi ng by publicly releasing the sentencing memorandum, this question cannot be resolved without the district co urt's determining whether that sentencing memorandum includes Rule 6(e) material. Thus, the focus of the proceedings before the district court is on the que stion whether the disputed material contained in the sent encing memorandum is in fact grand jury material. In this proceeding, grand jury matters may potentially be d isclosed in two respects.

First, as the government has represented in its bri ef and at oral argument, in order to decide the matter, th e district court will have to consider previously undisclosed material that, the government represents, contains grand jur y secrets. According to the parties opposing access, these

19previously undisclosed materials have been submitte d to

the district court so that it can determine in an i nformed manner whether the sentencing memorandum contained Rule 6(e) material. At this juncture, since the gov ernment is in the unique position of knowing what transpired b efore the grand jury, we must accept the representation t hat undisclosed grand jury secrets will come out during the proceeding.

Second, the aspects of the sentencing memorandum it self that GTECH, Smith, and D'Andrea contend are entitle d to secrecy under Rule 6(e) will necessarily be disclos ed 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 r emains secret, for, otherwise, potentially confidential ma terial would be publicly disseminated before the court can decide whether those materials are actually secret. The ri sk that the briefs and hearing will disclose grand jury mat ters is significant enough that closure is warranted. Cf. D oe 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 ille gal surveillance and demanding that the government disc lose any such surveillance] poses a significant risk of disclosing information which has occurred or which may occur b efore 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 brief s and hearing will necessarily reveal grand jury material . We therefore conclude that the briefs and hearing to w hich the newspapers seek access are afforded secrecy under F ed. R. Crim. P. 6(e)(5) and 6(e)(6). Not only was the dist rict court justified in sealing them, it was required to do so absent a showing of an overriding interest. As such, there i s no presumptive First Amendment right of access thereto . For this reason, our inquiry ends here, and we do not r each the question whether the district court made particular ized findings that the need for closure outweighed the i nterest in public access, as is required under Antar , 38 F.3d at 1359, when a presumptive First Amendment right of access is

established.

20Several additional considerations support our concl usion

that there is no presumptive First Amendment right of access to the briefs or to the hearing. GTECH and t he other parties opposing access point out, quite convincing ly, that examining material in camera is a common method used by courts to make decisions without undermining the se cret or privileged nature of certain material. We have appr oved that method in several contexts, including the grand jur y. 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 privil ege. 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 proceed ings in the present matter might have been compromised by divulging the specific questions that the governmen t intended to ask during the daughter's testimony." I d. 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 o r secret, as in this case. For example, we have used that met hod to determine whether certain documents are protected b y 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 pract ice of holding in camera proceedings for determining whether the government can withhold documents from discovery ba sed on a claimed government privilege. See, e.g. , Kerr v. United

States District Court of the Northern District of C alifornia , 426 U.S. 394 (1976).

In a related vein, it is clear that the district co urt properly took steps to preserve the subject matter of the dispute pending its determination whether that subj ect

matter should be secret. Faced with a bona fide cla im that 6(e) material was disclosed in the sentencing memor andum, the court prevented further disclosures of that mat erial, thereby preserving the "status quo," while the part ies

21briefed 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 proceed ings 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 furt her 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 gr and jury secrets.15

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15. Because we conclude that the district court did not err in sealing the briefs and the hearing, we need not reach the quest ion whether Fed. R. Crim. P. 32, which governs the preparation of prese ntence investigation reports (PSR), would have permitted the district co urt to do the same. The district court, in sealing the briefs and heari ng, relied almost entirely on Rule 6(e). Although most of the argumen ts 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 inf ormation contained in a government sentencing memorandum is confidential is

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

some of that information.

The parties opposing access to the briefs and heari ng make a number of Rule 32 based arguments in support of the distri ct court's decision to seal the briefs and the hearing. First, they conten d that the sentencing memorandum (and by extension, the briefs and the he aring) disclosed (or will disclose) certain sensitive information that R ule 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 i nvestigation process.

More generally, the parties opposing access point t o 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 th e 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 State s 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. Charm er Indus. , 711 F.2d 1164, 1176 (2d Cir. 1983). Even though Rule 32 itse lf does not deal with

22C. 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 just ified in sealing the briefs and the hearing in their entiret y 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

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disclosure of the report to third parties, a number of courts have reasoned that, in addition to the fact that PSRs ha ve traditionally been confidential and only made available to the defenda nt in recent decades, "public disclosure . . . of the presentence report . . . would constitute a positive hindrance" of the sentencing process and o ngoing criminal investigations. Corbitt , 879 F.2d at 229. We ourselves have observed that "[t]here is a general presumption that the courts w ill 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 acces s to the sentencing memorandum, or to the briefs or hearing, which migh t disclose the information contained in the PSR. As they point out , sentencing memoranda typically include the same classes of sen sitive information as are included in presentence reports, such as crimin al history and characteristics, and not infrequently, as in this c ase, 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 r evolution in criminal sentencing spawned by the Sentencing Reform Act, 18 U.S.C. § 3551 et

seq. , and the U.S. Sentencing Guidelines, which have la rgely transformed sentencing into an adversary proceeding during which the sentencing judge makes record fact findings about t he material sentencing factors, it would seem that significant portions of the PSR need (and should) no longer be confidential. But ev en 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 ques tion 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 th e hearing should be disclosed to the public, it should also consider wh ether Rule 32 or related case law establishing the confidentiality o f PSRs would prohibit

the disclosure of that material.

23the nonsecret portions of the proceeding before the district

court. They make two related contentions. First, th ey point out that the district court made no findings that s ecret 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 a nd materials can be closed only "to the extent necessa ry to prevent disclosure of matters occurring before a gr and jury." According to the newspapers, even if the dis trict court can justifiably seal part of the briefs and t he hearing, the court must exercise this authority narrowly, an d only seal the particular aspects of the briefs and the h earing that warrant secrecy. Under these circumstances, th e newspapers contend, the district court erred in sea ling the briefs and the hearing in their entirety and should , instead, have redacted the briefs and held a two-part hearin g.

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 deli berations. That virtually concludes the issue. But we would ha ve 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 specifica lly, although the newspapers seek access only to the asp ects of the proceedings that the district court determines to be nonsecret, the district court simply cannot determi ne what

material is secret and what can be disclosed to the public without determining whether the sentencing memorand um contains Rule 6(e) material. Yet that decision, in turn,

cannot be made without the benefit of the briefs an d in particular, without the benefit of oral argument.

At such a hearing, according to the parties opposin g access, the parties will make legal arguments about the scope of Rule 6(e), as well as explain the fabric o f the grand jury proceedings at issue to the district court. It is not until the district court determines what constitutes gran d jury material in the context of this case, which it can do only at the conclusion of the proceedings before it, that i t will know what aspects of the briefs, the hearing, and the se ntencing memorandum to make public, if any.

24The newspapers have expressed concern that a distri ct

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 no t present during the grand jury investigation, and, therefore , have no basis for knowing what exactly constitutes 6(e) mat erial in this particular case. We conclude, however, that GT ECH and the other parties have made at least a colorabl e showing that 6(e) materials were implicated, and as noted above, the U.S. Attorney was particularly forthcomi ng. 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 Rul e 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 e ssence, have the district court conduct a "revolving door" hearing to

which the media would be let in and then excluded f rom time to time (or minute to minute) depending on whe ther grand jury material (or putative grand jury materia l) was

under consideration. But courts cannot conduct thei r 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, impracti cal, and inefficient. The same would be true of requirin g the

district court to redact the briefs. The district c ourt has informed the parties that it will disclose all nons ecret aspects of the sentencing memorandum, the briefs, a nd the hearing as soon as it determines which aspects of t hose papers and proceedings are secret. Under the circumstances we have described, that access is eno ugh to satisfy any right of access that the newspapers may have to the nonsecret aspects of the proceedings.

25D. 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 hea ring in this case because the First Amendment guarantees ac cess to grand jury or other confidential matters to the extent that that information has already been publicly dis closed. 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 t o protect is no longer secret. We reject this argumen t.

As we have already noted, the proceedings before th e district court will involve the consideration of pr eviously 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 prot ection, the proceedings, if public, will, for the reasons w e have described, disclose additional confidential materia l. Since we have held that the district court is not require d to conduct a revolving door hearing, in which it would seal only those portions of the proceedings that might r eveal 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 gra nd 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 preve nt 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 a t least some protection from disclosure.

The Supreme Court's decision in United States v. Se lls Engineering, Inc. , 463 U.S. 418 (1983), is instructive on this point. In that case, lawyers in the Justice Departm ent's Civil Division had access to certain grand jury mat erials for two years before the Ninth Circuit held that those lawyers

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

which governs disclosure to other government lawyer s. The Supreme Court noted that the case was not moot, des pite government protestations to the contrary: " `The co ntroversy here is still a live one. . . . Each day this order remains effective the veil of secrecy is lifted higher by d isclosure 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 lo st 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 Spec ial March 1981 Grand Jury , 753 F.2d 575, 577 (7th Cir. 1985) ("If the Court orders such disclosure erroneously, we suppos e 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 omitt ed));

United States v. Nix , 21 F.3d 347, 350 (9th Cir. 1994) ("We faced a somewhat similar situation in [Sells Engine ering ]. . . . We acknowledged that secrecy could not be res tored, but held that the appeal was not moot because issue s relating to future disclosure needed to be addresse d.").16

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16. The cases relied on by the newspapers on this p oint 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 rel ating to a change of venue motion in a well-publicized criminal case. Th e district court concluded that closure was necessary in order to pr event "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 impermis sible." Id. at 855. Unlike the case before us, however, Charlotte Obser ver I involved only the republication of matters of public record. As s uch, the court found there was a presumptive right of access to the proc eedings, and the only

issue before it was whether the defendants' interes t 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 distric t

27We acknowledge that the circumstances of this case are

different from those before the Supreme Court in Se lls Engineering because the potential grand jury secrets

disclosed here were disseminated to members of the public, rather than to certain, identifiable government law yers and their staffs. The order entered by the district cou rt in this case cannot effectively bar further dissemination o f any potential grand jury secrets by members of the publ ic who possess the sentencing memorandum.17 Nevertheless, this difference in the degree of disclosure does not cha nge the result in this case. Although the district court co uld not prevent the newspapers from publishing the sentenci ng memorandum once they came into possession of it, th e court properly prevented further government disclos ures of the putative grand jury secrets contained in the se ntencing memorandum to additional parties. Even if the dissemination by members of the public continues, t he

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court enjoining two reporters from publishing confi dential 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 i n the courtroom, a particularly public forum. Once announced to the wo rld, the information lost its secret characteristic, an aspect that coul d 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 inadvertent ly disclosed was the name of a lawyer who was the target of an ongoing g rand jury investigation. Despite the court's language, howeve r, its holding was based in the law of prior restraint: the district c ourt'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 dis trict court's order does not bar the newspapers from publishing the sentenci ng memorandum in their possession.

17. Nor could the court enter an order barring part ies in possession of the sentencing memorandum from passing the memorand um onto other parties. Under prior restraint law, orders prohibit ing the media from publishing information already in its possession ar e 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).

28order barring further disclosure of any secret gran d 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 brief s and to the hearing. This court has often acknowledged t he existence of a common law right " `to inspect and c opy public records and documents, including judicial re cords

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 righ t of access also applies to judicial proceedings. See Ba nk of America Nat'l Trust & Savings Ass'n v. Hotel Ritten house

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 righ t in civil cases promotes public confidence in the judic ial system . . . . As with other branches of government , the bright light cast upon the judicial process by publ ic observation diminishes the possibilities for injust ice, incompetence, perjury, and fraud. Furthermore, the very openness of the process should provide the pub lic 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 a ttaches 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 t he same sense. See, e.g. , Westinghouse , 949 F.2d at 660-62 (papers filed in connection with a motion for summary judgm ent);

29Littlejohn 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 co mmon law right of access to the briefs or the hearing.

V. Conclusion

For the foregoing reasons, the order of the distric t 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