                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-19-1997

United States v. Smith, et al.
Precedential or Non-Precedential:

Docket 97-5176




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iled August 19, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 97-5176

UNITED STATES OF AMERICA

v.

J. DAVID SMITH; STEVEN D'ANDREA;
JOSEPH LA PORTA

*GTECH, INTERVENOR IN D.C.

NEWARK MORNING LEDGER CO.; COX TEXAS
PUBLICATIONS, INC.; DALLAS MORNING NEWS, INC.,
INTERVENORS IN D.C.,
APPELLANTS

*Amended 5/15/97

On Appeal From the United States District Court
For the District of New Jersey
(D.C. Crim. No. 94-cr-00524)

Argued: June 6, 1997

Before: BECKER and SCIRICA, Circuit Judges, and
KELLY, District Judge.**

(Filed August 19, 1997)



_________________________________________________________________
**Honorable James McGirr Kelly, United States District Judge for the
Eastern District of Pennsylvania, sitting by designation.
DONALD A. ROBINSON, ESQUIRE
STEVEN L. LAPIDUS, ESQUIRE
 (ARGUED)
KEITH J. MILLER, ESQUIRE
Robinson, Lapidus & Livelli
Two Penn Plaza East, Suite 1100
Newark, NJ 07105-2237

Attorneys for Appellants Newark
Morning Ledger Co., Publisher of The
Star-Ledger, Cox Texas Publications,
Inc., Publisher of the Austin-
American Statesman, and the Dallas
Morning News, Inc., Publisher of The
Dallas Morning News

Of Counsel:

JONATHAN D. HART, ESQUIRE
MICHAEL KOVAKA, ESQUIRE
Dow, Lohnes, & Albertson, PLLA
1200 New Hampshire Avenue, NW
Suite 800
Washington, DC 20036-6082

For Cox Texas Publications, Inc.,
Publisher of the Austin-American
Statesman

PAUL C. WATLER, ESQUIRE
RACHEL E. BOEHM, ESQUIRE
Jenkens & Gilchrist
A Professional Corporation
Fountain Place
1445 Ross Avenue, Suite 3200
Dallas, TX 75202

For The Dallas Morning News, Inc.
Publisher of The Dallas Morning Star

                                  2
FAITH S. HOCHBERG, ESQUIRE
United States Attorney
KIMBERLY M. GUADAGNO,
 ESQUIRE (ARGUED)
KEVIN McNULTY, ESQUIRE
Assistant United States Attorney
970 Broad Street, Room 502
Newark, NJ 07102

Attorneys for Appellee United States
of America

DAVID POVICH, ESQUIRE
BARRY S. SIMON, ESQUIRE
 (ARGUED)
SEAN ESKOVITZ, ESQUIRE
Williams & Connolly
725 12th Street, NW
Washington, DC 20005

Attorneys for Appellee GTECH
Corporation
Intervenor in D.C.

JOHN J. GIBBONS, ESQUIRE
 (ARGUED)
LAWRENCE S. LUSTBERG,
 ESQUIRE
MARK A. BERMAN, ESQUIRE
Crummy, Del Deo, Dolan, Griffinger
 & Vecchione
A Professional Corporation
One Riverfront Plaza
Newark, NJ 07102

Attorneys for Appellee J. David Smith

                               3
KEVIN H. MARINO, ESQUIRE
 (ARGUED)
RICHARD E. SHAPIRO, ESQUIRE
One Newark Center, Suite 1600
Newark, NJ 07102-5211

Attorneys for Appellee Steven
D'Andrea

CATHY FLEMING, ESQUIRE
Fleming, Roth & Fettweis
744 Broad Street
Suite 701
Newark, NJ 07102

J. A. CANALES, ESQUIRE
Canales & Simonson
2601 Morgan Avenue
P.O. Box 5624
Corpus Christi, TX 78465-6524

Attorneys for Intervenor Ben Barnes

OPINION OF THE COURT

BECKER, Circuit Judge.

This appeal by the Newark Morning Ledger Co., Cox
Texas Publications, Inc., and the Dallas Morning News, Inc.
("newspapers"), who unsuccessfully sought access to
certain records and proceedings in the sentencing phase of
a criminal case in the district court, requires us to resolve
certain tensions between the media's First Amendment
right of access to judicial proceedings and the rule of
confidentiality of grand jury material, see Fed. R. Crim. P.
6(e). The focus of the newspapers' attention is the putative
misconduct of the government in publicly disclosing its
sentencing memorandum which contained allegations of
criminal conduct against several individuals who have not
been charged with any crimes ("uncharged individuals").
The memorandum was addressed to the sentencing of J.
David Smith and Steven D'Andrea, who had been convicted

                                4
of various charges in connection with a state lottery
kickback scheme (which made the matter one of great
public interest). At the same time that it submitted the
memorandum to the court, the government posted it on its
Internet website and made copies available to members of
the press, the public, and state lottery regulators.

Smith and D'Andrea, Smith's employer GTECH
Corporation (a company that provides computer and other
services to state lottery authorities), and the uncharged
individuals mentioned in the sentencing memorandum
complained to the district court, contending that the
memorandum contained grand jury material, and asserting
that the government had violated Rule 6(e) by disclosing it
to the public. The district court sealed the sentencing
memorandum on the ground that 6(e) material was
implicated, and, for the same reason, ordered the parties to
file under seal briefs concerning the extent to which the
sentencing memorandum was sourced in secret grand jury
material.

The newspapers filed a motion to intervene (which was
granted) and for access to the papers and proceedings. At
a hearing on the motion, they contended that they had a
First Amendment and a common law right of access
thereto. The parties opposing access (Smith, D'Andrea,
GTECH, and those whose names are mentioned in the
sentencing memorandum) objected that access would result
in the disclosure of putative grand jury material in violation
of Rule 6(e). The district court agreed, and entered an order
denying the newspapers' request for access to the
sentencing memorandum, the briefs, and the hearing it had
scheduled on the question whether the government had
violated Rule 6(e). The district court also made clear that,
after it made its determination, all aspects of the
proceedings (including the briefs and the transcript of the
hearing) would be opened up (except to the extent
prohibited by Rule 6(e)). The newspapers filed a timely
appeal, and we stayed the hearing before the district court
pending our resolution of the matter.

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

                               5
respect to the briefs and hearing, even though the
proceedings at issue before the district court concern
alleged government misconduct and hence public access to
them would serve important functions, there is no
presumptive First Amendment or common law right of
access to them if secret grand jury material would be
disclosed by that access. Indeed, as the government has
represented, the district court will necessarily have before it
previously undisclosed grand jury material. Moreover, Rules
6(e)(5) and 6(e)(6) require a court to seal any papers or
hearings "affecting" or "relating to" grand jury proceedings,
which includes any proceedings that would disclose secret
grand jury material. We conclude that grand jury secrets
might be disclosed by the briefs and hearing to which the
newspapers seek access, and conclude that the district
court acted properly in ensuring that such material
remains confidential while it makes its determination
whether that material is in fact secret grand jury material.
Under such circumstances, in camera review of the
disputed material is necessary.

Rejecting the newspapers' alternative request, we will not
require the district court to redact the briefs or to open up
the nonsecret aspects of the hearing, for that would be
highly impractical and inefficient and would create a
circus-like "revolving door" hearing. Moreover, although
there is (and can be) no prior restraint on the use by the
newspapers of material already in their possession, we
conclude that the potential grand jury material contained in
the sentencing memorandum is entitled to the protection
afforded to it by the district court despite the fact that it
has already been publicly disclosed. We will therefore affirm
the order of the district court sealing the briefs and the
hearing and remand so that the district court can hold its
scheduled in camera hearing. If and when the district court
determines that aspects of those briefs and hearings are
nonsecret, it shall, as it has already promised, disclose
those aspects to the public.

I. Facts and Procedural History

On October 4, 1996, Smith and D'Andrea were convicted
in the District Court of twenty felony counts arising out of

                                  6
a state lottery kickback scheme following a jury trial. Smith
had been National Sales Manager of GTECH Corporation. In
that capacity, he had received illegal payments from
Benchmark Enterprises, Inc., a consulting firm owned and
operated by D'Andrea that was retained by GTECH.1

On January 15, 1997, before the parties had filed their
post-trial motions and before the Probation Office had
prepared the presentence investigation reports for either
Smith or D'Andrea, the government submitted its
sentencing memorandum to the district court.2
Simultaneously, the government placed the memo on its
Internet website and made copies available to the public,
the media, and to state lottery regulators. To support the
government's position that Smith and D'Andrea should
receive substantial sentences, the section of the
memorandum concerning relevant conduct included
descriptions of criminal conduct involving several
uncharged individuals. The dissemination of the
memorandum was immediately followed by a series of
newspaper articles reporting the substance of the
memorandum, and in particular, the allegations against the
uncharged individuals.

On January 16, 1997, the day after the sentencing
memorandum was publicly disclosed, counsel for GTECH
and the uncharged individuals named in the sentencing
memorandum made an oral request before the district
court to be heard about the disclosure. The court held a
hearing the next day. GTECH and the uncharged
individuals contended that the sentencing memorandum
_________________________________________________________________

1. A third defendant, Joseph La Porta, was co-owner and operator of
Benchmark. He was acquitted of the charges stemming from the
kickback scheme.

2. It is not altogether clear whether the sentencing memorandum was
actually filed with the district court like any other brief or whether it was
simply forwarded directly to Judge Politan's chambers. The reason for
the premature submission of the government's sentencing memorandum
is also unclear. It appears that post-trial motions were delayed because
Smith sought new counsel. As a result, the sentencing, originally
scheduled for January 8, was postponed. When the sentencing
memorandum was submitted to the court, the Probation Office had not
yet conducted its interviews of Smith or D'Andrea.

                               7
contained grand jury material and that, as such, the
government had violated Fed. R. Crim. P. 6(e) by disclosing
it to members of the public. These third parties were joined
by Smith and D'Andrea in also claiming that thefiling of
the sentencing memorandum violated various aspects of
Fed. R. Crim. P. 32, which governs the preparation of
presentence investigation reports.3 The government
contended in opposition that its disclosure of the
sentencing memorandum was proper in all respects.

At the conclusion of the hearing, "to preserve the status
quo" pending full briefing on the issues before it, the
district court ordered the sentencing memorandum
removed from the clerk's office and placed under seal. The
court also directed the government to remove the memo
from its website, to make all reasonable efforts to retrieve
copies of the document that had been disseminated, and to
refrain from further dissemination of the memo. The court
ordered the parties to file any further papers under seal,
but expressly reserved decision on whether it would close
any future hearing. It informed the parties that it would
determine, based on the parties' papers, "whether there is
sufficient implication of Rule 6(e) . . . to warrant closure."

On January 31, 1997, GTECH and the uncharged
individuals filed under seal briefs alleging that the
government's disclosure of the sentencing memorandum
violated Fed. R. Crim. P. 6(e) and 32. The government filed
its opposition brief under seal on February 14, and the
movants filed their sealed reply papers on February 24.

On February 14, 1997, the newspapers moved to
intervene and for access to the sentencing memorandum,
_________________________________________________________________

3. The parties argued, in addition, that the disclosure of the sentencing
memorandum prior to the Probation Office's submission of the
presentence report violated a standing order of the district court
governing the sentencing process. This standing order contemplates that
the probation officer will submit the final presentence investigation
report to the court and the parties "not less than 7 business days prior
to the date of the sentencing hearing." The government is to submit the
sentencing memorandum "not less than 5 business days prior to the
date of the sentencing hearing." In re Guideline Sentencing, Standing
Order (Sept. 1, 1994).

                               8
the briefs filed under seal, and any hearing, contending
that they had First Amendment and common law rights of
access to all of them.4 GTECH and the other parties
opposed the newspapers' request for access to the papers
and proceedings. At a hearing on the newspapers' motion
on March 24, the district court granted the newspapers'
motion to intervene, but denied their request for access to
the sentencing memorandum, the briefs, and to the hearing
(which it scheduled for April 28). The court informed the
newspapers that "the very reason [the briefs are] sealed is
there may be materials in there which affect Rule 6(e)."
Moreover, the court stated:

I'm in the process of considering the briefs at the
present time. I think it would be fundamentally unfair
and a disservice to the system of justice and to this
Court for me to precipitously let them go without
having heard the arguments of the parties in a free and
unfettered context so that I can decide matters of
sensitivity under Rule 6.

The court noted that "at the conclusion of [the Rule 6(e)]
hearing or shortly thereafter" it would disclose all of the
materials that it determined did not contain grand jury
secrets. The court filed an order to this effect on April 1.

On April 3, 1997, the newspapers filed a notice of appeal
from the district court's orders of January 17 and April 1
which had sealed the sentencing memorandum, the briefs,
and the April 28 hearing. On April 24, 1997, we stayed the
April 28 hearing. We have appellate jurisdiction under 28
U.S.C. § 1291 to review final decisions of the district court.5
Orders either granting or, as in this case, denying access to
court proceedings or records are appealable as final orders
_________________________________________________________________

4. At the district court level, the government did not oppose the
newspapers' request for access to the papers and hearing, contending
that it had done nothing improper by publicly disclosing the sentencing
memorandum. On appeal, however, the government submits that the
papers and hearing must remain sealed temporarily so that the district
court can determine in a deliberative fashion whether the disclosure of
the sentencing memorandum was improper.

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

                               9
under § 1291. See, e.g., United States v. Antar, 38 F.3d
1348, 1355 (3d Cir. 1994); United States v. Raffoul, 826
F.2d 218, 222 (3d Cir. 1987).6 We lack jurisdiction,
however, over the part of the newspapers' appeal that
concerns access to the sentencing memorandum because it
is moot. The newspapers already possess the sentencing
memorandum, and the district court's orders do not bar
them from publishing it. Under these circumstances, no
meaningful relief can be granted to the newspapers with
respect to the sentencing memorandum, and there is no
live controversy between the parties.7

Thus, we consider (only) whether the district court has
properly sealed the briefs and the hearing. To the extent
that those briefs and the hearing concern the disclosure of
the sentencing memorandum, our resolution of whether
there is a public right of access to them will necessarily
impact on the question whether the district court also
properly sealed the sentencing memorandum.

We exercise plenary review over whether the First
Amendment or the common law creates a presumptive right
of access to judicial documents or proceedings. Antar, 38
F.3d at 1356-57. Although we generally review the factual
findings of the district court for clear error, in the First
Amendment context, we exercise independent appellate
review of the record. See Swineford v. Snyder County, 15
F.3d 1258, 1265 (3d Cir. 1994); United States v. Simone, 14
F.3d 833, 836 (3d Cir. 1994). Thus, when we deal with a
First Amendment right of access claim, our scope of review
_________________________________________________________________

6. GTECH contends that the newspapers' appeal is not timely because
their notice of appeal was filed more than sixty days after the district
court's January 17 order sealing the sentencing memo, the briefs, and
any future hearings. We disagree. First, the district court did not order
the hearing closed until its April 1 order. Second, and more importantly,
the newspapers were not parties to this action until April 1 when the
district court granted their motion to intervene. This issue was not ripe
for appeal until that same day, when the district court rejected the
newspapers' challenge to the January 17 order.

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

                               10
of factual findings "is substantially broader than that for
abuse of discretion." Antar, 38 F.3d at 1357. With respect
to the newspapers' common law right of access to judicial
proceedings and papers, we review the district court's order
for abuse of discretion. In re Capital Cities/ABC, Inc.'s
Application for Access to Sealed Transcripts, 913 F.2d 89,
92 (3d Cir. 1990).

II. First Amendment Right of Access to
Proceedings and Records

The First Amendment right of access to criminal
proceedings is firmly established. In Richmond Newspapers,
Inc. v. Virginia, 448 U.S. 555 (1980), the Supreme Court
held that the First Amendment provides a public right of
access to criminal trials. Tracing the history of open
criminal trials from the days before the Norman Conquest,
the Court found that criminal trials are covered by a
"presumption of openness," and, as such, may be closed
only if justified by an "overriding interest articulated in
findings." Id. at 573, 581. The Court has since extended
that holding to other aspects of a criminal case, see, e.g.,
Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984)
("Press-Enterprise I") (voir dire); Press-Enterprise Co v.
Superior Court, 478 U.S. 1 (1986) ("Press-Enterprise II")
(preliminary hearing), and we have done the same, affording
a public right of access to additional aspects of criminal
proceedings, see, e.g., Simone, 14 F.3d at 840 (post-trial
hearings to investigate juror misconduct), and to the
records and briefs that are associated with those
proceedings, see, e.g., Antar, 38 F.3d at 1359-60 (voir dire
transcript); United States v. Smith, 787 F.2d 111, 116 (3d
Cir. 1986) ("Smith II") (transcript of sidebar conference
during criminal trial).

The Supreme Court has established a two-part inquiry
for determining whether a particular proceeding is one to
which the First Amendment right of access attaches. This
test requires a court to consider both "experience" and
"logic." Press Enterprise II, 478 U.S. at 8. The "experience"
prong requires us to consider "whether the place and
process have historically been open to the press and the
general public." Id. The "logic" inquiry asks us to determine

                               11
whether "public access plays a significant positive role in
the functioning of the particular process in question." Id.
We have identified six relevant societal interests that a
court may consider in evaluating whether, for purposes of
the "logic" prong, public access to the proceeding and
records in question enhances their function:

promotion of informed discussion of governmental
affairs by providing the public with the more complete
understanding of the judicial system; promotion of the
public perception of fairness which can be achieved
only by permitting full public view of the proceedings;
providing a significant community therapeutic value as
an outlet for community concern, hostility, and
emotion; serving as a check on corrupt practices by
exposing the judicial process to public scrutiny;
enhancement of the performance of all involved; and
discouragement of perjury.

Smith II, 787 F.2d at 114 (summarizing United States v.
Criden, 675 F.2d 550, 556 (3d Cir. 1982) (Criden II)).

Once established under the "experience" and "logic" test,
a First Amendment right of access is not an absolute right,
but rather is a presumptive right. Although rare, closure of
a criminal proceeding or records to which there is a
presumptive right of access is permitted "for cause shown
that outweighs the value of openness." Press-Enterprise I,
464 U.S. at 509. We have held that, for a district court to
seal a criminal proceeding or records, "particularized
findings must be made on the record in each case, (1)
establishing the existence of a compelling governmental
interest, and (2) demonstrating that absent limited
restrictions upon the right of access, that other interest
would be substantially impaired." Antar, 38 F.3d at 1359.

Based on this case law, the newspapers contend that
there is a presumptive First Amendment right of access to
the sealed briefs and the upcoming hearing. They point first
to our language in Simone, in which we noted that "[o]n a
broad level, we see no reason to suspect that post-trial
proceedings as a general category are any different with
respect to the First Amendment right of access than the
other components of a criminal trial." Simone, 14 F.3d at

                               12
839. Turning to the Press-Enterprise II test, the newspapers
submit that the Criden II factors weigh in favor of access to
the papers and proceedings at issue.8 According to the
newspapers, the ultimate issue before the district court is
whether the government's disclosure of the sentencing
memorandum was proper. Therefore, they submit, the
papers and the hearing ultimately concern allegations of
government misconduct. Viewing the proceedings and
related briefing through this lens, the newspapers claim
that access to those proceedings and papers will promote
the public's perception of fairness; foster an informed
public discussion about the operations of the United States
Attorney's office; and provide public insight into how the
judiciary resolves serious allegations of government
misconduct.

The newspapers also point out that the district court did
not make any particularized findings that closure of the
briefs and hearing was necessary to further some
compelling interest, as is required under Antar once a court
determines that a presumptive right of access exists.
Alternatively, they contend that, even if the district court
had made particularized findings, there is no compelling
interest that would justify the closure of the briefs and the
hearing.

In response, GTECH and the other parties opposing
access (Smith, D'Andrea, and the government) contend that
there is no presumptive right of access to the briefs or the
hearing.9 They submit that the real issue before the district
court is whether the government improperly disclosed
grand jury material in violation of Fed. R. Crim P. 6(e).
Relying on Douglas Oil Co. v. Petrol Stops Northwest, 441
U.S. 211 (1979), and subsections (e)(5) and (e)(6) of Rule 6,
they point out that grand jury matters, and papers and
proceedings that would disclose grand jury matters have
historically been closed to the press and the public. They
represent that the briefs and the hearings would reveal not
only secret grand jury material that was disclosed by the
_________________________________________________________________

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

9. The uncharged individuals named in the sentencing memorandum
have not filed briefs on appeal.

                                13
government in the sentencing memorandum, but also
previously undisclosed (secret) grand jury material that
they have brought (or will bring) to the court's attention so
that it can make a fully informed decision as to whether the
government violated Rule 6(e). The Assistant United States
Attorney in particular stated at oral argument: "[N]ot only
does [Judge Politan] have to [look at undisclosed grand jury
material] but the government's position is that he can't
make a decision without it."10

III. Do the Newspapers Have a Right of Access
to the Briefs and Hearing?

A. The Secrecy of the Grand Jury

The longstanding rules preserving grand jury secrecy are
well established. See Douglas Oil, 441 U.S. 211; In re Grand
Jury Matter (Catania), 682 F.2d 61, 63 (3d Cir. 1982). As
the Supreme Court explained in Douglas Oil, "[s]ince the
17th century, grand jury proceedings have been closed to
the public, and records of such proceedings have been kept
from the public eye." 441 U.S. at 218 n.9. The secrecy of
grand jury proceedings is a necessary incident to the proper
functioning of the grand jury system. The Court has:

noted several distinct interests served by safeguarding
the confidentiality of grand jury proceedings. First, if
preindictment proceedings were made public, many
prospective witnesses would be hesitant to come
forward voluntarily, knowing that those against whom
they testify would be aware of that testimony.
Moreover, witnesses who appeared before the grand
jury would be less likely to testify fully and frankly, as
they would be open to retribution as well as
inducements. There also would be the risk that those
about to be indicted would flee, or would try to
influence individual jurors to vote against indictment.
Finally, by preserving the secrecy of the proceedings,
we assure that persons who are accused but
_________________________________________________________________

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

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

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

Thus, Douglas Oil implicitly makes clear that grand jury
proceedings are not subject to a First Amendment right of
access under the test of "experience and logic." Historically,
such proceedings have been closed to the public. Moreover,
public access to grand jury proceedings would hinder,
rather than further, the efficient functioning of the
proceedings.

Not only are grand jury proceedings not subject to any
First Amendment right of access, but third parties can gain
access to grand jury matters only under limited
circumstances. Even after the grand jury has concluded its
proceedings, a private party petitioning for access to grand
jury materials must show that "the need for [access]
outweighs the public interest in secrecy, and . . . the
burden of demonstrating this balance rests upon the
private party seeking disclosure." Id. at 223.

Fed. R. Crim. P. 6(e) is intended to preserve the tradition
of grand jury secrecy, creating a general rule of
confidentiality for all "matters occurring before the grand
jury." Rule 6(e) applies to "anything which may reveal what
occurred before the grand jury." Catania, 682 F.2d at 63.
The core of this rule is an obligation on all persons who are
present at grand jury proceedings not to disclose any
matters disclosed at such proceedings.12 Any "knowing
_________________________________________________________________

11. In this regard, we note that it is not clear from the record whether
the grand jury proceedings that are potentially implicated are ongoing.
Because even completed grand jury proceedings and records are
presumptively secret, determining whether the grand jury here has
completed its investigation is not necessary to the questions before us.

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

Attorneys for the government, the witness under examination,
interpreters when needed and, for the purpose of taking the
evidence, a stenographer or operator of a recording device may be
present while the grand jury is in session, but no person other than
the jurors may be present while the grand jury is deliberating or
voting.

                               15
violation" of that obligation may be punished as contempt
of court. Fed. R. Crim. P. 6(e)(2).

Rule 6(e) provides only narrow exceptions to the general
rule of grand jury secrecy. For example, under Rule
6(e)(3)(A), grand jury secrets may be disclosed without a
court order to certain government personnel for purposes
limited to the federal criminal law enforcement. If such a
disclosure is made, "[a]n attorney for the government shall
promptly provide the district court, before which was
impaneled the grand jury whose material has been so
disclosed, with the names of the persons to whom such
disclosure was made, and shall certify that the attorney has
advised such persons of their obligation of secrecy under
this rule." Id. 6(e)(3)(B). Most important for purposes of this
case, any third parties seeking access to grand jury
materials must file a petition in the district court where the
grand jury convened. Id. 6(e)(3)(D). Under Douglas Oil, as
we noted above, such parties have the burden of showing
that their need for access outweighs the public interest in
the secrecy of the grand jury materials.

To preserve the secrecy of grand jury proceedings, the
district court must seal certain hearings and records,
although not grand jury proceedings themselves, when
access to those hearings and records would jeopardize
grand jury secrecy. Under Rule 6(e)(5), "[s]ubject to any
right to an open hearing in contempt proceedings, the court
shall order a hearing on matters affecting a grand jury
proceeding to be closed to the extent necessary to prevent
disclosure of matters occurring before a grand jury"
(emphasis added).13 Similarly, under Rule 6(e)(6), "[r]ecords,
orders and subpoenas relating to grand jury proceedings
shall be kept under seal to the extent and for such time as
_________________________________________________________________

13. To the extent that contempt proceedings may be held in open court,
the right to public access is a right held by the putative contemnor, not
by the public. The contemnor must request open proceedings. Moreover,
there is no requirement that the entire proceeding, including the
questions that the contemnor refused to answer, be made public. All
that must be accessible to the public, upon the contemnor's request, is
the "final stage" of contempt proceedings. Levine v. United States, 362
U.S. 610, 618 (1960).

                               16
is necessary to prevent disclosure of matters occurring
before a grand jury" (emphasis added).

It is clear to us that the briefs and the hearings here are
not themselves "matters occurring before the grand jury."
They may, nonetheless, be subject to Rule 6(e)(5) and 6(e)(6)
governing the closure of hearings "affecting" and papers
"relating to" grand jury proceedings. As the Second Circuit
has recently explained, "[t]he plain language of the Rule
shows that Congress intended for its confidentiality
provisions to cover matters beyond those actually occurring
before the grand jury." In re Grand Jury Subpoena (Doe No.
4 v. Doe No. 1), 103 F.3d 234, 237 (2d Cir. 1996). Rather
than according secrecy only to the grand jury proceedings
themselves, the rules provide a presumption of secrecy to
all proceedings that "affect" grand jury proceedings.
Concomitantly, not only are grand jury materials
themselves to be kept secret, but so are all materials that
"relate to" grand jury proceedings.

The newspapers urge a narrow reading of those
provisions, recognizing that, if the briefs and hearing are
subject to Rules 6(e)(5) and 6(e)(6), there is clearly no First
Amendment right of access to them. Not only would there
be no presumptive right of access to them, but if the
newspapers wanted access to the briefs and the hearing,
they would have the burden of showing that their need for
access outweighed the public interest in grand jury secrecy,
a burden the newspapers would be unlikely to carry. The
newspapers contend that proceedings regarding whether
the government improperly disclosed grand jury material do
not "affect" or "relate to" a grand jury proceeding, in the
common sense of those terms. According to the
newspapers, any grand jury proceedings can continue
"uninterrupted and unaffected" by the proceedings before
the district court. We disagree.

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

                               17
publicly disclose matters occurring before the grand jury.
See id. at 238 ("[A] proceeding is related to or affects a
grand jury investigation if it would reveal matters actually
or potentially occurring before the grand jury."); 1 Charles
Alan Wright, Federal Practice and Procedure § 106, at 250
(1982) ("The rule of secrecy applies . . . to anything that
might tend to reveal what happened in the grand jury
room."). In other words, since it is indisputable that a court
must seal Rule 6(e) material, then a court may also seal
proceedings or papers if grand jury material would be
disclosed during the proceedings.

The Advisory Committee notes to Rule 6 clearly support
this conclusion. That commentary states that Rule 6(e)(5)
"make[s] it clear that certain hearings which would reveal
matters which have previously occurred before a grand jury
or are likely to occur before a grand jury with respect to a
pending or ongoing investigation must be conducted in
camera in whole or in part in order to prevent public
disclosure of such secret information." Advisory Committee
Notes to Rule 6, 1983 Amendment. The Notes then go on to
provide several examples of such a hearing. For instance,
when a third party petitions a court for access to particular
grand jury materials under subdivision (e)(3)(D), a court
might be justified in sealing any related hearings "for it will
at least sometimes be necessary to consider and assess
some of the `matters occurring before the grand jury' in
order to decide the disclosure issue." Id. In other words, a
court should close a hearing to decide whether disclosure is
warranted if that hearing would necessarily disclose grand
jury matters.14

B. The Relationship Between the Rules Protecting
Grand Jury Secrecy and the Briefs and Hearing

We turn, therefore, to the critical question whether the
briefs and hearing to which the newspapers seek access are
_________________________________________________________________

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

                               18
subject to a First Amendment right of access. We
acknowledge at the outset the force of the newspapers'
contention that the proceedings before the district court in
essence concern post-trial allegations of government
misconduct in a criminal case. Moreover, we agree with the
newspapers that there is a significant public interest in
gaining access to proceedings that investigate allegations of
government misconduct. Nevertheless, even if the
proceedings at issue concern possible government
misconduct (so that the logic prong of the Press-Enterprise
II test, see supra p.11-13, is likely satisfied), there is no
presumptive First Amendment right of access if the hearing,
and related papers must be sealed under Rule 6(e)(5) and
6(e)(6) because they "affect" or "relate to" a grand jury
proceeding. In other words, if the district court seals a
proceeding or brief because it would disclose grand jury
matters, there is no First Amendment right of access to it
even if it also concerns possible improper actions by
government officials.

Thus, to determine whether the newspapers are correct
that there is a presumptive right of access to the hearing
and briefs, we must determine whether they will disclose
grand jury matters so that they "affect" or "relate to" grand
jury proceedings within the meaning of Rule 6(e)(5) and
6(e)(6). We conclude that they do. Although the ultimate
issue to be decided by the district court is whether
attorneys for the government committed any wrongdoing by
publicly releasing the sentencing memorandum, this
question cannot be resolved without the district court's
determining whether that sentencing memorandum
includes Rule 6(e) material. Thus, the focus of the
proceedings before the district court is on the question
whether the disputed material contained in the sentencing
memorandum is in fact grand jury material. In this
proceeding, grand jury matters may potentially be disclosed
in two respects.

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

                               19
previously undisclosed materials have been submitted to
the district court so that it can determine in an informed
manner whether the sentencing memorandum contained
Rule 6(e) material. At this juncture, since the government is
in the unique position of knowing what transpired before
the grand jury, we must accept the representation that
undisclosed grand jury secrets will come out during the
proceeding.

Second, the aspects of the sentencing memorandum itself
that GTECH, Smith, and D'Andrea contend are entitled to
secrecy under Rule 6(e) will necessarily be disclosed during
the proceedings, as the purpose of the proceedings is to
determine the status of that material under Rule 6(e). The
district court must ensure that any such material remains
secret, for, otherwise, potentially confidential material
would be publicly disseminated before the court can decide
whether those materials are actually secret. The risk that
the briefs and hearing will disclose grand jury matters is
significant enough that closure is warranted. Cf. Doe No. 4,
103 F.3d at 238 ("We believe that a hearing on Doe 4's
motion [asserting that it had been a victim of illegal
surveillance and demanding that the government disclose
any such surveillance] poses a significant risk of disclosing
information which has occurred or which may occur before
the grand jury. Because the government has not yet
confirmed or denied the investigation, we can only
speculate as to the precise nature of the risk.").

As the foregoing discussion demonstrates, the briefs and
hearing will necessarily reveal grand jury material. We
therefore conclude that the briefs and hearing to which the
newspapers seek access are afforded secrecy under Fed. R.
Crim. P. 6(e)(5) and 6(e)(6). Not only was the district court
justified in sealing them, it was required to do so absent a
showing of an overriding interest. As such, there is no
presumptive First Amendment right of access thereto. For
this reason, our inquiry ends here, and we do not reach the
question whether the district court made particularized
findings that the need for closure outweighed the interest in
public access, as is required under Antar, 38 F.3d at 1359,
when a presumptive First Amendment right of access is
established.

                               20
Several additional considerations support our conclusion
that there is no presumptive First Amendment right of
access to the briefs or to the hearing. GTECH and the other
parties opposing access point out, quite convincingly, that
examining material in camera is a common method used by
courts to make decisions without undermining the secret or
privileged nature of certain material. We have approved that
method in several contexts, including the grand jury.
Recently, in In re Grand Jury, 103 F.3d 1140 (3d Cir.
1997), for example, we held that the district court did not
err in conducting an ex parte, in camera hearing to
determine whether a challenged subpoena must be
complied within a case claiming parent-child privilege. We
stated that "[e]x parte in camera hearings have been held
proper in order to preserve the ongoing interest in grand
jury secrecy. The secrecy of the grand jury proceedings in
the present matter might have been compromised by
divulging the specific questions that the government
intended to ask during the daughter's testimony." Id. at
1145 (citations omitted).

Courts have also approved of examining material in
camera in order to preserve the potentially privileged or
secret nature of that information when faced with a dispute
about whether that material is in fact privileged or secret,
as in this case. For example, we have used that method to
determine whether certain documents are protected by the
attorney-client privilege or work product doctrine. See, e.g.,
Kelly v. Ford Motor Co., 107 F.3d 954 (3d Cir. 1997).
Similarly, the Supreme Court has endorsed the practice of
holding in camera proceedings for determining whether the
government can withhold documents from discovery based
on a claimed government privilege. See, e.g., Kerr v. United
States District Court of the Northern District of California,
426 U.S. 394 (1976).

In a related vein, it is clear that the district court
properly took steps to preserve the subject matter of the
dispute pending its determination whether that subject
matter should be secret. Faced with a bona fide claim that
6(e) material was disclosed in the sentencing memorandum,
the court prevented further disclosures of that material,
thereby preserving the "status quo," while the parties

                               21
briefed the question and the court brought them in for a
hearing. The district court would have been in an
untenable position if the newspapers had a right of access
to the proceedings. The very purpose of the proceedings is
to determine whether the sentencing memorandum
contained Rule 6(e) material. If the district court made that
determination in a public proceeding, it would further
disseminate the potential secrets in doing so. This would be
an unfortunate result indeed if the district court ultimately
determined that the memorandum in fact contained grand
jury secrets.15
_________________________________________________________________

15. Because we conclude that the district court did not err in sealing the
briefs and the hearing, we need not reach the question whether Fed. R.
Crim. P. 32, which governs the preparation of presentence investigation
reports (PSR), would have permitted the district court to do the same.
The district court, in sealing the briefs and hearing, relied almost
entirely on Rule 6(e). Although most of the arguments with respect to
Rule 32 made by the parties opposing access have to do with the
question whether the district court properly sealed the sentencing
memorandum, which we have held is moot, whether information
contained in a government sentencing memorandum is confidential is
still a live issue to the extent that the briefs and the hearing might reveal
some of that information.

The parties opposing access to the briefs and hearing make a number
of Rule 32 based arguments in support of the district court's decision to
seal the briefs and the hearing. First, they contend that the sentencing
memorandum (and by extension, the briefs and the hearing) disclosed (or
will disclose) certain sensitive information that Rule 32(b)(5) requires
probation officers to exclude from the PSRs. Second, they submit that
the sentencing memorandum (and again by extension, the briefs and
ultimately the hearing) disclosed (or will disclose) presentence
investigation material in violation of Rule 32(b)(6), which governs the
obligations of the parties during the presentence investigation process.

More generally, the parties opposing access point to case law that has
held that PSRs are not subject to any public right of access, unless the
party seeking access can demonstrate an interest in disclosure that
outweighs the interest in the confidentiality of the report. See United
States v. Corbitt, 879 F.2d 224, 228 (7th Cir. 1989); United States v.
Schlette, 842 F.2d 1574, 1579 (9th Cir. 1988); United States v. McKnight,
771 F.2d 388, 390 (8th Cir. 1985); United States v. Santarelli, 729 F.2d
1388, 1390 (11th Cir. 1984); United States v. Charmer Indus., 711 F.2d
1164, 1176 (2d Cir. 1983). Even though Rule 32 itself does not deal with

                               22
C. Must the District Court Redact the Briefs
and Hold a Two-Part Hearing?

The newspapers concede that they have no right of
access to grand jury material as such. They contend,
however, that the district court would only be justified in
sealing the briefs and the hearing in their entirety if the
court made particularized findings that the hearing and
briefs would concern only grand jury material. In other
words, the newspapers insist that they seek access only to
_________________________________________________________________

disclosure of the report to third parties, a number of courts have
reasoned that, in addition to the fact that PSRs have traditionally been
confidential and only made available to the defendant in recent decades,
"public disclosure . . . of the presentence report . . . would constitute a
positive hindrance" of the sentencing process and ongoing criminal
investigations. Corbitt, 879 F.2d at 229. We ourselves have observed that
"[t]here is a general presumption that the courts will not grant third
parties access to the presentence reports of other individuals." United
States v. Blanco, 884 F.2d 1577, 1578 (3d Cir. 1988).

Based on this case law, the parties opposing access contend that the
newspapers do not have a presumptive right of access to the sentencing
memorandum, or to the briefs or hearing, which might disclose the
information contained in the PSR. As they point out, sentencing
memoranda typically include the same classes of sensitive information as
are included in presentence reports, such as criminal history and
characteristics, and not infrequently, as in this case, allegations of
criminal conduct against uncharged individuals.

There is considerable force to this argument. There are, of course,
countervailing considerations. In the wake of the revolution in criminal
sentencing spawned by the Sentencing Reform Act, 18 U.S.C. § 3551 et
seq., and the U.S. Sentencing Guidelines, which have largely
transformed sentencing into an adversary proceeding during which the
sentencing judge makes record fact findings about the material
sentencing factors, it would seem that significant portions of the PSR
need (and should) no longer be confidential. But even if that were so, the
matters at issue here may well be outside the ambit of any such precept
(assuming it should be adopted). We leave this question to the district
court. If the court determines, upon resolving the 6(e) question, that all,
or aspects, of the briefs and the transcripts of the hearing should be
disclosed to the public, it should also consider whether Rule 32 or
related case law establishing the confidentiality of PSRs would prohibit
the disclosure of that material.

                               23
the nonsecret portions of the proceeding before the district
court. They make two related contentions. First, they point
out that the district court made no findings that secret
grand jury material would actually be considered during the
proceedings. Second, they point out that both Rule 6(e)(5)
and 6(e)(6) specifically provide that the hearing and
materials can be closed only "to the extent necessary to
prevent disclosure of matters occurring before a grand
jury." According to the newspapers, even if the district
court can justifiably seal part of the briefs and the hearing,
the court must exercise this authority narrowly, and only
seal the particular aspects of the briefs and the hearing
that warrant secrecy. Under these circumstances, the
newspapers contend, the district court erred in sealing the
briefs and the hearing in their entirety and should, instead,
have redacted the briefs and held a two-part hearing.

We disagree. The government has represented that
material it concedes to contain grand jury secrets will be
disclosed in order to aid the district court's deliberations.
That virtually concludes the issue. But we would have to
reject the newspapers' contention even without this
representation. The briefs and the hearing to which the
newspapers seek access concern the exact issue that the
newspapers want the district court to determine now:
whether 6(e) material is implicated. More specifically,
although the newspapers seek access only to the aspects of
the proceedings that the district court determines to be
nonsecret, the district court simply cannot determine what
material is secret and what can be disclosed to the public
without determining whether the sentencing memorandum
contains Rule 6(e) material. Yet that decision, in turn,
cannot be made without the benefit of the briefs and in
particular, without the benefit of oral argument.

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

                               24
The newspapers have expressed concern that a district
court would seal proceedings that should otherwise be open
based on a mere allegation that grand jury secrets have
been or will be disclosed. They submit that this is of
particular concern in a case such as this where the parties
claiming that a 6(e) violation has occurred were not present
during the grand jury investigation, and, therefore, have no
basis for knowing what exactly constitutes 6(e) material in
this particular case. We conclude, however, that GTECH
and the other parties have made at least a colorable
showing that 6(e) materials were implicated, and as noted
above, the U.S. Attorney was particularly forthcoming.
Moreover, the district court made adequate findings in this
regard. It stated that "the very reason [the briefs are] sealed
is there may be materials in there which affect Rule 6(e)."

Even if it were possible for the district court to identify
material that potentially implicates Rule 6(e) in advance and
to restrict access only to that particular material without
the benefit of oral argument, we would not require the
district court to do so. The newspapers would, in essence,
have the district court conduct a "revolving door" hearing to
which the media would be let in and then excluded from
time to time (or minute to minute) depending on whether
grand jury material (or putative grand jury material) was
under consideration. But courts cannot conduct their
business that way, and we will not tie the hands of the
district court in this fashion.

Under these circumstances, requiring access to some
aspects of the hearing will be cumbersome, impractical,
and inefficient. The same would be true of requiring the
district court to redact the briefs. The district court has
informed the parties that it will disclose all nonsecret
aspects of the sentencing memorandum, the briefs, and the
hearing as soon as it determines which aspects of those
papers and proceedings are secret. Under the
circumstances we have described, that access is enough to
satisfy any right of access that the newspapers may have to
the nonsecret aspects of the proceedings.

                               25
D. Is the Previously Disclosed Grand Jury Material
Here Entitled to Any Protection?

The newspapers also contend that there is a First
Amendment right of access to the briefs and the hearing in
this case because the First Amendment guarantees access
to grand jury or other confidential matters to the extent
that that information has already been publicly disclosed.
They hang their hat on the fact that the sentencing
memorandum has already been disclosed to the public, and
reason that what the parties opposing access seek to
protect is no longer secret. We reject this argument.

As we have already noted, the proceedings before the
district court will involve the consideration of previously
undisclosed grand jury material. Therefore, even if we were
to assume that any confidential material contained in the
sentencing memorandum is no longer entitled to protection,
the proceedings, if public, will, for the reasons we have
described, disclose additional confidential material. Since
we have held that the district court is not required to
conduct a revolving door hearing, in which it would seal
only those portions of the proceedings that might reveal
grand jury secrets, the district court did not err in sealing
the briefs and the hearing even if the information contained
in the sentencing memorandum is no longer entitled to
protection.

Moreover, we cannot agree with the newspapers'
contention that grand jury material or putative grand jury
material, once disclosed, even if inadvertently, is no longer
subject to the protections of Rule 6(e). At bottom, it is clear
to us that a court is simply not powerless, in the face of an
unlawful disclosure of grand jury secrets, to prevent all
further disclosures by the government of those same jury
secrets. In other words, even if grand jury secrets are
publicly disclosed, they may still be entitled to at least
some protection from disclosure.

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

                               26
were not entitled to the materials under Rule 6(e)(3)(A)(i),
which governs disclosure to other government lawyers. The
Supreme Court noted that the case was not moot, despite
government protestations to the contrary: " `The controversy
here is still a live one. . . . Each day this order remains
effective the veil of secrecy is lifted higher by disclosure to
additional personnel and by the continued access of those
to whom the materials have already been disclosed. We
cannot restore the secrecy that has already been lost but
we can grant partial relief by preventing further
disclosure.' " Id. at 423 n.6 (quoting In re Grand Jury
Investigation No. 78-184 (Sells, Inc.), 642 F.2d 1184, 1187-
88 (9th Cir. 1981)); see also In the Matter of Special March
1981 Grand Jury, 753 F.2d 575, 577 (7th Cir. 1985) ("If the
Court orders such disclosure erroneously, we suppose both
that an injured person can complain by filing . . . a petition
with the court that ordered disclosure and that the court
has inherent power to issue an appropriate curative order
. . . . We do not think Congress meant to leave the courts
powerless to correct such errors." (citations omitted));
United States v. Nix, 21 F.3d 347, 350 (9th Cir. 1994) ("We
faced a somewhat similar situation in [Sells Engineering].
. . . We acknowledged that secrecy could not be restored,
but held that the appeal was not moot because issues
relating to future disclosure needed to be addressed.").16
_________________________________________________________________

16. The cases relied on by the newspapers on this point are inapposite.
First, they cite us to In re Charlotte Observer, 882 F.2d 850 (4th Cir.
1989) ("Charlotte Observer I"), in which the Fourth Circuit reversed an
order of the district court sealing proceedings relating to a change of
venue motion in a well-publicized criminal case. The district court
concluded that closure was necessary in order to prevent "republication"
of the prejudicial pre-trial publicity. The Fourth Circuit disagreed, stating
"[w]here closure is wholly inefficacious to prevent a perceived harm, that
alone suffices to make it constitutionally impermissible." Id. at 855.
Unlike the case before us, however, Charlotte Observer I involved only
the republication of matters of public record. As such, the court found
there was a presumptive right of access to the proceedings, and the only
issue before it was whether the defendants' interest in closure was
sufficient.

Moreover, in In re Charlotte Observer, 921 F.2d 47 (4th Cir. 1990)
("Charlotte Observer II"), the same court reversed an order of the district

                               27
We acknowledge that the circumstances of this case are
different from those before the Supreme Court in Sells
Engineering because the potential grand jury secrets
disclosed here were disseminated to members of the public,
rather than to certain, identifiable government lawyers and
their staffs. The order entered by the district court in this
case cannot effectively bar further dissemination of any
potential grand jury secrets by members of the public who
possess the sentencing memorandum.17 Nevertheless, this
difference in the degree of disclosure does not change the
result in this case. Although the district court could not
prevent the newspapers from publishing the sentencing
memorandum once they came into possession of it, the
court properly prevented further government disclosures of
the putative grand jury secrets contained in the sentencing
memorandum to additional parties. Even if the
dissemination by members of the public continues, the
_________________________________________________________________

court enjoining two reporters from publishing confidential information
that was inadvertently revealed in open court. The court noted that "[o]n
the present record . . . `the cat is out of the bag.' The district court did
not close the hearing and the disclosure was made in the courtroom, a
particularly public forum. Once announced to the world, the information
lost its secret characteristic, an aspect that could not be restored by the
issuance of an injunction to two reporters." Id. at 50. Unlike Charlotte
Observer I, Charlotte Observer II did potentially implicate secret grand
jury material. The information that was inadvertently disclosed was the
name of a lawyer who was the target of an ongoing grand jury
investigation. Despite the court's language, however, its holding was
based in the law of prior restraint: the district court's order barred the
reporters from publishing information that they had obtained lawfully.
The order, therefore, clearly ran afoul of the line of Supreme Court prior
restraint cases, such as Oklahoma Publishing Co. v. District Court, 430
U.S. 308 (1977), and Nebraska Press Association v. Stuart, 427 U.S. 539
(1976). In the case before us, in contrast, the district court's order does
not bar the newspapers from publishing the sentencing memorandum in
their possession.

17. Nor could the court enter an order barring parties in possession of
the sentencing memorandum from passing the memorandum onto other
parties. Under prior restraint law, orders prohibiting the media from
publishing information already in its possession are strongly disfavored.
See, e.g., Oklahoma Publishing Co. v. District Court, 430 U.S. 308 (1977);
Nebraska Press Association v. Stuart, 427 U.S. 539 (1976).

                               28
order barring further disclosure of any secret grand jury
material will at least narrow that dissemination.

IV. Common Law Right of Access

The newspapers also contend that they have a
presumptive common law right of access to the briefs and
to the hearing. This court has often acknowledged the
existence of a common law right " `to inspect and copy
public records and documents, including judicial records
and documents.' " United States v. Criden, 648 F.2d 814,
819 (3d Cir. 1981) (quoting Nixon v. Warner
Communications, Inc., 435 U.S. 589, 597 (1978)). Although
the right of access traditionally attached only to judicial
records, we have suggested that the common law right of
access also applies to judicial proceedings. See Bank of
America Nat'l Trust & Savings Ass'n v. Hotel Rittenhouse
Assocs., 800 F.2d 339, 343 (3d Cir. 1986). As we have
explained, the common law right of access serves a number
of important functions:

The public's exercise of its common law access right in
civil cases promotes public confidence in the judicial
system . . . . As with other branches of government, the
bright light cast upon the judicial process by public
observation diminishes the possibilities for injustice,
incompetence, perjury, and fraud. Furthermore, the
very openness of the process should provide the public
with a more complete understanding of the judicial
system and a better perception of its fairness.

Leucadia v. Applied Extrusion Tech., 998 F.2d 157, 161
(3d Cir. 1993) (quoting Republic of the Philippines v.
Westinghouse Elec. Corp., 949 F.2d 653, 660 (3d Cir.
1991)).

For the reasons we have already explained, there is no
common law right of access to grand jury materials. Unlike
judicial records to which a presumption of access attaches
when filed with a court, grand jury materials have
historically been inaccessible to the press and the general
public, and are therefore not judicial records in the same
sense. See, e.g., Westinghouse, 949 F.2d at 660-62 (papers
filed in connection with a motion for summary judgment);

                                 29
Littlejohn v. BIC Corp., 851 F.2d 673, 678-80 (3d Cir. 1988)
(trial transcripts and exhibits admitted at trial); Bank of
America, 800 F.2d at 343-46 (settlement documents).
Therefore, the newspapers have not established a common
law right of access to the briefs or the hearing.

V. Conclusion

For the foregoing reasons, the order of the district court
denying the newspapers' motion for access to the
sentencing memorandum, the briefs filed under seal, and
the hearing initially scheduled for April 28 (which may now
go forward) will be affirmed.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

                               30
