APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Before Seitz, Chief Judge, and Van Dusen and Gibbons, Circuit Judges.
Philadelphia Newspapers, Inc. (PN) appeals from the district court's denial of its motion for immediate access to the transcript of a pretrial hearing held in camera. PN also appeals from the granting of defendant Howard Criden's motion to conduct a pretrial hearing in camera. This court has jurisdiction over the appeals under 28 U.S.C. § 1291 (1976). See United States v. Cianfrani, 573 F.2d 835, 845 (3d Cir. 1978), implicitly overruled on other grounds in Gannett Co. v. DePasquale, 443 U.S. 368, 99 S. Ct. 2898, 61 L. Ed. 2d 608 (1979).
A. Transcript of the July 18 Hearing
This case arises from the Government's joint prosecution of four "Abscam" defendants, three of whom filed motions to suppress statements they gave to FBI agents. Accompanying Criden's motion was a letter requesting that the district court seal and impound his motion and that the court consider the motion entirely in camera. Criden stated in another letter that the Government did not object to closure. The Government proposed that the document be sealed pursuant to local court rule 4(c), which appears to be limited to protection of the confidentiality of grand jury proceedings.*fn1 The letters, Criden's motion to suppress statements, and the Government's responses to defendants' motions to suppress were not noted on the docket until August 1981.
On July 18, 1980, a reporter for The Philadelphia Inquirer observed witnesses entering judicial chambers. The reporter made inquiry and was informed that testimony was being taken in camera. The closed evidentiary hearing was not announced in open court, and no prior notice was given to the public. The reporter requested access to the hearing, but was advised that the subject matter was confidential. On July 21, PN filed a motion to intervene in the pending cases and a motion for immediate access to the July 18 transcript. The court did not act on the first motion,*fn2 but denied the second. It filed two memoranda concurrently, one publicly and one under seal.*fn3
In the public memorandum, the court did not disclose the nature either of the proceedings or of the motions to which the hearings were addressed, finding that the subject of the hearings involved "matters, the pretrial disclosure of which would inevitably impair or destroy the rights of both the Government and the defendant to a fair trial before an impartial tribunal." PN appealed from the order denying access to the July 18 transcript.
B. September Due Process Hearings
The second hearing at issue involved the defendants' pretrial motions for dismissal of the indictments on the grounds of Government overreaching and entrapment. The district court severed the trials of Schwartz and Jannotti from those of Criden and Johanson, but did not act on the motions to dismiss until after the trial of Schwartz and Jannotti. Criden and Johanson have not been tried in the United States District Court for the Eastern District of Pennsylvania, and indeed, the Government has moved to dismiss the indictments against them.
During the hearing on September 24 on the pretrial motions for dismissal of the indictments, defendants proposed to call as witnesses Criden and Angelo Errichetti, who faced an Abscam indictment in another federal district court. During a side-bar conference, counsel for Criden moved that testimony of his client be taken in camera. At the end of the conference, the court announced to those in the courtroom that "defendants who have not yet been tried or who await further trial are entitled to be heard in chambers regarding the substance of the case, and therefore this hearing will be closed to the public and the press."
After an hour recess, the court stated that it had received a request that the evidentiary hearing not be closed. The district court invited argument from any interested person. Counsel for Criden contended that the hearing was in the nature of a pretrial hearing and that the information to be brought out, if publicized, would impair Criden's right to a fair trial. The court ruled that counsel had made "a prima facie case for closing the hearing." Counsel for PN opposed closure, incorporating by reference argument made in support of PN's July 21 motion and asserting further that the matter was no longer just a pretrial proceeding.
The court ruled that any testimony of Criden, Errichetti, and Johanson would be taken in camera. The court noted that, as to Criden, Errichetti, and Johanson, the case was still in pretrial stages and that their testimony on the pending motions would not be admissible against them in their subsequent trials. The court filed a written order closing the proceeding.
PN appealed from this order.*fn4
PN appealed from two orders: one denying access to the transcript of the July 18 hearing and the other denying access to the September 24 hearing. Transcripts of both hearings are now available to the public,*fn5 and it is arguable that the cases are moot. Some cases, however, are reviewable as disputes that are "capable of repetition, yet evading review." Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S. Ct. 279, 283, 55 L. Ed. 310 (1911). The United States Supreme Court has stated that " "in the absence of a class action, the "capable of repetition, yet evading review" doctrine was limited to the situation where two elements combined: (1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again.' " Murphy v. Hunt, 455 U.S. 478, 102 S. Ct. 1181, 1183, 71 L. Ed. 2d 353 (1982)(per curiam) (quoting Weinstein v. Bradford, 423 U.S. 147, 149, 96 S. Ct. 347, 348, 46 L. Ed. 2d 350 (1975) (per curiam)).
We believe the two appeals before us are not moot under the standard stated in Murphy. In Gannett, the Court stated: "The order closing a pretrial hearing is too short in its duration to permit full review. And to the extent the order has the effect of denying access to the transcript .... (t)he order is "by nature short-lived.' " 443 U.S. at 377, 99 S. Ct. at 2904 (quoting Nebraska Press Assn. v. Stuart, 427 U.S. 539, 547, 96 S. Ct. 2791, 2797, 49 L. Ed. 2d 683 (1976)). Further, it is reasonable to expect that PN, a major newspaper publisher in the Philadelphia area, will be subjected to ...