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U.S. v. Simone

filed: January 7, 1994.


On Appeal From the United States District Court for the Eastern District of Pennsylvania. D.C. Criminal Action Nos. 91-00569-01 and 02

Before: Roth, Lewis and Garth, Circuit Judges

Author: Roth


ROTH, Circuit Judge :

This case stems from the trial of Robert F. Simone, who on December 15, 1992, was convicted on five counts of racketeering and extortion. The trial attracted substantial media attention, and following its Conclusion one of the jurors claimed that other members of the jury had watched television reports about the case, read newspaper accounts of the trial, and discussed the case with their spouses, despite the court's instruction that they refrain from doing so. These allegations also received substantial media attention. On January 19, 1993, Simone moved the district court to examine the jurors in camera to investigate this alleged misbehavior. The court granted this motion on March 19.

Later on March 19, appellant Philadelphia Newspapers, Inc., filed a motion requesting access to the examination of the jury. On March 21, appellants Central States Publishing, Inc., and Legal Communications, Ltd., also filed motions for intervention and access to the hearing. The district court denied these motions on March 22, the date of the hearing. Appellants (referred to herein as "the Newspapers") requested that the proceeding be stayed to enable them to take an expedited appeal to this court. The district court denied the request and proceeded immediately to question the jurors. The Newspapers then filed a Notice of Appeal and an Emergency Motion for Stay and Petition for Writ of Mandamus with this court, as well as a Motion for Expedited Consideration and Summary Reversal. We issued the stay that afternoon. However, upon being notified of the stay, the district court concluded that it had no further need to question the jurors. On April 1, 1993, it entered an order denying Simone's motions for judgment of acquittal, new trial and arrest of judgment. The district court simultaneously released a transcript of the proceedings from which the jurors' names had been removed.

We hold that the First Amendment right of access applies to proceedings of this nature. Because we conclude that the district court's findings were inadequate to support closure of the questioning of the jurors and that the release of the transcript of closed proceedings cannot cure restrictions on the right of access absent adequate findings, we will reverse the decision closing the examination of the jury to the press and public.


Simone was tried in the Eastern District of Pennsylvania on RICO, Hobbs Act, and extortionate credit charges based on his attempts to extort money from two prominent Philadelphia-area businesspersons. The trial attracted the interest of the media primarily because Simone, a criminal defense attorney, had in the past represented clients alleged to have had connections to the Philadelphia mob. His defense consisted in large part of allegations that the government was prosecuting him in retaliation for his successful representation of these individuals.

Following substantial post-trial publicity concerning claims of juror misbehavior, Simone made his motion for in camera examination of the jury. He alleged that the jurors failed to follow the court's instructions not to read newspaper accounts or watch television news about the trial; that jurors falsely told the Judge that they were adhering to his instructions; that the jurors improperly reviewed their trial notes together in violation of the court's instructions; that some jurors had preconceived notions of Simone's guilt; and that the jury felt coerced to reach a verdict. The court granted Simone's motion for examination of the jury. Its order remains under seal.

On March 18, 1993, appellant Philadelphia Newspapers, Inc., learned that the court planned to conduct a closed hearing concerning the Simone case on March 22. On March 19, it filed its motion requesting access; its motion was followed two days later by similar motions made by appellants Central States Publishing, Inc., and Legal Communications, Ltd.

On the morning of its examination of the jurors, the district court opened the courtroom for a hearing on access. This hearing lasted thirteen minutes. At that time, the court advised counsel that it was going to question the jurors about whether they had been exposed to extraneous materials. It indicated that it had placed its order granting Simone's motion under seal because of its belief that "exposure of the order to the press would subject jurors to coercive influences from the press." The court further indicated that some jurors had reported that the press had contacted them concerning their proposed testimony.

The district court denied the Newspapers' motions, concluding that the hearing should be closed because "the presence of the press in the proceedings will be coercive and will interfere with the expressions of candor of the jurors." The district court noted that "to the extent that there is an interest at this point in the proceedings, it is the Government's interest and the defense interest. The public has no outcome interest." The court went on to conclude that, to the extent there was a public interest, it was "far outweighed by the need of the Court and the interest of Justice to conduct a hearing in the least coercive atmosphere[, which] requires exclusion of the press." It did not elaborate on precisely why it felt that the presence of the press would be so coercive.

The court offered two additional justifications for its decision. First, it likened this situation to one in which it becomes necessary to voir dire the jury before the completion of trial. Second, it was concerned that jurors might "inadvertently speak of" the deliberative process, and reasoned that it was appropriate to close the hearing to protect against disclosure of the deliberative process to the public. The court did indicate that it would release a transcript of the hearings "at an appropriate time, probably within days after the Conclusion of the proceedings."


The district court had jurisdiction over the criminal prosecution under 18 U.S.C. § 3231. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291 to review the final order of the district court denying appellants access to the post-trial proceedings. Though it would appear that this case is moot, we find that it falls squarely within that category of cases that are "capable of repetition, yet evading review." See, e.g., Press-Enterprise Co. v. Superior Court of Cal., 478 U.S. 1, 6, 92 L. Ed. 2d 1, 106 S. Ct. 2735 (1986) [hereinafter Press-Enterprise II ]; United States v. Raffoul, 826 F.2d 218, 222 (3d Cir. 1987). In Raffoul this court considered what procedural requirements are necessary to protect the First Amendment right of access when a closure motion is made during the course of a criminal trial. This court noted that "certainly the press and public will continue to seek access to criminal trials, and within the very short time that closure orders are generally in effect, it is not likely that appellate review would ever be available." Raffoul, 826 F.2d at 222. It is likewise reasonable to assume that the Newspapers will be subjected to this sort of closure order in the future and that, as in this case, appellate review would never be available were review foreclosed by the Conclusion of the proceedings prior to the issuance of a stay. Accordingly, we will consider the merits of the appeal.

This court has plenary review of whether the district court applied the proper legal principles. Raffoul, 826 F.2d at 222; United States v. Smith, 787 F.2d 111, 113 (3d Cir. 1986). With respect to the adequacy of the district court's findings in support of closure and whether the release of the hearing transcript was sufficient to satisfy the First Amendment right of access, this court's scope of review is substantially broader than that for abuse of discretion. "This broader review includes independent consideration of the district court's order and the factual findings inferred from the evidence before it." In re Capital Cities/ABC, Inc., 913 F.2d 89, 92 (3d Cir. 1990). See also Smith, 787 F.2d at 113 n.1 ("In the First Amendment context, reviewing courts have a special obligation that in certain circumstances may require independent review of even factual findings.").


The Supreme Court has developed a two-part test, known as the test of "experience and logic", for determining whether a particular proceeding is one to which the First Amendment right of access attaches. The "experience" prong of the test concerns "whether the place and process have historically been open to the press and general public." Press-Enterprise II, 478 U.S. at 8, 106 S. Ct. at 2740. The "logic" inquiry concerns "whether public access plays a significant positive role in the functioning of the particular process in question." Id.

In the line of cases in which it developed this test, the Court has found that the First Amendment right of access attaches to a variety of criminal proceedings, including trials, Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 565, 100 S. Ct. 2814, 2821, 65 L. Ed. 2d 973 (1980), the voir dire examination of potential jurors, Press-Enterprise Co. v. Superior Court of Cal., 464 U.S. 501, 104 S. Ct. 819, 78 L. Ed. 2d 629 (1984) [hereinafter Press-Enterprise I ], and preliminary hearings growing out of criminal prosecutions. Press-Enterprise II, 478 U.S. 1, 106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986). The Court has also held that a statute requiring the exclusion of the press and public from the courtroom during the testimony of minor victims of sexual offenses violates the First Amendment right of access. Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S. Ct. 2613, 73 L. Ed. 2d 248 (1982).

A. History

In those cases in which the Supreme Court has considered the First Amendment right of access, it has relied in part on long historical traditions of openness. In Richmond Newspapers it looked back to "the days before the Norman Conquest." 448 U.S. at 565, 100 S. Ct. at 2821. Based on "this unbroken, uncontradicted history, supported by reasons as valid today as in centuries past, we are bound to conclude that a presumption of openness inheres in the very nature of a criminal trial under our system of Justice." Id. at 573, 100 S. Ct. at 2825. Similarly, in Press-Enterprise I the Court traced the public selection of jurors back to the 16th century. 464 U.S. at 507, 104 S. Ct. at 822. And in Press-Enterprise II it found a tradition of accessibility to preliminary hearings stretching back at least to the trial of Aaron Burr for treason. 478 U.S. at 10, 106 S. Ct. at 2741.

No such rich historical tradition exists with respect to post-trial examinations of jury misconduct. The Newspapers assert that, "to the extent that a post-trial hearing concerning juror misconduct is a 'traditional' proceeding at all, the cases addressing public access to such a proceeding have come down in favor of access." Appellants' Brief at 28. They are unable, however, to support this assertion with anything more than three cases from the Florida state courts, none of which date before 1980. The Newspapers also point to Justice Cardozo's statement in Clark v. United States, 289 U.S. 1, 77 L. Ed. 993, 53 S. Ct. 465 (1933), that a juror "will not expect to be shielded against the disclosure of evidence reflecting upon his honor." Id. at 16. That case, however, concerned whether such evidence is admissible against a juror when she is charged with misconduct. Nothing in the opinion suggests that the disclosure of evidence of a juror's conduct must or can be to anyone other than the trier-of-fact.

The United States argues that the broad discretion given to district Judges effectively refutes any claim that these hearings have traditionally been held in public. As this court has recently noted, it is well-established that "the trial Judge has discretion, both in cases involving intra- and extra-jury misconduct, to decide how to deal with a situation in which there is an allegation of jury misconduct." United States v. Resko, 3 F.3d 684, 690 (3d Cir. 1993). This includes the determination whether to hold a post-trial hearing. United States v. Gilsenan, 949 F.2d 90, 96-97 (3d Cir. 1991), cert. denied, 119 L. Ed. 2d 590, 112 S. Ct. 2971 (1992). The Second Circuit has even indicated that district Judges have the discretion to decide whether the hearing should be held in camera. United States v. Ianniello, 866 F.2d 540, 544 (2d Cir. 1989).*fn1 We do not, however, find dispositive the fact that trial Judges traditionally have had discretion in such matters. The existence of broad discretion to deal with allegations of jury misconduct does not mean that there cannot be areas within the realm of jury misconduct issues to which that discretion does not extend. For example, the scope of a Judge's inquiry is limited by Federal Rule of Evidence 606(b), which precludes consideration of the jury's deliberative process. Thus the mere existence of discretion does not, without more, mean that that discretion is not subject to the First Amendment right of access.

The United States further contends that the majority of post-trial inquiries into jury misconduct have in fact been conducted in camera, citing United States v. Marrero, 904 F.2d 251, 261-62 (5th Cir.), cert. denied, 498 U.S. 1000, 112 L. Ed. 2d 567, 111 S. Ct. 561 (1990); Bolton v. Tesoro Petroleum Corp., 871 F.2d 1266, 1275 (5th Cir.), cert. denied, 493 U.S. 823, 107 L. Ed. 2d 49, 110 S. Ct. 83 (1989); United States v. Campbell, 221 U.S. App. D.C. 367, 684 F.2d 141, 150 (D.C. Cir. 1982); and United States v. Sedigh, 658 F.2d 1010, 1014 (5th Cir. 1981), cert. denied, 455 U.S. 921, 71 L. Ed. 2d 462, 102 S. Ct. 1279 (1982). The United States is quite correct in its assertion that these cases involve in camera post-trial inquiries into jury misconduct. Yet, as precedent they suffer from substantial flaws. First, none of them actually addresses the propriety of holding such hearings in camera. The cases simply mention in providing background that the hearings were held in camera. Second, being of such recent vintage they do not establish a tradition of closure. Given the overwhelming historical support for access in other phases of the criminal process, we are reluctant to presume that the opposite rule applies in this case in the absence of a distinct tradition to the contrary.

We conclude that, on the whole, the "experience" prong of the "logic and experience" test provides little guidance in this case. Neither the parties nor this court have been able to find cases dating before 1980 in support of either openness or closure for this type of post-trial proceeding. As such, this case is similar to United States v. Criden, 675 F.2d 550 (3d Cir. 1982), in which this court, because it did not believe that historical analysis was relevant to the determination whether the First Amendment right of access applied to pretrial criminal proceedings, focused on "the current role of the first amendment and the societal interests in open pretrial criminal proceedings." Id. at 555. Thus, in making our determination we will rely primarily on the "logic" prong of the test.

B. Logic

This second part of the "experience and logic" test concerns whether public access to a particular proceeding would enhance the functioning of that proceeding. This court has identified six societal interests that the Supreme Court in Richmond ...

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