                                                                                                                           Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-8-1994

United States of America v. A.D.
Precedential or Non-Precedential:

Docket 93-3197




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     UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT



 N0S. 93-3197, 93-3205, 93-3209, 93-3225




        UNITED STATES OF AMERICA

                   v.

                  A.D.

          PG PUBLISHING COMPANY,
PUBLISHER OF THE PITTSBURGH POST GAZETTE*

                    Appellant in No. 93-3197

   (*Pursuant to Rule 12(a), F.R.A.P.)


        UNITED STATES OF AMERICA

                   v.

                  T.Y.

          PG PUBLISHING COMPANY,
PUBLISHER OF THE PITTSBURGH POST GAZETTE*

                    Appellant in No. 93-3205

   (*Pursuant to Rule 12(a), F.R.A.P.)


        UNITED STATES OF AMERICA

                   v.

                  T.Y.

 THE TRIBUNE-REVIEW PUBLISHING COMPANY*

                    Appellant in No. 93-3209

   (*Pursuant to Rule 12(a), F.R.A.P.)


                   1
2
              UNITED STATES OF AMERICA

                         v.

                        A.D.

       TRIBUNE-REVIEW PUBLISHING COMPANY*

                         Appellant in No. 93-3225

      (*Pursuant to Rule 12(a), F.R.A.P.)



 On Appeal From the United States District Court
    For the Western District of Pennsylvania
(D.C. Crim. Action Nos. 93-00053-01, 93-00054-01)


              Argued November 4, 1993

 BEFORE:    SLOVITER, Chief Judge, and STAPLETON,
            Circuit Judge, and RESTANI,** Judge,
            United States Court of International
            Trade

           (Opinion Filed:    July 8, 1994)



                  W. Thomas McGough, Jr. (Argued)
                  Marketa Sims
                  Reed, Smith, Shaw & McClay
                  435 Sixth Avenue
                  Pittsburgh, PA 15219

                         Attorneys for Appellant
                         PG Publishing Company


                  Susan A. Yohe (Argued)
                  Ronald D. Barber
                  Strassburger, McKenna, Gutnick & Potter
                  322 Boulevard of the Allies
                  Pittsburgh, PA 15222

                         Attorneys for Appellant
                         Tribune-Review Publishing Company




                         3
** Honorable Jane A. Restani, Judge of the United States Court of
   International Trade, sitting by designation.




                               4
                          Thomas W. Corbett, Jr.
                          United States Attorney
                          Paul J. Brysh (Argued)
                          Assistant United States Attorney
                          633 U.S. Post Office and Courthouse
                          Pittsburgh, PA 15219

                                 Attorneys for Appellee




                        OPINION OF THE COURT




STAPLETON, Circuit Judge:



          This appeal requires us to apply the confidentiality

provisions of the Juvenile Delinquency Act, 18 U.S.C. §§ 5031-42

("the Act").   We hold that the Act gives district judges

authority to regulate access to the record of proceedings under

the Act on a case-by-case basis through a balancing of interests.



                                 I.

          A.D. and T.Y., juveniles, were arrested in connection

with gang-related armed robberies of Pittsburgh-area convenience,

clothing, and food stores.   To initiate federal juvenile

delinquency proceedings against A.D. and T.Y., the United States

filed informations.   The government also sought to detain A.D.

and T.Y., so detention hearings were scheduled before a

magistrate.    PG Publishing Co., publisher of the Pittsburgh Post-

Gazette, learned that the government would seek to close the

detention hearings and appeared before the magistrate to object.


                                 5
After hearing from the Post-Gazette, the government, and the

juveniles, the magistrate closed the detention hearings on the

ground that the Act mandates closure of all federal juvenile

delinquency proceedings.

           Following the detention hearings, the Post-Gazette

filed motions to intervene in the two delinquency proceedings, as

well as a motion to open the record of the detention hearings and

to hold all further proceedings in open court.   Tribune-Review

Publishing Co., publisher of the Tribune-Review, filed similar

motions.

           In support of their motions, the newspapers argued that

the Act does not mandate closed proceedings and records and that,

in any event, the First Amendment requires the district court to

make a discretionary determination on the need for

confidentiality on a case-by-case basis.   The government argued

that the Act mandates closed proceedings and records and that the

Constitution permits closure.   A.D. and T.Y. also argued in favor

of closure.   The district judge granted the motions to intervene

but denied the motions to open the proceedings and to unseal the

records.   The newspapers filed this timely appeal.0
0
 Before this opinion was published, the proceedings against A.D.
and T.Y. apparently concluded and the outcomes were reported in
the press. See Mike Bucsko, 15 years for armed robber, 18,
Pittsburgh Post-Gazette, Dec. 17, 1993, at B12. We nevertheless
find that this case is not moot. The newspapers sought not only
access to the court proceedings but also to the record of the
proceedings, and such relief could still be granted.

          In addition, we are of the opinion that the dispute
between the newspapers and the government over access to juvenile
proceedings is "capable of repetition, yet evading review."
Southern Pac. Terminal Co. v. Interstate Commerce Comm'n, 219


                                 6
                                II.

            Under the Act, persons who violate the laws of the

United States before reaching their eighteenth birthday may be

subject to federal juvenile delinquency proceedings, provided

that proceedings against them begin before their twenty-first

birthday.   §§ 5031-32.   Provision is made for representation by

counsel, § 5034, custody prior to disposition, §§ 5033 & 5035,

and speedy trials, § 5036.    After a juvenile is adjudged

delinquent, a dispositional hearing is held, and the juvenile may

be committed to official detention, placed on probation, or

ordered to make restitution.    § 5037(a).        Observation and study

of the juvenile can also be ordered.        § 5037(d).   Juveniles

cannot be jailed with adults, and must be provided adequate

facilities, care, and treatment.        § 5039.   Juveniles suspected of

engaging in certain conduct may be subject to criminal

prosecution as adults.    § 5032.

            The Act also contains several confidentiality

provisions, which are at issue in this case.         The first of these,

§ 5032, provides in relevant part:


U.S. 498, 515 (1911). "[I]n the absence of a class action, the
'capable of repetition, yet evading review' doctrine [is] limited
to the situation where two elements combined: (1) the challenged
action was in its duration too short to be fully litigated prior
to its cessation or expiration, and (2) there was a reasonable
expectation that the same complaining party would be subjected to
the same action again." Weinstein v. Bradford, 423 U.S. 147, 149
(1975). Both elements combined in this case -- the newspapers
promptly sought access to the juvenile court proceedings, but
were unable to complete litigation before the proceedings
terminated, and other proceedings against other juveniles almost
certainly will follow, to which the newspapers are again likely
to seek access.


                                    7
          . . . any proceedings against [an alleged
          juvenile delinquent] shall be in an
          appropriate district court of the United
          States. For such purposes, the court may be
          convened at any time and place within the
          district, in chambers or otherwise. . . .


The second disputed provision, § 5038, provides in relevant part:
          (a) Throughout and upon completion of the
          juvenile delinquency proceedings, the records
          shall be safeguarded from disclosure to
          unauthorized persons. The records shall be
          released to the extent necessary to meet the
          following circumstances:

               (1) inquiries received from another
               court of law;

               (2) inquiries from an agency
               preparing a presentence report for
               another court;

               (3) inquiries from law enforcement
               agencies where the request for
               information is related to the
               investigation of a crime or a
               position within that agency;

               (4) inquiries, in writing, from the
               director of a treatment agency or
               the director of a facility to which
               the juvenile has been committed by
               the court;

               (5) inquiries from an agency
               considering the person for a
               position immediately and directly
               affecting the national security;
               and

               (6) inquiries from any victim of such
               juvenile delinquency, or if the victim
               is deceased from the immediate family of
               such victim, related to the final
               disposition of such juvenile by the
               court in accordance with section 5037.

          Unless otherwise authorized by this section,
          information about the juvenile record may not


                               8
            be released when the request for information
            is related to an application for employment,
            license, bonding, or any civil right or
            privilege. Responses to such inquiries shall
            not be different from responses made about
            persons who have never been involved in a
            delinquency proceeding.

                                * * *

            (c) During the course of any juvenile
            delinquency proceeding, all information and
            records relating to the proceeding, which are
            obtained or prepared in the discharge of an
            official duty by an employee of the court or
            an employee of any other government agency,
            shall not be disclosed directly or indirectly
            to anyone other than the judge, counsel for
            the juvenile and the Government, or others
            entitled under this section to receive
            juvenile records.

                                * * *

            (e) Unless a juvenile who is taken into
            custody is prosecuted as an adult neither the
            name nor picture of any juvenile shall be
            made public in connection with a juvenile
            delinquency proceeding.


                                III.

            The government argues that these confidentiality
provisions mandate the closure of all juvenile proceedings and

the sealing of all records.    We decline the newspaper's

invitation to decide whether this construction of the Act is

consistent with the First Amendment.    Nevertheless, we start with

the proposition that the task of statutory interpretation we here

face implicates First Amendment values and that the government's

construction of the Act raises a substantial constitutional

question.



                                 9
          The First Amendment provides a right of public access

in both civil and criminal cases.0   We have catalogued the

interests protected by that right in the context of criminal

proceedings:


          First, public access to criminal proceedings
          promotes informed discussion of governmental
          affairs by providing the public with a more
          complete understanding of the judicial
          system. This public access and the knowledge
          gained thereby serve an important educative
          interest. Second, public access to criminal
          proceedings gives the assurance that the
          proceedings were conducted fairly to all
          concerned and promotes the public perception
          of fairness. Public confidence in and
          respect for the judicial system can be
          achieved only by permitting full public view
          of the proceedings. Third, public access to
          criminal proceedings has a significant
          community therapeutic value because it
          provides an outlet for community concern,
          hostility, and emotion. Fourth, public
0
 See, e.g., Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 3
(1986) ("Press-Enterprise II") ("First Amendment right of access
to the transcript of a preliminary hearing growing out of a
criminal prosecution"); Press-Enterprise Co. v. Superior Court of
California, 464 U.S. 501, 508-10 (1984) ("Press-Enterprise I")
(First Amendment values create presumption of openness for voir
dire); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580
(1980) (plurality opinion ) ("the right to attend criminal trials
is implicit in the guarantees of the First Amendment"); United
States v. Simone, 14 F.3d 833, 840 (3d Cir. 1994) ("the First
Amendment right of access attaches to a post-trial hearing to
investigate jury misconduct"); Republic of Philippines v.
Westinghouse Elec. Corp., 949 F.2d 653, 659 (3d Cir. 1991) ("the
First Amendment, independent of the common law, protects the
public's right of access to the records of civil proceedings");
Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1070 (3d Cir.
1984) ("the First Amendment embraces a right of access to civil
trials"); United States v. Criden, 675 F.2d 550, 554 (3d Cir.
1982) ("Criden II") ("the public has a first amendment right of
access to pretrial suppression, due process, and entrapment
hearings").



                               10
          access to criminal proceedings serves as a
          check on corrupt practices by exposing the
          judicial process to public scrutiny, thus
          discouraging decisions based on secret bias
          or partiality. Fifth, public access to
          criminal proceedings enhances the performance
          of all involved. Finally, public access to
          criminal proceedings discourages perjury.


United States v. Criden, 675 F.2d 550, 556 (3d Cir. 1982)
("Criden II") (internal quotation marks omitted) (citing Richmond

Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980)).

             This "First Amendment right of access is not absolute."

United States v. Simone, 14 F.3d 833, 840 (3d Cir. 1994).

Competing values may warrant a denial of access to proceedings

and records in some instances.    See Press-Enterprise Co. v.

Superior Court, 478 U.S. 1, 9 (1986) ("Press-Enterprise II").

Where there has been such a denial, whether resulting from

legislative or judicial action, courts confronted with a First

Amendment challenge ask whether the closure is "essential to

preserve higher values" and "narrowly tailored to serve that

interest."    Press-Enterprise Co. v. Superior Court, 464 U.S. 501,
510 (1984) ("Press-Enterprise I").     If an alternative would serve

the interest well and intrude less on First Amendment values, a

denial of public access cannot stand.     See United States v.

Raffoul, 826 F.2d 218, 224-25 (3d Cir. 1987).    For this reason,

the proponent of a legislatively imposed denial of access in a

stipulated category of cases, where the trial judge is not free

to weigh the competing interests on a case-by-case basis, has a

difficult burden to carry.




                                  11
             Juvenile courts have been created in every state during

the last century.     See In re Gault, 387 U.S. 1, 15-19 (1967).

Recognizing the special sensitivity of information regarding

juveniles and the impact that public dissemination of such

information may have on the youths involved, states have devised

a number of different approaches to accommodate these concerns.

For the most part, these have not involved blanket prohibitions

of access.    See Note, The Public Right of Access to Juvenile

Delinquency Hearings, 81 Mich L. Rev. 1540, 1540 n.3 (1983).        It

remains true, as the Supreme Court observed in 1967, that

"[d]isclosure of court records is discretionary with the judge in

most jurisdictions."    Gault, 387 U.S. at 24.

          Neither the Supreme Court nor this court has had

occasion to decide whether an across-the-board ban on access to

juvenile proceedings would accord with the First Amendment.        The

Supreme Court did address in Globe Newspaper Co. v. Superior

Court, 457 U.S. 596 (1981), whether the First Amendment permits a

statutory bar to public access to criminal trials during the

testimony of minor victims of sex crimes.    The appellee urged

that the statute served two compelling state interests:     "the

protection of minor victims of sex crimes from further trauma and

embarrassment; and the encouragement of victims to come forward

and testify in a truthful and credible manner."     Id. at 607.    The

Supreme Court acknowledged that both of these interests were

compelling.    It held, however, that neither would justify an

across-the-board ban on access in every instance involving a

minor sex victim:


                                  12
          [A]s compelling as that interest [in
          protecting minor victims of sex crimes] is,
          it does not justify a mandatory closure rule,
          for it is clear that the circumstances of the
          particular case may affect the significance
          of the interest. A trial court can determine
          on a case-by-case basis whether closure is
          necessary to protect the welfare of a minor
          victim. Among the factors to be weighed are
          the minor victim's age, psychological
          maturity and understanding, the nature of the
          crime, and desires of the victim, and the
          interests of parents and relatives. Section
          16A, in contrast, requires closure even if
          the victim does not seek the exclusion of the
          press and general public, and would not
          suffer injury by their presence. . . . If
          the trial court [in the case before us] had
          been permitted to exercise its discretion,
          closure might well have been deemed
          unnecessary. In short, § 16A cannot be
          viewed as a narrowly tailored means of
          accommodating the State's asserted interest:
          That interest could be served just as well by
          requiring the trial court to determine on a
          case-by-case basis whether the State's
          legitimate concern for the well-being of the
          minor victim necessitates closure. Such an
          approach ensures that the constitutional
          right of the press and the public to gain
          access to criminal trials will not be
          restricted except where necessary to protect
          the State's interest.

Id. at 607-08.   The Supreme Court added:

               We emphasize that our holding is a
          narrow one: that a rule of mandatory closure
          respecting the testimony of minor sex victims
          is constitutionally infirm. In individual
          cases, and under appropriate circumstances,
          the First Amendment does not necessarily
          stand as a bar to the exclusion from the
          courtroom of the press and general public
          during the testimony of minor sex-offense
          victims. But a mandatory rule, requiring no
          particularized determinations in individual
          cases, is unconstitutional.
Id. at 611, n.27.



                                13
          Globe is not controlling in this case.     It concerned

criminal trials, which historically have been open to the press

and general public.    See Globe, 596 U.S. at 605 ("when our

organic laws were adopted, criminal trials both here and in

England had long been presumptively open") (quoting Richmond

Newspapers, Inc. v. Virginia, 448 U.S. 555, 569 (1980) (plurality

opinion)).     No centuries-old tradition of openness exists for

juvenile proceedings, which are a relatively recent creation, and

proceedings to determine whether a juvenile is a delinquent are

not generally regarded as criminal proceedings.     See, e.g.,

United States v. Brian N., 900 F.2d 218, 220 (10th Cir. 1990)

("Under [the Juvenile Delinquency Act], prosecution results in an

adjudication of status, not a criminal conviction.").

Nevertheless, the detention and delinquency proceedings called

for in the Act are closely analogous to criminal proceedings, and

all the public interests in criminal proceedings that we

catalogued in Criden II, 675 F.2d at 556, seem present and

equally cogent here.     Of equal importance, we cannot say that the

countervailing interests that would be served by denying public

access to proceedings under the Act are any more compelling than

those that the Supreme Court acknowledged were being served by

the challenged statute in Globe.
             Thus, while Globe is not on all fours with the

situation before us, it does suggest that an across-the-board ban

on access to juvenile proceedings under the Act would pose a

substantial constitutional issue.      Accordingly, we will apply the

well established rule of statutory construction articulated in


                                  14
DeBartolo Corp. v. Florida Gulf Coast Trades Council, 485 U.S.

568, 575 (1988):
          [W]here an otherwise acceptable construction
          of a statute would raise serious
          constitutional problems, the Court will
          construe the statute to avoid such problems
          unless such construction is plainly contrary
          to the intent of Congress. Catholic Bishop,
          supra, at 499-501, 504. This cardinal
          principle has its roots in Chief Justice
          Marshall's opinion for the Court in Murray v.
          The Charming Betsy, 2 Cranch 64, 118 (1804),
          and has for so long been applied by this
          Court that it is beyond debate. . . . As was
          stated in Hooper v. California, 155 U.S. 648,
          657 (1895), "[t]he elementary rule is that
          every reasonable construction must be
          resorted to, in order to save a statute from
          unconstitutionality." This approach not only
          reflects the prudential concern that
          constitutional issues not be needlessly
          confronted, but also recognizes that
          Congress, like this Court, is bound by and
          swears an oath to uphold the Constitution.

Accordingly, in the absence of an unambiguous directive to the

contrary, we are reluctant to attribute to Congress an intention

to deprive district courts of discretion to strike on a case-by-

case basis the balance between the interests protected by the

First Amendment and competing privacy interests.   When we examine

the Act with care, we fail to find such a directive.



                               IV.

          We first focus on § 5032 and its provision that "court

may be convened at any time and place within the district, in

chambers or otherwise."   This provision, in our view, evidences a

congressional expectation that district judges will exercise

their discretion when they decide where to hold hearings under


                                15
the Act.   Moreover, the addition of "in chambers or otherwise"

suggests that this discretion is to include a decision regarding

the availability and degree of public access -- we can think of

no other persuasive reason for the inclusion of this clause.

Thus, to our minds, § 5032 provides strong evidence that Congress

did not intend an across-the-board ban on public access to

proceedings under the Act.

           When we turn to § 5038(a), we find additional evidence

for this proposition and implicit recognition that the court

retains discretion with respect to access to judicial records. We

read this section as directed to protection of the court's

records "of the juvenile delinquency proceeding," including the

transcript.0    As a result, we understand the term "released" to

refer to action the court authorizes.    Section 5038(a) does not

mandate denial of access to the records of a proceeding -- it

provides only that such records be "safeguarded against

disclosure to unauthorized persons."    § 5038(a) (emphasis

supplied).     The court is barred from authorizing access only in

those situations involving "information about the juvenile record

. . . when the request for information is related to an

application for employment, license, bonding or any civil right

or privilege."    Even in these few situations singled out in the

0
 The focus on protecting the court's record was clearer under the
version of § 5038(a) which existed prior to its amendment in 1984
and provided that "the district court shall order the entire file
and record of such proceeding sealed." There is no suggestion in
the text or legislative history of the 1984 amendment that the
subject matter of this subsection was being changed. See Sen.
Rep. No. 225, 98th Cong., 2d Sess. 387-93, reprinted in 1984
U.S.C.C.A.N. 3182, 3527-33.


                                  16
last paragraph of § 5038(a), the court is required to release the

information sought if the request comes from one of the entities

described in paragraphs (a)(1) through (a)(6).

          Section 5038(a) lists in paragraphs (a)(1) through

(a)(6) the entities that have a right to access the records of

the judicial proceeding on request, and, as we have noted, it

specifies in its concluding paragraph a limited number of

situations where disclosure is forbidden.   It does not, however,

further define or limit the concepts of authorized and

unauthorized persons.   Most importantly, § 5038(a) implicitly

recognizes that there are situations other than those described

in paragraphs (a)(1) through (a)(6) and its concluding paragraph

in which access could be authorized.   If Congress intended

paragraphs (a)(1) through (a)(6) to constitute an exclusive list

of the situations in which access would be authorized, the

concluding paragraph would be superfluous; if access was to be

foreclosed in all but the situations described in

paragraphs(a)(1) through (a)(6), the prohibition against

disclosure in connection with applications for employment,

licenses, bonding and civil rights would not have been necessary.

          Section 5038(c), as we read it, has a different and

more specific target than § 5038(a) -- information and documents

"obtained or prepared" by an employee of the court or of another

government agencies in the line of duty.    The Act provides ample

evidence of Congress' recognition that the district court would

need information gathered by others in order to perform its

responsibilities successfully.   Section 5032, for example, lists


                                 17
a number of factors that the court must consider in determining

whether to transfer a juvenile for criminal prosecution as an

adult:   "the age and social background of the juvenile; the

nature of the alleged offense; the extent and nature of the

juvenile's prior delinquency record; the juvenile's present

intellectual development and psychological maturity; the nature

of past treatment efforts and the juvenile's response to such

efforts; the availability of programs designed to treat the

juvenile's behavioral problems."     Section 5032 goes on to

stipulate that "any proceedings against a juvenile . . . shall

not be commenced until the prior juvenile records of such

juvenile have been received by the court [or their unavailability

explained]."   Other provisions of the Act authorize the

commitment of the juvenile "for observation and study by the

appropriate agency," and require an examination of the juvenile's

"personal traits, his capabilities, his background, any previous

delinquency or criminal experience, and mental or physical

defect, and any other relevant factors."     § 5038(d).

           We read § 5038(c) as directed to the protection of the

fruits of the labors of the government employees who "obtain and

prepare" this information.   Some of this information will be

contained in documents maintained in locations other than the

Office of the Court Clerk, such as the files of the United States

Attorney and the United States Probation Office.     To this extent,

§ 5038(c) is broader than § 5038(a).     We do not suggest that

§5038(c) applies to bar the media from publishing anything they

legally obtain.   See Smith v. Daily Mail Publishing Co., 443 U.S.


                                18
97 (1979); Oklahoma Publishing Co. v. District Court, 430 U.S.

308 (1977).    It does, however, bar anyone associated with a

proceeding under the Act, including the United States Attorney

and the employees of any other law enforcement agency, from

disclosing such information to unauthorized persons.    Because we

read "others entitled under this section" to include persons

authorized by the court to receive records under the authority

implicitly recognized in § 5038(a), we believe § 5038(c)

preserves the district court's discretion to weigh the juvenile's

interest and the public's interest on a case-by-case basis.

          Finally, we turn to § 5038(e).    The government argues,

with some persuasive force, that the prohibition against making

public the picture of any juvenile is inconsistent with a

congressional intent to have public hearings in cases brought

under the Act.    Those attending a public hearing necessarily

would be exposed to the visual image of the juvenile involved

unless elaborate and cumbersome precautions were taken.

          A prohibition against making a juvenile's picture or

name available to the public, however, strikes us as an indirect

and unlikely way for Congress to stipulate that all hearings

under the Act will be closed to the public.    State statutes that

restrict access to juvenile proceedings generally do so directly

and clearly.    Pennsylvania's delinquency law, for example,

provides that "the general public shall be excluded," 42 P.S.




                                 19
§6336(d),0 and Delaware's provides that "[a]ll proceedings before

the court and all records of such proceedings may be private," 10

Del. Code § 972(a).0

          We think it far more likely that § 5038(e) was intended

not to limit the discretion of trial judges to regulate access to

juvenile delinquency proceedings, but to foreclose law

enforcement officials from holding press conferences at which the

name and picture of the juvenile would be "made public in

connection with a juvenile delinquency proceeding."0   Section

5038(e), then, like the rest of the Act, provides no evidence of

a congressional mandate to close all juvenile delinquency

hearings and seal all records.




0
  The official comment to the Pennsylvania statute adds that
"[t]he statute as drawn permits the court in its discretion to
admit news reporters."
0
  Delaware's statute allows the court to open proceedings "to the
extent that the Court may consider publication in the public
interest" and adds that "proceedings in a crime classified as a
felony shall be open to the public." 10 Del. Code Ann. § 972(a).
0
  After A.D. and T.Y. were arrested, for example, authorities held
a well-publicized press conference, see Michael A. Fuoco & Mike
Bucsko, It's a federal case, gangs here warned: 7 charged in
robberies facing U.S. law enforcement, Pittsburgh Post-Gazette,
March 26, 1993, at A1, and a news release was issued by the U.S.
Attorney, the FBI, the Allegheny County District Attorney, the
Pittsburgh Police Chief, and the Pennsylvania Chief Deputy
Attorney General.


                                 20
                                  V.

             The government urges us to construe §§ 5032 and 5038 in

light of the purpose and policy of the statutory scheme of which

they are parts.    The purpose of the Juvenile Delinquency Act, the

government stresses, "is to rehabilitate, not to punish."         In re

Sealed Case, 893 F.2d 363 (D.C. Cir. 1990).     To effectuate its

rehabilitative purposes, the Act requires inquiry into the most

sensitive aspects of a juvenile's life.      Public access, the

government maintains, would embarrass and humiliate juveniles,

make it difficult to obtain evidence about delicate matters, and

adversely affect the rehabilitation of juveniles by publicly

labelling them as criminals.    If §§ 5032 and 5038 were construed

in accordance with this purpose and policy, the government

asserts, public access to delinquency proceedings would be

barred.

             We, like the government, recognize the need to avoid

embarrassing and humiliating juveniles, to obtain evidence about

delicate matters, and not to affect the rehabilitation of

juveniles adversely.    We are not convinced, however, that

Congress found across-the-board closure of juvenile proceedings

necessary to achieve these goals.      Rather, we think Congress left

the delicate task of weighing the interests of the juvenile and

the public to the informed discretion of the district judge in

each case.    District judges are experienced at striking this kind

of delicate balance in the first instance in the context of




                                  21
common law and other First Amendment access cases.0   We are

confident that, here as there, they will be sensitive to the

interests of juveniles and faithful to the objectives of the Act,

as they determine the degree to which there will be public access

to proceedings under the Act and the records generated in those

proceedings.



                               VI.

          The Act does not mandate closed hearings and sealed

records in all situations.   Accordingly, we will reverse the

order of the district court denying the newspapers' motions to

0
 The Supreme Court has stated that the common law provides a
right of access to judicial records. See Nixon v. Warner
Communications, Inc., 435 U.S. 589, 597-99 (1978). There is also
a "common-law rule of open civil . . . proceedings." Gannett
Co., Inc. v. DePasquale, 443 U.S. 368, 384 (1979). We discussed
the "common law right of access" in United States v. Criden, 648
F.2d 814, 823 (3d Cir. 1981) ("Criden I"), and in Publicker
Indus., Inc. v. Cohen, 733 F.2d 1059, 1066 (3d Cir. 1984), we
noted that "[t]he existence of a common law right of access to
judicial proceedings and to inspect judicial records is beyond
dispute." See also Leucadia, Inc. v. Applied Extrusion
Technologies, Inc., 998 F.2d 157, 161-165 (3d Cir. 1993);
Republic of the Philippines v. Westinghouse Elec. Corp., 949 F.2d
653 (3d Cir. 1991); Littlejohn v. BIC Corp., 851 F.2d 673 (3d
Cir. 1988); Bank of America Nat'l Trust & Savings Ass'n v. Hotel
Rittenhouse Assocs., 800 F.2d 339 (3d Cir. 1986).

          The Supreme Court has noted in common law access cases
how difficult it is "to identify all the factors to be weighted
in determining whether access is appropriate" and has suggested
that "the decision as to access is one best left to the sound
discretion of the trial court, a discretion to be exercised in
light of the relevant facts and circumstances of the particular
case." Nixon, 435 U.S. at 599. We have remarked on the need "to
balance the strong public interest favoring access against
legitimate privacy concerns" and observed that "the trial court
is generally given considerable leeway in the delicate balancing
which must be performed." Criden I, 648 F.2d at 829.


                                22
open the proceedings and to unseal the record.    We instruct the

district court on remand to exercise its discretion concerning

whether, and the extent to which, there should be public access

to the records of these proceedings.0    Any denial or limitation

of access must be supported by factual findings related to the

circumstances of this particular case.




0
 As we have noted, the proceedings against A.D. and T.Y.
apparently have concluded. Accordingly, the district court need
not exercise its discretion with respect to attendance at court
hearings in those proceedings. Separate consideration will have
to be given in other cases to hearing access and to record file
access. There well may be situations in which a proper weighing
of the public's interest and the interests of the juvenile will
call for a denial of access to a hearing and nevertheless require
access at a later point to the transcript of that hearing.

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