The opinion of the court was delivered by: JEFFREY MILLER, District Judge
ORDER GRANTING MOTION TO INTERVENE; DENYING MOTION
FOR ACCESS TO SEALED COURT DOCUMENTS
This case presents the question whether the qualified First Amendment
right of public access attaches to Title III wiretap materials and search
warrant affidavits following the return of indictments but prior to a
substantive challenge to those materials. The Copley Press, Inc.
("Copley"), publisher of The San Diego Union-Tribune, moves to
intervene in this action to obtain access to all sealed records filed
with the court in this case. The Government and Defendants Ralph Inzunza,
Michael Zucchet, and Charles Lewis (collectively "Council Members")
oppose the motion. Defendant Lance Malone appeared at the hearing and
voiced his non-opposition to Copley's motion. Having carefully considered
the record, pertinent legal authorities, and the arguments of counsel,
the court grants the motion to intervene but denies the motion for access
to sealed records without prejudice.
Because the parties are familiar with the allegations contained in the
indictment, the court provides only a brief summary of the counts set
forth in the indictment. On August 28, 2003
Defendants Council Members, Lance Malone, Michael Galardi, John
D'Intino, and David Cowan were charged in a 39 count indictment. All
Defendants except David Cowan are charged in Count 1 with conspiracy to
commit wire fraud, in violation of 18 U.S.C. § 371. Counts 2-34
identify 33 separate acts whereby Defendants (except Cowan) allegedly
used wire communications in interstate commerce in furtherance of the
alleged conspiracy to defraud the public of their intangible right to
honest service, in violation of 18 U.S.C. § 1346, and wire fraud, in
violation of 18 U.S.C. § 1343. Count 35 and 36 allege that, on
February 7, 2002 and again on October 14, 2002, Defendant Inzunza, aided
by Zucchet, Galardi, Malone and D'Intino, unlawfully affected interstate
commerce by "unlawfully obtain[ing] money from defendants Galardi,
Malone, and D'Intino for the benefit of defendant Zucchet" in violation
of 18 U.S.C. § 1951 (the Hobbs Act) and 1952 (Interstate
Transportation in Aid of Racketeering). Counts 37 and 38 allege that
Defendants Galardi, Malone, and D'Intino engaged in bribery of a police
officer on May 4, 2001 and October 18, 2002 in violation of Cal. Penal
Code § 67.5, all in violation of 18 U.S.C. § 1951 and 1952.
Count 39 alleges that Defendant Cowan made a willful and materially false
statement to the FBI when he stated "that he never discussed with Lance
Malone the `no-touch' provision" of the San Diego ordinance in violation
of 18 U.S.C. § 1001.
On December 4, 2003 the Government filed its response and opposition to
Defendants' discovery motions related to possible Government misconduct.
In that response, the Government submitted to the court, under seal, nine
pages of intercepted telephone conversations. The Government submitted
transcripts of the intercepts to support its argument that the undercover
agent "had only one, exceedingly brief, telephonic contact with
Defendants Inzunza and Lewis, separately." (Response at p.6:17-19). At
the time of the December 11, 2003 motions hearing, Defendants withdrew
their discovery motion with respect to possible government misconduct,
without prejudice, subject to renewal at a later date, Shortly
thereafter, Copley filed its motion to unseal the transcript placed under
seal as well as "all sealed records." (Motion at p.1:9-10). In response
to Copley's motion, the Government filed under seal copies of the
intercepted telephone transcripts earlier submitted and the federal
search warrant affidavit executed on May 14, 2003.
Neither the Government nor Copley dispute that the public and press
have a presumptive qualified right to seek access to pretrial criminal
proceedings and documents. Whether the court treats the motion to
intervene as a miscellaneous civil motion seeking access to court
records, see In re Application of New York Times,
708 F. Supp. 603, 604 (S.D.N.Y, 1989), or as a motion to intervene pursuant
to Federal Rule of Civil Procedure 24(b), the result is the same. Copley
has standing to seek access to court records.
Motion for Access to Sealed Records
The First Amendment recognizes "a general right to inspect and copy
public records and documents, including judicial documents and records."
Phoenix Newspapers v. United States Dist. Court, 156 F.3d 940,
946 (9th Cir. 1998) (quoting Nixon v. Wagner Communications,
435 U.S. 589, 597 (1978)). However, "there is no right of access which
attaches to all judicial proceedings, even all criminal proceedings."
Id.; Times Mirror Co. v. United States,
873 F.2d 1210, 1217 (9th Cir. 1989). In addition to a constitutional right of
access, "there is a strong presumption in favor of the common law right
to inspect and copy judicial records." Phoenix Newspapers, 156
F.3d at 946.
Any discussion of the qualified First Amendment right of public access
to criminal proceedings and records must begin with the leading case
of Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1985)
(Press-Enterprise II) Press-Enterprise II sets forth
the analytical framework to be followed in a case such as this. Under the
two-step framework adopted by the Supreme Court, the court determines in
the first instance whether a qualified First Amendment right of access
attaches to the proceeding or documents at issue and, if so, then the
court determines whether closure serves a compelling interest. The first
step "emphasize[s] two complementary considerations" which should be
separately analyzed on the threshold question of whether the First
Amendment right of access even attaches to the proceeding or document.
Id. at 8. The court first considers "whether the place and
process have historically been open to the press and general public."
Id. Then, the court considers "whether public access plays a
significant positive role in the functioning of the particular process in
question." Id; Oregonian Publ'g Co. v. United States
Dist. Court, 920 F.2d 1462, 1465 (9th Cir. 1990). If these two
"considerations of experience and logic" favor disclosure, a qualified
First Amendment right of access attaches to the documents in question.
Once the court determines that a First Amendment right of access
attaches to the particular proceeding or documents at issue, the
proceedings or documents cannot be closed to the public absent a specific
finding "that closure is essential to preserve higher values and is
narrowly tailored to serve that interest." Press-Enterprise Co. v.
Superior Court, 464 U.S. 501, 510 (1985) (Press-Enterprise
I). The court must articulate that interest and make "findings
specific enough that a reviewing court can determine whether the closure
order was properly entered." Id. The Supreme Court "has made
clear that criminal proceedings and documents may be closed to the public
without violating the First Amendment only if three substantive
requirements are satisfied: (1) closure serves a compelling interest; (2)
there is a substantial probability that, in the absence of closure, this
compelling interest would be harmed; and (3) there are no alternatives to
closure that would adequately protect the compelling interest."
Oregonian Publ'g, 920 F.2d at 1466; Press-Enterprise
II, 478 U.S. at 13-14. In the context of disclosure of Title III
intercepts, Press-Enterprise II requires the court to "balance
the public's right of access against the privacy and fair trial interests
of defendants, witnesses and third parties." United States v.
Gerena, 869 F.2d 82, 85 (2d Cir. 1989). The court must also consider
"the privacy interest of innocent third parties as well as those of
defendants that may be harmed by disclosure of the Title III material and
should weigh heavily in a court's balancing equation in determining what
portions of motion papers in question should remain sealed or should be
In light of the standards developed to analyze qualified First
Amendment right of access issues, the court turns to the ...