Argued and Submitted, Seattle, Washington February 5,
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Appeal from the United States District Court for the Western District of Washington. D.C. No. 12-gj-00149. Richard A. Jones, District Judge, Presiding.
Neil M. Fox (argued), Law Office of Neil Fox, PLLC, Seattle, Washington, for Invervenor-Appellant Index Newspapers LLC, dba The Stranger.
Kimberly N. Gordon (argued), Law Offices of Gordon & Saunders, PLLC, Seattle, Washington, for Defendant-Appellee Matthew Duran.
Michael S. Morgan (argued) and Michael W. Dion, Assistant United States Attorneys; Jenny A. Durkan, United States Attorney, Western District of Washington, Seattle, Washington, for Plaintiff-Appellee United States.
Before: Raymond C. Fisher, Ronald M. Gould, and Morgan Christen, Circuit Judges. Opinion by Judge Christen.
CHRISTEN, Circuit Judge:
This case requires us to decide the extent to which the public's qualified right of access to court proceedings must give way to the need for secrecy when a grand jury witness is held in civil contempt and confined. We consider the district court's order granting in part and denying in part a newspaper's motion to unseal transcripts and filings related to a grand jury witness's contempt and continued confinement proceedings.
All of the parties agree that there is no public right of access to grand jury transcripts, but Index Newspapers, LLC, dba The Stranger, asserts that once a grand jury witness is subject to ancillary contempt proceedings, any part of the contempt hearing transcript and related filings not covered by Federal Rule of Criminal Procedure 6(e) must be open to the public. After full consideration of the issues raised by this case, we conclude there is a First Amendment right of access to some of the transcripts and filings
related to Matthew Duran's contempt proceeding. We have jurisdiction under 28 U.S.C. § 1291, and we affirm the district court's ruling in part, reverse in part, and remand.
On May 1, 2012, violence broke out on the streets of downtown Seattle and demonstrators dressed in black vandalized buildings and cars. The May Day demonstrators smashed windows, used large sticks to damage buildings, spray-painted cars, and committed other crimes. The William Kenzo Nakamura United States Courthouse was one of the buildings damaged during the demonstration. These events were widely publicized by the news media, and a reporter for The Stranger, a weekly newspaper based in Seattle, began writing about the grand jury investigation that followed.
I. Contempt proceedings ancillary to the grand jury investigation
Several months after the May Day demonstration, Matthew Duran and K.O. were subpoenaed to testify before the federal grand jury in the Western District of Washington. Both Duran and K.O. filed motions to quash the grand jury subpoenas, and both motions were denied. Duran and K.O. refused to testify before the grand jury, and separate contempt proceedings were held in the district court. The two contempt proceedings were conducted in a nearly identical fashion, just a few hours after each witness refused to testify. The district court began with the courtroom closed to the public and heard testimony reciting portions of the grand jury transcript in which Duran and K.O. refused to answer questions asked of them. Next, the district court made findings of fact based on the record and then opened the courtroom. The district court announced that Duran and K.O. were in contempt and ordered them confined. The court also explained that Duran and K.O. would be released if they agreed to testify. The court's written orders stated that Duran and K.O. could be confined until either the grand jury, and all of its extensions, expired, or until eighteen months passed.
During the open portion of Duran's contempt proceeding, the district court explained: " It is not [the] court's preference to have [Duran] languish for an indefinite period of time without any direct contact or communication with [the] court." The court scheduled a status hearing approximately two weeks after the contempt hearing so Duran could return to court and reconsider whether he was willing to testify. Prior to the status hearing, Duran filed a brief arguing that his confinement should be terminated.
Duran's status hearing was held in the same fashion as his contempt hearing; the first part of the hearing was closed to the public, and then the courtroom was opened. During the open portion of the status hearing, Duran's attorney explained that Duran had been held in solitary confinement almost the entire time since he was ordered confined. The district court found that Duran remained in contempt because he continued to refuse to testify, that he had access to his counsel while confined, and that his detention had not become more punitive than coercive. The government suggested that the district court set the next status hearing six months out or not set a date at all. Duran's counsel took the position that the court should not schedule another status hearing because her client was not going
to change his mind, even after being confined for a longer period of time. In the end, the court did not schedule a follow-up status hearing, but it did reiterate that Duran was free to contact the court through counsel and that the court would make itself available to Duran if he changed his mind and decided to comply with the order directing him to testify before the grand jury.
About five months later, Duran and K.O. filed motions to terminate their confinement. They persisted in their refusal to testify but argued that confinement had become more punitive than coercive. The government opposed the motions. Six days after the motions to terminate confinement were filed, the district court issued an order requiring that Duran and K.O. be released from custody no later than the following day. The court found that Duran and K.O. had been held in solitary confinement " [f]or a substantial portion of [their] confinement," that " [t]heir physical health ha[d] deteriorated sharply and their mental health ha[d] also suffered," and that " [t]heir confinement ha[d] cost them; they ha[d] suffered the loss of jobs, income, and important personal relationships." The district court concluded it was unlikely that continued confinement would coerce Duran or K.O. to testify.
II. The Stranger's motion to unseal Duran's and K.O.'s files
All motions and accompanying papers related to grand jury proceedings are sealed as a matter of course in the Western District of Washington. See Local Rules, W.D. Wash. CrR 6(j)(2) (" The Clerk's office shall accept for filing under seal without the need for further judicial authorization all motions and accompanying papers designated by counsel as related to Grand Jury matters." ). Presumably due to this rule, the district court records in Duran's and K.O.'s contempt cases were sealed, including the paper and electronic docket sheets for each file. That is, the public was not able to access the paper or electronic list of documents filed in either contempt case, nor were the documents themselves available for the public to view. In fact, a member of the public who tried to access either file would not have been able to find any record of either proceeding.
While Duran and K.O. were still in custody, The Stranger filed two nearly identical motions with the district court to unseal any portions of the district court records that did not contain matters covered by the grand jury secrecy requirements of Federal Rule of Criminal Procedure 6(e). The Stranger 's motions recognized that some of the relevant documents may be subject to redaction. The government opposed the motions to unseal, arguing that the materials sought were properly sealed because they disclosed " matters occurring before the grand jury." Duran and K.O. filed declarations in support of the motions to unseal, and The Stranger filed a reply.
The district court granted the motions to unseal in part and denied them in part. It explained that there is no public right of access to grand jury proceedings and, likewise, no public right of access to the court record of proceedings held ancillary to grand jury investigations. The court acknowledged that all records having any connection to the grand jury are not necessarily secret. Quoting Federal Rule of Criminal Procedure 6(e)(5),
it stated, " a witness who the grand jury subpoenas has a 'right to an open hearing in a contempt proceeding.'" Qualifying this statement, the district court noted that the public has no right to access the portions of the contempt hearing in which grand jury secrets are disclosed, such as when grand jury testimony is read. The court explained that it was unclear exactly what The Stranger wanted unsealed, but it assumed that The Stranger wanted the court to unseal as much of Duran's contempt record as possible. The court reasoned that the record The Stranger sought was " a mix of secret grand jury material, grand jury material that may have lost its secrecy, legal argument, banal information, and more." It also stated that " [i]t is perhaps possible to assess every document in these files to redact secret grand jury material and divulge the remainder," but doing so " would likely [create] an incomplete and sometimes indecipherable 'court file' that would be as likely to mislead the public as to enlighten it." It ruled that the court had no obligation " to sift through these grand jury proceedings to determine what is secret and what is not."
The district court concluded:
The public has a right to the transcripts of the open portions of the hearings, but no more. As to the written material submitted to the court in connection with the contempt proceedings, they contain grand jury information, and they are not subject to the public right of access that applies to contempt hearings.
The district court ordered Duran's and K.O.'s files to remain sealed, but explained that " The Stranger, like any other member of the public, is entitled to access the transcripts of the public portions of [the contempt] hearings."
The Stranger petitions this court for a writ of mandamus directing the United States District Court for the Western District of Washington to unseal the portions of Duran's and K.O.'s contempt files that do not contain matters shielded by Rule 6(e). The Stranger also appeals from the district court's order denying in part its motion to unseal the court's record of Duran's contempt proceeding. Because we decide The Stranger is entitled to bring a direct appeal, we dismiss the petition for writ of mandamus. This opinion does not address the district court's order denying The Stranger 's motion to unseal the court's record of K.O.'s contempt proceeding because The Stranger did not appeal that order.
STANDARD OF REVIEW
We review de novo whether the public has a right of access to the judicial record of court proceedings under the First Amendment, the common law, or Federal Rule of Criminal Procedure 6(e), because these are questions of law. See Times Mirror Co. v. United States, 873 F.2d 1210, 1212 (9th Cir. 1989). When the district court conscientiously balances the common law presumption in favor of access against important countervailing interests, we review a decision whether or not to unseal the judicial record for abuse of discretion. See San Jose Mercury News, Inc. v. U.S. Dist. Court, 187 F.3d 1096, 1102 (9th Cir. 1999).
I. Direct appeal was the appropriate procedure for The Stranger to seek review of the district court's order.
The Stranger filed a petition for a writ of mandamus in this court. It separately appealed the district court's order partially denying its motion to unseal the record ...