                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-30-1996

United States v. Preate
Precedential or Non-Precedential:

Docket 95-7651




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Recommended Citation
"United States v. Preate" (1996). 1996 Decisions. Paper 133.
http://digitalcommons.law.villanova.edu/thirdcircuit_1996/133


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                UNITED STATES COURT OF APPEALS
                    FOR THE THIRD CIRCUIT

                            ___________

                            NO. 95-7651
                            ___________

                    UNITED STATES OF AMERICA

                                   v.

                        ERNEST D. PREATE, JR.

                           PG PUBLISHING,
                                   Appellant

                  ____________________________

        On Appeal From the United States District Court
            For the Middle District of Pennsylvania
                   (D.C. Cr. No. 95-cr-00153)
                  ____________________________

                        Argued:   June 4, 1996

         Before: BECKER, MANSMANN, Circuit Judges, and
BROTMAN, District Judge.

(Filed July 30, 1996)


Robert B. Hoffman, Esquire (ARGUED)
W. Thomas McGough, Jr., Esquire
Renee C. Mattei, Esquire
Reed, Smith, Shaw & McClay
213 Market Street, 9th Floor
P.O. Box 11844
Harrisburg, PA   17108

Attorney for Appellant

William A. Behe, Esquire (ARGUED)
David M. Barasch, Esquire
Office of United States Attorney
Federal Building
228 Walnut Street
P.O. Box 11754
Harrisburg, PA 17108

Attorney for United States of America, Appellee

Edward S. G. Dennis, Jr., Esquire
Victor T. Limongelli, Esquire (ARGUED)
John C. Dodds, Esquire
Morgan, Lewis & Bockius
2000 One Logan Square
Philadelphia, PA   19103

Attorney for Ernest D. Preate, Jr., Appellee

                  _____________________________

                       OPINION OF THE COURT
                  _____________________________

BECKER, Circuit Judge.
         The ultimate question in this appeal is whether the
district court abused its discretion in declining to continue a
sentencing proceeding so that a newspaper could fully litigate
its motion to unseal sentencing documents. The defendant has now
been sentenced and the district court, after sentencing, unsealed
the requested material. The continuance question, however, is
capable of repetition yet evading review, and hence the appeal is
not moot. Reaching the merits, we conclude that the district
court did not abuse its discretion in refusing to postpone the
sentencing. We will therefore affirm the judgment of the
district court.

                 I. Facts and Procedural History
         Like most media access cases, this one revolves around
a cause celebre. The central character in the affair is Ernest
Preate, formerly Attorney General of Pennsylvania. Preate pled
guilty to a one count Information charging him with mail fraud in
connection with illegal campaign contributions.
         On October 16, 1996, the district court held an in-
chambers conference at which the government and defense counsel
discussed objections by both parties to Preate's presentence
report. United States v. Preate, No. Crim.1:CR-95-153, 1996 WL
271843 (M.D. Pa. May 20, 1996). A court reporter filed the
transcript of the proceedings. On October 23, 1995, the court
issued a one sentence order directing that "the transcript of the
October 16, 1995, in-chambers conference [be] sealed until
further order of court." Appellant's Brief at 3. After the
conference, the government wished to offer evidence supporting
the sentencing enhancements it was seeking. The court directed
that the government submit an in camera proffer of this evidence.
The government did so on November 6, 1995.
         On November 13, 1995, appellant PG Publishing,
publisher of the Pittsburgh Post-Gazette, moved to unseal the in
camera submission and the transcript of the in-chambers
conference. Via this motion, PG Publishing sought to expose the
full facts of Preate's offense to public view.
         Concluding that the district court would not reach the
merits of its motion prior to Preate's December 14, 1995,
sentencing, PG Publishing filed with this Court on November 16,
1995, an Emergency Petition for a Writ of Mandamus. In the wake
of this filing, the district court took no action on the motion
to unseal (except to place its reasons for sealing on the
record).
         On December 6, 1995, PG Publishing moved in the
district court to continue the sentencing pending court of
appeals action on its mandamus petition. In the same motion, PG
Publishing also sought intervenor status. Although the
government had consistently supported PG Publishing with respect
to open proceedings, it opposed the motion to continue
sentencing. Preate also opposed the motion. By Order of
December 8, 1995, the district court denied the Motion to
Continue Sentencing and further denied PG Publishing intervenor
status. The Order explained the basis for these actions: PG
Publishing "fails to explain what harm it will suffer if
Defendant is sentenced before the Third Circuit rules on its
mandamus petition, or what interest it has in the date of
Defendant's sentencing." Appellant's Brief at 6. On December 9,
1995, PG Publishing filed the Notice of Appeal that is presently
before us.
         On December 11, 1995, PG Publishing filed with this
Court an emergency motion to stay sentencing pending
determination of its emergency petition for Writ of Mandamus. We
denied that motion on December 12, 1995. On December 14, 1995,
Preate was sentenced. On January 17, 1996, we denied the
Petition for a Writ of Mandamus, "without prejudice to the
petitioner seeking whatever relief it deems appropriate if the
district court denies its motion to unseal the documents." Id.
at 7.
         On May 20, 1996, shortly before this appeal of the
December 8, 1995, continuance ruling was scheduled to be heard,
the district court granted PG Publishing's November 15, 1995,
motion to unseal the transcript and the in camera proffer. The
government and Preate, having moved to dismiss this appeal as
moot because Preate had already been sentenced, supplemented
their motion, referencing this new order as an additional ground
for dismissal. PG Publishing filed papers in opposition.

                          II. Mootness
         PG Publishing argues that the district court erred in
denying its motion to continue sentencing. Both Preate and the
government maintain that this appeal is moot because Preate has
already been sentenced. While it is true that Preate cannot be
"unsentenced," this appeal is not moot because, as PG Publishing
contends, the issue is capable of repetition yet evading review.
See, e.g., Wagner v. Fair Acres Geriatric Ctr., 49 F.3d 1002,
1008 n.7 (3d Cir. 1995).
         The fact is that there will almost never be enough time
between a motion by the media to continue a sentencing and the
date of the sentencing to permit an access issue to be fully
litigated (at the trial and appellate levels). Under such
circumstances, our case law makes clear that the issue is not
moot. See, e.g., United States v. Antar, 38 F.3d 1348, 1356 (3d
Cir. 1994) (challenge to sealing of voir dire transcript not
mooted by conclusion of criminal trial); United States v. A.D.,
28 F.3d 1353, 1355 n.1 (3d Cir. 1994) (PG Publishing's motion to
intervene and to unseal juvenile records not mooted by conclusion
of proceedings against juveniles); United States v. Simone, 14
F.3d 833, 836 (3d Cir. 1994) (newspaper's motion to intervene and
for access to closed post-trial proceeding not moot after
proceedings were closed and concluded); United States v. Raffoul,
826 F.2d 218, 222 (3d Cir. 1987) (closure of courtroom during
defendant's testimony not moot though proceedings are concluded);
United States v. Criden, 675 F.2d 550, 553-54 (3d Cir. 1982)
(sealing of pre-trial hearing and transcript not moot though
proceeding concluded and transcript publicly available).

         III. Did the District Court Abuse Its Discretion
             in Refusing to Continue the Sentencing
         We review the district court's decision to deny PG
Publishing's request for continuance for abuse of discretion.
Pansy v. Borough of Stroudsburg, 23 F.3d 772, 777, 783 (3d Cir.
1994). This is an issue that need not detain us long. We note
at the outset the basic proposition that our review of matters
pertaining to calendar management by the district courts,
including the scheduling of sentencing proceedings, is extremely
deferential. See Lacey v. Cessna Aircraft Co., 932 F.2d 170, 178
(3d Cir. 1991).
         Our earlier cases, including Criden and Raffoul, have
stressed that pretrial or trial motions for closure be docketed
in order to allow interested members of the public to protest
such closure. See United States v. Raffoul, 826 F.2d 218, 221
(3d Cir. 1987); United States v. Criden, 675 F.2d 550, 559 (3d
Cir. 1982). However, we have never held that an open sentencing
proceeding be delayed while the propriety of closure of documents
relevant to that proceeding is litigated. We decline to do so
under the unique set of facts presented here.
           In this particular case, the district court was
confronted with an extraordinarily high profile situation. The
publicity had been enormous throughout all of Pennsylvania. The
United States Attorney's Office was pressing for an early
sentencing to prevent the defendant, the State's chief law
enforcement officer, from further disseminating, through
statements reported in the media, his allegedly misleading "spin"
on the facts of his conviction. It properly wanted to conclude
this important case as soon as possible. The defendant himself
opposed a continuance. The sentencing was open and could be
reported, hence there was no "news blackout." We cannot say
that, under those circumstances, the district court abused its
discretion in refusing to continue the sentencing. Its order
denying the motion for continuance will therefore be affirmed.
                      _____________________
