Error In Closing Sentencing Proceeding Without Prior Notice And The Opportunity To Be Heard

In considering media challenge to the closure of a sentencing proceeding involving a drug cartel leader without giving the media and public notice and an opportunity to be heard, Fifth Circuit joins with other circuits in holding “that the public and press have a First Amendment right of access to sentencing proceedings,” in In re Hearst Newspapers, L.L.C., 641 F.3d 168 (5th Cir. May 17, 2011) (No. 10-40221)

There is a presumption that criminal and civil cases are open to the public and media. Only under limited circumstances may courtroom proceedings be closed. The Fourth Circuit recently considered a challenge to “a district court's order to close the sentencing proceeding of a drug cartel leader without first giving the press and public notice and an opportunity to be heard regarding the decision to close the hearing” under the First Amendment. The circuit concluded that the district court deprived the media and public of due process by failing to provide any notice or opportunity to be heard before closing the sentencing proceeding.

The public access requirement is secured by two constitutional amendments and under common law. The First Amendment provides a qualified right for the public and media to attend court proceedings and access certain judicial materials. See generally Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 58- (1980) ("We hold that the right to attend criminal trials is implicit in the guarantees of the First Amendment; without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and of the press could be eviscerated.") (citation, footnote, and quotation marks omitted). There is also a general common law right of access to the courts. See generally Nixon v. Warner Communications, Inc., 435 U.S. 589, 597-98 (1978) (noting “the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents” ; “[t]he interest necessary to support the issuance of a writ compelling access has been found, for example, in the citizen's desire to keep a watchful eye on the workings of public agencies”). In criminal cases, the Sixth Amendment provides "the accused" with "the right to a ... public trial." See generally Waller v. Georgia, 467 U.S. 39, 46 (1984) ("there can be little doubt that the explicit Sixth Amendment right of the accused is no less protective of a public trial than the implicit First Amendment right of the press and public").

In the case, defendant Cardenas-Guillen, a leader of a drug cartel, was prosecuted under the drug kingpin statute (continuing-criminal-enterprise) and related offenses. The government described the defendant as "one of the most wanted, feared, and violent drug traffickers in the world.” Hearst Newspapers, 641 F.3d at 172. Some of the filings in the case were sealed, and some hearings were closed, including the plea hearing. The Hearst Newspapers, L.L.C., doing business as the Houston Chronicle, requested that prior notice and an opportunity to be heard be provided before any courtroom closure and that prior documents be unsealed. The government moved to seal the sentencing hearing which the court granted. An attorney for the Hearst Newspapers learned of the closure and prepared a motion to open the proceeding. Ultimately, the sentencing hearing was closed but the case agents, victims and defendant’s wife and daughter were allowed to attend. The district court sentenced the defendant to serve 25 years in prison. The docket record reflecting the fact of the hearing was made public “within hours” of the sentencing hearing. Hearst Newspapers appealed the denial of the request to open the sentencing hearing, for an opportunity to be heard before any closure, and for public notice and opportunity to be heard for any closure of future proceedings.

The Fourth Circuit concluded that the press and public have a First Amendment right of access to sentencing proceedings.

Jurisdiction/Mootness

As a preliminary matter, the circuit found that the issue was not moot even though the sentencing proceeding had already taken place, and the circuit had jurisdiction under the collateral order doctrine and the matter was not moot since it capable of repetition but evading review. Hearst Newspapers, 641 F.3d at 174 (citing Davis v. E. Baton Rouge Parish Sch. Bd., 78 F.3d 920, 926 (5th Cir. 1996) ("We have previously held on several occasions that members of the news media, although not parties to litigation, can appeal court closure orders or confidentiality orders under the collateral order doctrine.")).

"Experience" And "Logic" Test

The First Amendment right of access to the sentencing proceeding was supported by cases in other circuits and the two-part "experience" and "logic" test: “(1) whether the proceeding has historically been open to the public and press; and (2) ‘whether public access plays a significant positive role in the functioning of the particular process in question.’" Hearst Newspapers, 641 F.3d at 175 (quoting Press-Enterprise Co. v. Super. Ct. (Press-Enterprise II), 478 U.S. 1, 8-9 (1986); see also Press-Enterprise Co. v. Super. Ct. (Press-Enterprise I), 464 U.S. 501, 505-09 (1984); Globe Newspaper Co. v. Super. Ct., 457 U.S. 596, 606 (1982) (explaining that "the institutional value of the open criminal trial is recognized in both logic and experience")). The circuit noted the essential nature of sentencing proceedings in the criminal justice process and that the “First Amendment right of access to a trial should, logically, already encompass sentencing hearings.” Hearst Newspapers, 641 F.3d at 177. The circuit noted that “sentencing proceedings have historically been open to the press and public,” and took judicial notice, under FRE 201(b), of “numerous high profile cases of defendants who were considered dangerous” who had open sentencing proceedings. Hearst Newspapers, 641 F.3d at 177 n.3.

Societal Benefits

Open sentencing proceedings advance several positive benefits and serves “a significant positive role” under the criminal justice process. The circuit listed several significant benefits to the public from open sentencing proceedings, including (1) providing a check on the judicial process and use of judicial power; (2) providing the public a chance “to observe whether the defendant is being justly sentenced, especially where the court, rather than a jury, is determining the sentence”; (3) “promot[ing] more accurate fact-finding, either because witnesses are more hesitant to commit perjury in a proceeding open to the public,” or permitting the discovery of unknown witnesses or evidence; (4) safeguarding “the free discussion of governmental affairs" and in an informed manner; and (5) promoting “a ‘community therapeutic value’ to having an open proceeding, because of the concerns and emotions of members of the public who have been affected by a crime or crimes.” Hearst Newspapers, 641 F.3d at 180 (citation marks and other quotation marks omitted).

Other Circuits

The Fifth Circuit noted that other circuits had held that the First Amendment right of access applies to sentencing hearings:

  • Second Circuit: United States v. Alcantara, 396 F.3d 189, 199 (2d Cir. 2005) (holding that “a qualified First Amendment right of public access attaches to sentencing proceedings”)
  • Seventh Circuit: United States v. Eppinger, 49 F.3d 1244, 1253 (7th Cir. 1995) (“In order for Eppinger to overcome the presumption that sentencing hearings should be public, she would have had to show compelling reasons for the court to hear her testify in camera.”)
  • Fourth Circuit: United States v. Soussoudis (In re Washington Post Co. ), 807 F.2d 383, 389 (4th Cir. 1986) (noting “[s]entencings have historically been open to the public”)
  • Ninth Circuit: CBS, Inc. v. U.S. Dist. Ct., 765 F.2d 823, 825 (9th Cir. 1985) ("The primary justifications for access to criminal proceedings ... apply with as much force to post-conviction proceedings as to the trial itself.")

The Fifth Circuit also found support for the right of access to documents used in sentencing proceedings:

  • Second Circuit: United States v. Haller, 837 F.2d 84, 86 (2d Cir. 1988) (plea agreements)
  • Ninth Circuit: Oregonian Publ'g Co. v. U.S. Dist. Ct., 920 F.2d 1462, 1466 (9th Cir. 1990) (plea agreements and related documents); CBS, Inc., 765 F.2d at 824-25 (defendant's motion to reduce sentence under Federal Rule of Criminal Procedure 35 and government's response)
  • Eleventh Circuit: United States v. Santarelli, 729 F.2d 1388, 1390 (11th Cir. 1984) ("[T]he public has a First Amendment right to see and hear that which is admitted in evidence in a public sentencing hearing.")
  • D.C. Circuit: Washington Post v. Robinson (Robinson), 935 F.2d 282, 288 (D.C. Cir. 1991) (plea agreements)

Failure To Provide Notice and Opportunity To Be Heard

A decision to close a sentencing proceeding must be supported by specific findings under established standards:

[T]he presumption [of openness] may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.
Hearst Newspapers, 641 F.3d at 181 (quoting Press-Enterprise II, 478 U.S. at 9-10 (quoting Press-Enterprise I, 464 U.S. at 510) (quotation marks omitted)).


The circuit did not consider whether the decision to close was “substantively correct,” since this part of the ruling was not challenged. However, the sentencing court failed to comply with the procedural requirements to provide notice and an opportunity to be heard before closure.

The circuit noted some options available in providing an opportunity to be heard including the submission of “briefs on whether a proceeding should be closed” and “a hearing at which parties can orally argue before the court.” Hearst Newspapers, 641 F.3d at 184. Additionally, if appropriate, the trial court could file its ruling under seal. The circuit did not foreclose the possibility in an appropriate case which “could justify a trial court's deciding to give no notice or opportunity to be heard, of any kind, before closing a sentencing proceeding,” based on appropriate findings. Hearst Newspapers, 641 F.3d at 183 n.15.

Reversing Court Orders

The district court denied due process by failing to give any notice to the press or public and no opportunity to be heard. The circuit found “the government's contention that security concerns justified the lack of notice and an opportunity to be heard prior to closure of the sentencing proceedings [wa]s unpersuasive,” and the “court had multiple options available to it for providing notice and an opportunity to be heard prior to closure, while also accommodating the security concerns raised by the government.” Hearst Newspapers, 641 F.3d at 184.

Finally, because the sentencing had transpired, it was left undisturbed. Instead the circuit reversed the orders denying the request to open the sentencing hearing, for an opportunity to be heard before any closure, and for public notice and opportunity to be heard for any closure of future proceedings.

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Federal Rules of Evidence
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