As indicated above, the logic test asks whether public access would play a significant positive role in the functioning of the particular process.⁽¹⁸⁾ Press-Enterprise II, 478 U.S. at 8. For the reasons set forth below, we conclude that public access to the backup documentation, motions, orders, and hearing transcripts will not play a significant positive role in the functioning of the CJA process, and that, in fact, access would play, as in McVeigh II, 119 F.3d at 813, a negative role in the process. In short, logic does not support release of these documents.

Just as the grand jury process is the "classic example" of a government process that would be totally frustrated if conducted openly, see Press-Enterprise II, 478 U.S. at 9 (citing Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 218 (1979)), so too would CJA proceedings be frustrated if conducted openly. The CJA process is the defendant's means of preparing a defense, and keeping that process closed will prevent the government from being "tipped off" as to the direction in which the defendant's trial strategy is heading. See In re Grand Jury Proceedings (Smith), 579 F.2d 836, 840 (3rd Cir. 1978); see also Franks v. Delaware, 438 U.S. 154, 169 (1978).

The CJA, which requires that a defendant reveal a high degree of detail about his or her reasons for requesting assistance other than counsel in preparing for trial, see United States v. Kennedy, 64 F.3d 1465, 1470 (10th Cir. 1995); United States v. Mundt, 508 F.2d 904, 908 (10th Cir. 1974), recognizes that confidentiality of that detail is vital to the proper functioning of the CJA process. See Marshall v. United States, 423 F.2d 1315, 1317-19 (10th Cir. 1970); see also Lawson v. Dixon, 3 F.3d 743, 751 (4th Cir. 1993); United States v. Edwards, 488 F.2d 1154, 1160-62 (5th Cir. 1974). Therefore, the CJA provides that the process for requesting assistance other than counsel is to be ex parte, see 18 U.S.C. § 3006A(e)(1), so as not to reveal the strengths and weaknesses of a defendant's case and his or her trial strategy, including possible defenses, witnesses, and evidence to be used at trial. Likewise, the backup documentation to the attorneys' vouchers reveals much of the same information as that contained in requests for services other than counsel, and the same reasons justifying closure of those proceedings apply to the backup documentation.

Another reason grand juries function best in secret is because secrecy "encourage[s] free and untrammeled disclosures by persons who have information." Douglas Oil Co., 441 U.S. at 219 n.10 (quotations omitted). Without an assurance that the information revealed at CJA hearings and in documents submitted to the court will not be disclosed, a defendant and his or her counsel would be discouraged from fully disclosing the information to the court. Cf. State v. Ballard, 428 S.E.2d 178, 183 (N.C. 1993) ("Only in the relative freedom of a nonadversarial atmosphere can the defense drop inhibitions regarding its strategies and put before the trial court all available evidence of a need for psychiatric assistance."); United States v. Huckaby, 43 F.3d 135, 138 (5th Cir. 1995) ("Disclosure of [presentence reports] to the public may stifle or discourage that vital transmission of information by the defendants . . . and by cooperating third parties.").

Also, information obtained by the public prior to judgment could influence the jury or prospective jury and would provide the government with "unauthorized discovery which is forbidden under our concept of criminal procedure." Edwards, 488 F.2d at 1162; see Fed. R. Crim. P. 16(b)(2); see also Marshall, 423 F.2d at 1318. And information obtained after judgment could still be used by the government to investigate and bring new charges against a defendant or other individuals, including potential witnesses and other sources of information. These ramifications would ultimately decrease the information the court could use to make a decision, would hinder the court's fact-finding ability, see Grove Fresh Distribs., Inc. v. Everfresh Juice Co., 24 F.3d 893, 897 (7th Cir. 1994) (fostering more accurate fact finding should be a positive role of public scrutiny), and would, therefore, impede its ability to correctly decide whether and how much assistance to grant the defendant.

Moreover, much of the information disclosed to the court during the CJA process does not ultimately become part of the criminal trial. A defendant's request for investigative services to look into possible defenses, for example, will not always be fruitful for the defense. Likewise, a defendant's request for funds to interview potential witnesses does not always result in the defendant's use of those witnesses at trial. The danger in disclosing this type of information was manifest in Marshall, 423 F.2d at 1319, where the government learned of the existence of a witness who ultimately testified against the defendant only because the district court had erroneously allowed the government to attend the CJA hearing.

In McVeigh II, 119 F.3d at 813, we held that press access to suppressed evidence would play a negative role in the functioning of the criminal process by exposing the public and potential jurors in particular to incriminating evidence not to be introduced at trial. Press access to information disclosed in the CJA process, most of which will not be introduced in the trial, will also play a negative role in the criminal process.

In addition, the CJA process is part of the means by which an indigent defendant obtains discovery. The detail required of the defendant in the CJA process includes the specific information he expects to find. See Kennedy, 64 F.3d at 1470; Mundt, 508 F.2d at 908. Discovery proceedings are fundamentally different from other proceedings to which courts have recognized a First Amendment right of access. See Anderson v. Cryovac, Inc., 805 F.2d 1, 11-12 (1st Cir. 1986). Therefore, disclosing the information a court considers in making what is essentially a determination of the scope of discovery would make the CJA process more complicated and burdensome. Id. at 12; see also Seattle Times Co. v. Rhinehart, 467 U.S. 20, 32-33 (1984) (holding that party had no First Amendment right to disseminate information obtained by the "legislative grace" of discovery which "may be unrelated, or only tangentially related, to the underlying cause of action").

The Journal emphasizes the positive role access would provide by ensuring the quality of the judge's decision-making, by limiting the potential for abuse by the judge and defense counsel, and by educating the public as to how its money is being spent in criminal defense. Intervenor's First Br. at 14-17. As we have discussed above, we do not believe the judge's decision-making will be improved by an open process, and it may well be hindered. In addition, we point out that the judge's involvement in the process is the protection against corruption, as opposed, for instance, to expenditures by the prosecution and Federal Public Defenders Offices which in the detail sought here, are not subject to judicial supervision or public scrutiny. We see little reason to believe that "public scrutiny" would sway these types of rulings by the court.

Obviously, disclosure would provide some information to the public, but we agree with the Ninth Circuit that "[w]ere we to accept this argument, few, if any, judicial proceedings would remain closed. Every judicial proceeding, indeed every governmental process, arguably benefits from public scrutiny to some degree, in that openness leads to a better-informed citizenry and tends to deter government officials from abusing the powers of government." Times Mirror Co. v. United States, 873 F.2d 1210, 1213 (9th Cir. 1989). Yet, "because the integrity and independence" of proceedings such as the grand jury, jury deliberations, and the internal communications of the court "are threatened by public disclosures, claims of 'improved self-governance' and 'the promotion of fairness' cannot be used as an incantation to open these proceedings to the public." Id.

The Albuquerque Journal's "information" arguments would apply to every governmental process, including those of the executive branch, where the Supreme Court has extended no First Amendment right of access. See El Dia, Inc. v. Hernandez Colon, 963 F.2d 488, 494-95 (1st Cir. 1992); see, e.g., Calder v. Internal Revenue Serv., 890 F.2d 781, 783-84 (5th Cir. 1989) (denying First Amendment right of access to IRS records held by that agency); Capital Cities Media, Inc. v. Chester, 797 F.2d 1164, 1175-76 (3d Cir. 1986) (denying First Amendment right of access to records of state agency). Indeed, there is no First Amendment right of access to government processes in general. See Houchins v. KQED, Inc., 438 U.S. 1, 14-15 (1978). And although Congress can choose to open some of those processes, Justice Stewart has commented that the "Constitution itself is neither a Freedom of Information Act nor an Official Secrets Act." Id. at 15 (quoting Stewart, Or of the Press, 26 Hastings L.J. 631, 636 (1975)); see also In re Motions of Dow Jones & Co., 142 F.3d 496, 502 (D.C. Cir. 1998) ("The Chief Judge can allow some public access [to grand jury-related matters, b]ut it will be done because the Federal Rules of Criminal Procedure confer this authority on district courts, not because the First Amendment demands it.").

Moreover, the linchpin of the Albuquerque Journal's claim to a First Amendment right of access is that judicial discretion has been applied. Yet, in many contexts, courts have rejected a constitutional right of access where judicial discretion has been applied, even in proceedings relating to the guilt or innocence of the defendant and even though the public would have been educated and the participant's actions would have been checked. These include: presentence reports relied on by the court in making a sentencing decision, United States v. Corbitt, 879 F.2d 224, 229-30 (7th Cir. 1989); pre-indictment search warrant affidavits used by the court in considering search warrant applications, Baltimore Sun Co. v. Goetz, 886 F.2d 60, 64-65 (4th Cir. 1989); Times Mirror Co., 873 F.2d at 1218; documents considered by the court in ruling on civil discovery motions, Cryovac, Inc., 805 F.2d at 11-12; grand jury proceedings and ancillary proceedings or documents related thereto, In re Motions of Dow Jones & Co., 142 F.3d at 498-99, 502-03; and evidence actually ruled inadmissible by the court in suppression hearings, McVeigh II, 119 F.3d at 813.⁽¹⁹⁾ In the instant case, the CJA process is not even a preliminary process relating to the guilt of the defendant, nor does the information contained in the CJA documents relate to the core proceeding--the determination of the guilt or innocence of the defendant.

As an alternative argument, the Journal contends that the process will not be hindered if the court selectively redacts any information that may hurt the process. Intervenor's Third Br. at 13-14. After reviewing many of the materials contained in the record of this case, we disagree. The hearing transcripts, motions, orders, and backup documentation are replete with sensitive information, the release of which would harm the CJA process as discussed above. The public has an interest not only in the way its funds are used but also in seeing that judicial processes are efficient and that defendants are given the "'basic tools'" and "'raw materials integral to'" the presentation of an adequate defense so as to ensure a fair trial. See Kennedy, 64 F.3d at 1473 (quoting Ake v. Oklahoma, 470 U.S. 68, 76 (1985)).

Requiring the release of the requested materials would entail an extensive--not to mention expensive--use of court and counsel effort by forcing counsel to be more careful in the information presented to the court for fear of future disclosure and by forcing the court and counsel to ensure that most of the information in the CJA materials is ultimately redacted. Cf. In re Search Warrant for Secretarial Area Outside Office of Gunn, 855 F.2d at 574-75 (holding that even where the First Amendment right of access applied, line-by-line redaction of the sealed documents was not practicable, and thus not required); see also Seattle Times Co., 476 U.S. at 36 n.23; Cryovac, Inc., 805 F.2d at 12. Especially in a high profile case like this one, effective, efficient, and fair procedures must be employed. See McVeigh II, 119 F.3d at 813. Access only to those portions of the materials that do not contain the implicated information would be a Pyrrhic victory for access, with little benefit to the functioning of the system. See Cryovac, Inc., 805 F.2d at 12.

In sum, neither experience nor logic lead us to conclude that there is a First Amendment right of access to CJA-related backup documentation, motions, orders, and hearing transcripts.

b. CJA Vouchers

We find it unnecessary to address whether there is a constitutional right to the vouchers themselves because the district court's order already requires release of the vouchers--a decision we uphold on other grounds discussed below. As we said at the outset of this discussion, we avoid deciding cases on constitutional grounds if they can be resolved on another basis. Since the Journal already has the relief it seeks as to disclosure in general, any opinion on constitutional grounds would be merely advisory.⁽²⁰⁾

This conclusion still leaves unanswered the Journal's arguments with respect to the timing of the vouchers' release. It is the Journal's position that access to the vouchers at the end of trial is not enough--immediate access is required. We disagree. In our view, there is no constitutional right in this case to timing as opposed to access itself. Here, the Defendants are represented by CJA attorneys, who handle only a minority of the total criminal caseload, and of that minority, only a minority of all CJA attorneys submit vouchers on an interim basis, so, at best, we are dealing with a fraction of a fraction of cases. Further, we must observe that while vouchers are required to be submitted, they are not required to be submitted on an interim basis. Thus, it is fortuitous that here the vouchers have been submitted on an interim basis, which depends to a large extent on the attorneys' financial strength. Certainly, the Journal could not argue that the First Amendment would compel CJA attorneys to submit vouchers on an interim basis because there is a constitutional right to immediate access to accruing data, as opposed to access itself.

To support its timing argument, the Journal relies on United States v. Suarez, 880 F.2d 626 (2d Cir. 1989), where the Second Circuit upheld on First Amendment grounds a district court order permitting the press access to interim vouchers. We think Suarez is distinguishable. In that case, the district court's order only addressed present access to interim vouchers. No order existed allowing access to vouchers at the end of trial, and the district court was not called upon and did not address the interim voucher issue in such a context. Thus, the Second Circuit's review was limited, and there is no way to discern from the opinion how much the reasoning was driven by the subject of access itself, and how much significance, if any, the court placed on timing. In short, we do not know how the Second Circuit would have ruled if faced with a situation like that before us, where the district court has already ordered release of the vouchers at the end of the proceedings.

Likewise, we find the Journal's reliance throughout its briefs on United States v. McVeigh, 918 F. Supp. 1452 (W.D. Okla. 1996), contrary to its position with respect to timing. There the court never made clear whether it found a qualified First Amendment right or whether it based its decision on the common law, see McVeigh, 918 F. Supp. at 1464, but its conclusion was that interim vouchers should not be released. Id. at 1465.

If we were to apply the experience and logic test to the issue of immediate access to the vouchers, it is clear for all the reasons stated earlier in this opinion, and more, that it would fail. In the end, we agree with the McVeigh court that revealing the amounts of interim payments is not a reasonable alternative to full disclosure because it would "distort the public perception about the fairness of the process because the expenditures, out of context, would emphasize costs without any information about benefits obtained." Id. at 1465.

B. Common Law Access and the CJA Statutory Scheme

The Albuquerque Journal argues that even if we do not find a First Amendment right of access, all of the CJA materials should still be unsealed pursuant to the common law and/or the CJA statutory scheme. We reject the Journal's common law argument for two reasons. First, the statute and regulations discussed below occupy this field and would supercede the common law right even if one existed. See United States v. Texas, 507 U.S. 529, 534 (1993); see also In re Motions of Dow Jones & Co., 142 F.3d 496, 504 (D.C. Cir. 1998) (common law right of access to grand jury-related information is supplanted by Fed. R. Crim. P. 6(e)(5), 6(e)(6)); Lanphere & Urbaniak v. Colorado, 21 F.3d 1508, 1511 (10th Cir. 1994) (common law right of access to criminal justice records is supplanted by Colorado statute). Second, as we have discussed above, the CJA materials are not "judicial documents" as that term is used by courts that have applied the common law right of access. Rather, these are administrative documents, see United States v. Davis, 953 F.2d 1482, 1498 n.21 (10th Cir. 1992), to which there is no right of access under the common law. We therefore analyze to what extent the materials should be released under the CJA.

The CJA was enacted in 1964 "to insure effective representation for those charged with a crime or confronted with the risk of being deprived of constitutional rights in ancillary proceedings." United States v. Smith, 633 F.2d 739, 741 (7th Cir. 1980) (citing H.R. Rep. No. 91-1546 (1970), reprinted in 1970 U.S.C.C.A.N. 3982, 3983); see also United States v. Edwards, 488 F.2d 1154, 1161-62 (5th Cir. 1974). To achieve its purpose, the CJA provides for both representation by counsel and "other services necessary for adequate representation." 18 U.S.C. § 3006A(e)(1).

The version of the statute in effect for this case provides that the Judicial Conference of the United States "may, from time to time, issue rules and regulations governing the operation of plans formulated under this section." 18 U.S.C. § 3006A(h). Accordingly, the Administrative Office, under the direction of the Judicial Conference, has promulgated rules relating to the release of all types of CJA information. See AO Guide, chap. III, part A, § 3.03; chap. V, § 5.01. The AO Guide includes the forms to be used in conjunction with the CJA process, including forms 20, 21, 30, and 31 discussed above. We apply the version of the AO Guide applicable to this case in our discussion below.

Under the statute and regulations, the information related to counsel's fees is presumptively accessible to the public. It may be sealed at the discretion of the district court upon motion of the defendant or on the court's own motion. Similarly, this information that is placed under seal may be released later at the court's discretion, after consideration of the interests discussed below. To the contrary, information pertaining to the application for services other than counsel is sealed from the outset. After trial, the court has the discretion, after finding on the record that the same interests are protected, to release this information as well.

Although the CJA has been amended twice since the present case was commenced and both amendments have altered the provisions for access to CJA vouchers,⁽²¹⁾ the amendments essentially codify the regulations. However, one amendment specifically provides that amounts expended under the CJA "shall be made available to the public," 18 U.S.C. § 3006A(e)(4), which apparently takes the discretion away from the district court as to the release of the totals. In death penalty cases, the amounts are to be made available to the public "after the disposition of the petition." 21 U.S.C. § 848(q)(10)(C). In addition, one of the amendments, applicable only to death penalty cases, changes the presumption from an ex parte hearing for services other than counsel to a process which is not to be held ex parte "unless a proper showing is made concerning the need for confidentiality." 21 U.S.C. § 848(q)(9). Our interpretation of the statute in effect for this case is consistent with the amendments, except as those amendments alter access to CJA information in death penalty cases.

1. Motions, Orders, and Hearing Transcripts Related to the Retention and Compensation of Services Other Than Counsel

Services other than counsel that are necessary for adequate representation may be obtained by a defendant who is financially unable to obtain them, upon an ex parte application, heard by the court in camera. See 18 U.S.C. § 3006A(e); AO Guide, chap. III, part A, § 3.03. The application, which is not a voucher but is usually an ex parte motion followed by an ex parte hearing, "shall not be revealed without the consent of the defendant. The application shall be placed under seal until the final disposition of the case in the trial court, subject to further order of the court. Maintaining the secrecy of the application prevents the possibility that an open hearing may cause a defendant to reveal his or her defense." Id. § 3.03. Similar procedures are provided in death penalty cases under the version of the statute applicable to this case. See 21 U.S.C. § 848(q)(9).

The legislative history of the act indicates that the need for secrecy in obtaining services other than counsel is to prevent "the possibility that an open hearing may cause a defendant to reveal his defense." H.R. Rep. No. 88-864 (1963), reprinted in 1964 U.S.C.C.A.N. 2990, 2990; see also Marshall v. United States, 423 F.2d 1315, 1318 (10th Cir. 1970). Because the Defendants are "act[ing] jointly, sharing responsibility for motions and investigation and attending joint strategy sessions . . . to avoid duplicative efforts and to minimize expenses," United States v. Gonzales, No. CR-95-538-MV, 1997 WL 155403, at *12 (D.N.M. Feb. 11, 1997), the release of any CJA documents prior to the last Defendant's sentencing would prejudice that Defendant by causing him "to reveal his defense." H.R. Rep. No. 88-864 (1963), reprinted in 1964 U.S.C.C.A.N. 2990, 2990. Thus, we reject the Albuquerque Journal's argument that materials related to services other than counsel should be released prior to the end of all Defendants' sentencing hearings.

The district court, however, because it found a First Amendment right of access, ordered that all CJA-related documents, motions, orders, and hearing transcripts be released after the last remaining Defendant is sentenced. Pursuant to the CJA statutory and regulatory scheme, we conclude that this information is presumptively closed. The scheme favors continuing confidentiality of the information, and given the interests identified in the discussion of the logic prong of the constitutional analysis above, we conclude that the district court abused its discretion in ordering that the motions, orders, and hearing transcripts related to services other than counsel be released.

2. Materials Related to the Appointment and Compensation of Counsel and the Backup Documentation to Vouchers for Services Other Than Counsel

The CJA provides that appointment of counsel is to be achieved after determining that the defendant is financially unable to obtain counsel pursuant to a plan implemented by each district court. See 18 U.S.C. § 3006A(b). Similar procedures apply to death penalty cases. See 18 U.S.C. § 3005; 21 U.S.C. § 848(q)(4)-(8), (10). Neither the statute nor the Administrative Office's rules specify whether this procedure is to be done ex parte.

Section 5.01 of the AO Guide changes the presumption from one of secrecy in non-attorney retention and compensation to one of openness for information not otherwise routinely available to the public, while still giving the court the discretion to place CJA-related materials under seal "until after all judicial proceedings⁽²²⁾ in the case are completed and for such time thereafter as the court deems appropriate." This section of the AO Guide also applies to the backup documentation to the vouchers for services other than counsel.⁽²³⁾ Information should be released unless "its release might . . . unduly intrude upon the privacy of attorneys or defendants or compromise defense strategies, investigative procedures, attorney work product, the attorney-client relationship or privileged information provided by the defendant or other sources." Id.

In our discussion of the logic prong of the Press-Enterprise II analysis above, we considered several of these factors, concluding that access to CJA materials, including backup documentation to CJA forms 20, 21, 30, and 31, and motions, orders, and hearing transcripts related to the appointment of counsel, would not play a significant positive role on the functioning of the CJA process. In addition to those factors discussed above, we conclude that the other factors also favor continued sealing of these CJA materials, even after sentencing is completed.

The district court considered several of these other factors, but did so in the context of its Press-Enterprise II analysis of "higher values." First, the district court found, and we agree, that allowing disclosure of the backup documentation to the attorneys' requests for compensation may "subject innocent people who have been interviewed or investigated by Defendants to public speculation about their involvement in the crime." Gonzales, 1997 WL 155403, at *8. This interest is similar to one justification for keeping grand jury proceedings secret even after trial is over. See Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 219 (1979); see also United States v. Corbitt, 879 F.2d 224, 231 & nn.8-9 (7th Cir. 1989); Times Mirror Co. v. United States, 873 F.2d 1210, 1216 (9th Cir. 1989).

In addition, several witnesses are in the Witness Protection Program, and information, such as the places to which defense counsel have traveled, which could reveal their location should not be disclosed. See United States v. Hickey, 767 F.2d 705, 708 (10th Cir. 1985); cf. Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607-08 (1982). Non-witnesses also have a privacy interest in retaining anonymity for similar safety reasons. We disagree, therefore, with the district court's apparent conclusion that a non-defendant's privacy interest is only valid until the "conclusion of litigation." Gonzales, 1997 WL 155403, at *8.

Second, release of the backup documentation, motions, orders, and hearing transcripts related to the appointment and compensation of counsel and of the backup documentation to vouchers for services other than counsel will intrude on the privacy interests of the Defendants and will reveal privileged information provided by the Defendants. As discussed above, disclosure of this CJA information may implicate the Defendants' Fifth Amendment rights as to the instant crime. It may also put the government "in a position to investigate and bring new charges against [defendants who inculpate themselves in uncharged criminal conduct in order to obtain an adequate defense]." Supplemental R. Vol. I, Tab 2073 at 5 n.1 (district court order granting in part defendants' motion to stay pending appeal). These privacy interests also do not cease at the conclusion of the litigation.

Third, unsealing the backup documentation, motions, orders and hearing transcripts related to the appointment and compensation of counsel and the backup documentation to vouchers for services other than counsel would reveal information protected by the attorney-client privilege and by the attorney work-product doctrine. In addition to the attorney being reluctant to provide the court with information necessary to obtain services for the defense as discussed above,⁽²⁴⁾ the specter of the release of detailed backup documentation to the attorney's vouchers and non-attorney's vouchers, which, the district court found, "often contain information directly or indirectly implicating the attorney-client privilege," would make a defendant "reluctant to reveal information that could help the attorney in the defense of the case, or in analyzing the strength of the case for trial."⁽²⁵⁾ Gonzales, 1997 WL 155403, at *8; see Crystal Grower's Corp. v. Dobbins, 616 F.2d 458, 461 (10th Cir. 1980). The importance of this privilege and doctrine is well-established, see Upjohn Co. v. United States, 449 U.S. 383, 389-92 (1981), a point which the Supreme Court just recently reemphasized in holding that the attorney-client privilege extends beyond the death of the client. See Swidler & Berlin v. United States, No. 97-1192, -- S. Ct. --, 1998 WL 333019, at *3-7 (U.S. June 25, 1998). Certainly, then, the privilege does not terminate when the Defendants' trials are over.

Accordingly, we conclude that the district court abused its discretion in ordering that the backup documentation, motions, orders and hearing transcripts related to the appointment and compensation of counsel and the backup documentation to vouchers for services other than counsel should be unsealed after the conclusion of all Defendants' sentencing hearings.

3. Vouchers and Total Expenditures

Finally, we address the district court's order that the total attorney fees and overall total paid through CJA funds be released for each Defendant after that Defendant is sentenced and that all of the vouchers themselves (without the backup documentation) be released at the end of all Defendants' sentencing hearings. The district court found that because the vouchers (forms 20, 21, 30, and 31) themselves contain trial strategy, Gonzales, 1997 WL 155403, at *7, release of the entire vouchers prior to the conclusion of all Defendants' trials would harm Defendants not yet tried. The court considered the interests involved and properly applied its discretion to release the total amount spent on counsel and the total amount spent overall on each Defendant at the end of that Defendant's sentencing hearing and to save the release of the vouchers themselves until all Defendants' sentencing hearings are completed. We find no abuse in the court's conclusion that forms 21 and 31, relating to the compensation of experts, investigators, and others, contain trial strategy. Although we question how much trial strategy is revealed on forms 20 and 30 regarding compensation to counsel, we cannot say the court abused its discretion in waiting to release them until the end of all sentencing hearings since the forms themselves require the attorneys to specify certain information, which could reveal strategy.⁽²⁶⁾

The district court's order that the vouchers should ultimately be released is also consistent with the two recent amendments to the CJA, which require that the amounts expended for counsel and other services under the CJA be disclosed. See supra note 21. The most recent amendment provides that the amount paid to counsel is to be divided into twelve categories, which roughly match the categories presently on CJA forms 20 and 30, to be released pursuant to the court's order. Therefore, all of the vouchers may properly be disclosed, without the backup documentation, at the end of the last Defendant's sentencing hearing, in accordance with the district court's order. And as the district court has made clear, its order has not foreclosed the Defendants from seeking a protective order with regards to sensitive information that may be contained on the vouchers themselves. See Supplemental R. Vol. I, Tab 2073 at 6 n.2 (district court order granting in part defendants' motion to stay pending appeal).

Finally, even if we were to assume that a qualified First Amendment right applied to the vouchers as the Second Circuit held in Suarez, 880 F.2d at 631, the interests we have already identified, and that the district court balanced, lead us to agree with the district court's narrowly tailored conclusion that the vouchers should remain sealed until all Defendants are sentenced, except for the total amount paid to the attorney and the total amount spent overall, which will be released at the conclusion of each Defendant's sentencing hearing.

We GRANT a writ of mandamus on the cross-appeals and DENY a writ of mandamus on the appeal. We VACATE that portion of the district court's order which releases the backup documentation, motions, orders, and hearing transcripts. That portion of the district court's order which releases CJA forms 20, 21, 30, and 31, without accompanying backup documentation, at the conclusion of the last Defendant's sentencing hearing, unless interests favor keeping the forms sealed until after any direct appeals, shall remain in force. In addition, that portion of the district court's order releasing, upon completion of each Defendant's sentencing, the total amount paid to that Defendant's attorney and the total amount spent overall for that Defendant shall remain in force.

All outstanding motions are DENIED.

Attachments not available electronically.

Nos. 97-2064, 97-2095, 97-2101, United States v. Gonzales

BRISCOE, Circuit Judge, concurring and dissenting:

I agree there is no First Amendment right of access to CJA documents because they are administrative in nature,⁽¹⁾ and that any common law right of access was preempted by the CJA. I also agree that under the CJA and rules promulgated under it, the district court should not have ordered that the backup documentation, motions, orders, and hearing transcripts be unsealed at the conclusion of all defendants' sentencing hearings.⁽²⁾ However, I do not agree that the district court could properly keep the CJA forms and the amounts paid for counsel and other services sealed until the conclusion of each defendant's trial.

The version of § 5.01 of the guide to Judiciary Policies and Practices in effect when this case commenced governs "Procedures for the Release of Information Pertaining to Criminal Justice Act Activities," and provides:

Generally, such information which is not otherwise routinely available to the public should be made available unless it is classified pursuant to an executive order or its release might adversely affect the national defense or foreign policy interest of the United States, unduly intrude upon the privacy of attorneys or defendants or compromise defense strategies, investigative procedures, attorney work product, the attorney-client relationship or privileged information provided by the defendant or other sources (see 5 U.S.C. § 552(b)).

Upon request, or upon the court's own motion, documents pertaining to Criminal Justice Act activities maintained in the clerk's open files, which are generally available to the public, may be judicially placed under seal or otherwise safeguarded until after all judicial proceedings in the case are completed and for such time thereafter as the court deems appropriate. Interested parties should be notified of any modification of such an order.

Under § 5.01, CJA information is presumptively available unless the court concludes it should be sealed to avoid undue intrusion upon the privacy of attorneys or defendants, compromise defense strategies, investigative procedures, attorney work product, the attorney-client relationship, or privileged information. CJA voucher forms for attorney services specify the hours claimed for generic categories of services: interviews and conferences, obtaining and reviewing records, legal research and brief writing, travel time, and investigative and other work. I do not see how disclosure of this basic information during trial could intrude upon privacy or compromise defense strategies, investigative procedures, attorney work product, the attorney-client relationship, or privileged information. See United States v. Suarez, 880 F.2d 626, 631-32 (2d Cir. 1989). The categories of work delineated on the CJA voucher form are commonplace to all criminal defense work. To reveal that defense counsel had worked for a certain number of hours interviewing witnesses, obtaining records, researching, writing briefs, traveling, and investigating would only confirm what anyone familiar with criminal defense work would expect.

Disclosure of the fees and the number of hours expended would not be so shocking to the public that defense counsel would be castigated to such a degree that the ability to defend their clients would be impaired. While disclosure of fees during the proceedings might fuel controversy, this litigation shows that keeping fee information sealed has in fact caused controversy. The public might be outraged at the amount of fees paid for the legal defense of persons charged with crimes, but might be equally outraged at being denied access to that information. "People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing." Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 13 (1986). Because there is no reason to deny access to this basic information, it is an abuse of discretion to keep it under seal during trial.

Disclosure of unredacted CJA voucher forms for expert and other services during trial could compromise defense strategies by revealing the types of experts consulted and their names. However, the forms could easily be redacted by deletion of the types and descriptions of services requested, the names of experts, and any other identifying information. See Suarez, 880 F.2d at 631-32. There is no reason to keep the amounts paid for expert and other services sealed during trial.

I would grant the Journal's petition for writ of mandamus in part and vacate that portion of the district court's order keeping CJA voucher form cover sheets sealed during trial.

^1.Because "mandamus is the proper vehicle for reviewing court orders sealing or redacting court documents in criminal proceedings," United States v. McVeigh, 119 F.3d 806, 810 (10th Cir. 1997) (per curiam), cert. denied, 118 S. Ct. 1110 (1998) ("McVeigh II"), we treat the appeal and cross-appeals as petitions for writs of mandamus. Although there may be a strong argument in favor of reviewing the cross-appeals as appeals from a collateral order under Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949), we would reach the same result applying the applicable standards under either doctrine.

^2.One Defendant, Uriel Martinez, has not been apprehended.

^3.The rate of compensation for counsel is not to exceed the statutory maximum and may not exceed a total amount in each case unless the total maximum amount is waived by the district court upon approval by the chief judge of the circuit. See 18 U.S.C. § 3006A(d). In death penalty cases, the rate of compensation is not to exceed the statutory maximum, but there is no statutory limit on the total amount that may be paid. See 21 U.S.C. § 848(q)(10)(A).

^4.We have repeatedly emphasized that defendants must provide the district court with explicit detail showing why the requested services are "necessary" to an adequate defense and what the defendant expected to find by using the services. See, e.g., United States v. Kennedy, 64 F.3d 1465, 1470 (10th Cir. 1995); United States v. Mundt, 508 F.2d 904, 908 (10th Cir. 1974).

^5.The sealed record on appeal contains transcripts of interviews with numerous Defendants conducted by attorneys for several other Defendants. Our reading of the district court's order leads us to believe that these transcripts are not included in those "CJA-related documents, motions, orders, and transcripts" to be released after the last remaining defendant is sentenced. United States v. Gonzales, No. CR-95-538-MV, 1997 WL 155403, at *13 (D.N.M. Feb. 11, 1997).

^6.Because some of the Defendants had already been sentenced at the time of the district court's order, the court ordered the immediate release of the totals as to those defendants, and those amounts have already been made public. Since then, many other defendants have been sentenced, and those amounts have also been made public. Obviously, this case is moot as to that particular information.

^7.Although the Cooperating Defendants have interests peculiar to their specific situations, they join the arguments made in the Non-Cooperating Defendants' briefs. Answer Br. & Br. in Chief for Lara, et al. at 1-2. The distinct issue that the Cooperating Defendants raise--and that the Non-Cooperating Defendants agree with--is that information contained in the backup documentation may jeopardize the safety of individuals who have cooperated with the government, especially those who are now in the Witness Protection Program. Disclosure of this information will not only hurt those who have aided the government in this case, but it will also discourage future defendants, informants, and witnesses from cooperating with the government. Id. at 4-8.

^8.The United States Attorney's Office pays its attorneys and other staff from funds approved by the Attorney General, see 28 U.S.C. §§ 548-50, and investigative, expert and other services performed by the FBI and other governmental agencies are paid out of applicable agency budgets. Although the Department of Justice is subject to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, we have been directed to no authority thereunder that provides for the release of detailed case-by-case information, much less the minute detail sought in this particular case.

^9.See Theodore J. Lidz, "Summary of Defender Services Issues under the CJA," in II Federal Courts Study Committee Working Papers & Subcommittee Reports, part IVB at 9 (July 1, 1990) (hereinafter "Fed. Courts Study Committee"). Federal public defenders and their para-legals, investigators, and experts who represent indigent defendants are paid from that organization's budget, which is administered through the Administrative Office of the United States Courts, under the direction of the Judicial Conference of the United States, see 18 U.S.C. § 3006A(g)(2)(A); 28 U.S.C. § 605; AO Guide, chap. IV, §§ 4.02-.03, but is not subject to FOIA. See 5 U.S.C. § 552(f); AO Guide, chap. V, § 5.01.

^10.See Fed. Courts Study Committee at 6-7; Davis, 953 F.2d at 1498 n.21.

^11.We note that there is much support for the replacement of judges with an independent administrative board, which would handle the judiciary's present functions in administering the CJA. See generally Committee to Review the Criminal Justice Act, Judicial Conference of the United States, Final Report, 1993 WL 69540, at *35-39, 108 nn.oo-ww (Jan. 29, 1993).

^12.We also noted that "[a] number of circuits have concluded that the logic of Press-Enterprise II extends to at least some categories of court documents and records, such that the First Amendment balancing test there articulated should be applied before such qualifying documents and records can be sealed." McVeigh II, 119 F.3d at 811.

^13.The "experience and logic" analysis has not been without its critics. See generally Press-Enterprise II, 478 U.S. at 21-29 (Stevens, J., dissenting); Lillian R. BeVier, Like Mackerel in the Moonlight: Some Reflections on Richmond Newspapers, 10 Hofstra L. Rev. 311 (1982); Eugene Cerruti, "Dancing in the Courthouse": The First Amendment Right of Access Opens a New Round, 29 U. Rich. L. Rev. 237 (1995); Kimba M. Wood, Reexamining the Access Doctrine, 69 S. Cal. L. Rev. 1105 (1996).

^14.See Fed. Courts Study Committee at 1.

^15.The only other CJA-related case in which a First Amendment claim was made is United States v. Ellis, 90 F.3d 447 (11th Cir. 1996). There, the Eleventh Circuit affirmed the release of the transcript from a hearing to determine whether the defendant was eligible for an appointed attorney under the CJA. Id. at 449-50. The court did not address whether there was a tradition of access to that type of proceeding, but rather reasoned that because the press has a qualified First Amendment right to attend post-trial proceedings, it has a right to the transcript of the hearing at issue there. Id. at 450.

^16.Although the Criminal Justice Act of 1964 has been amended several times, this section was included in the original act. See Criminal Justice Act of 1964, Pub. L. No. 88-455. The legislative history of the Act indicates that this section provided for an ex parte proceeding to "prevent[] the possibility that an open hearing may cause a defendant to reveal his defense." H.R. Rep. No. 88-864 (1963), reprinted in 1964 U.S.C.C.A.N. 2990, 2990.

^17.The Administrative Office Guide was amended slightly after the CJA was amended in 1996 and 1997. The quoted sections are from the Guide as it appeared when the district court was considering the Albuquerque Journal's motion to unseal the CJA documents.

^18.In United States v. McVeigh, 106 F.3d 325 (10th Cir. 1997) (per curiam) ("McVeigh I"), we identified six structural interests used by the Supreme Court to determine that a constitutional right of access to criminal trials exists. These interests are identical to those identified by the Third Circuit as "societal interests" cited by the Supreme Court in Richmond Newspapers that are fostered by open court proceedings. See United States v. Simone, 14 F.3d 833, 839 (3rd Cir. 1994). They include: "informing the public discussion of government affairs, assuring the public perception of fairness, promoting the community-therapeutic effect of criminal justice proceedings, providing a public check on corrupt practices, intimidating potential perjurers, and generally enhancing the performance of all involved in the process." McVeigh I, 106 F.3d at 336. These factors are illustrative, not exclusive, and no one factor controls or predominates. We evaluate the circumstances in their entirety.

^19.We recognize that the courts are not in complete harmony on all of these judicial proceedings. See, e.g., In re Search Warrant for Secretarial Area Outside Office of Gunn, 855 F.2d 569, 572-75 (8th Cir. 1988) (holding qualified First Amendment right of access applies to search warrant affidavits, but interests weigh in favor of non-disclosure).

^20.The CJA has recently been amended so as to specifically address the issue of access to the vouchers and to specify the timing of that access. See infra note 21 and accompanying text. Therefore, any ruling here would be of limited import in any case because this statute is now in effect and makes constitutional analysis unnecessary. More to the point, it takes the issue here out of the "capable of repetition yet evading review" category. Any future argument by the Journal will necessarily begin with an analysis of the amended statute.

^21.The Judiciary Appropriations Act of 1998, Pub. L. No. 105-119, § 308, applies, pursuant to the Act, to cases filed on or after January 25, 1998. This amendment provides that compensation paid to counsel should be disclosed to the public upon approval by the court. Any detailed information on vouchers submitted prior to the end of trial is to be redacted, and in any case, the court must consider Fifth and Sixth Amendment rights, the attorney-client privilege, the work product privilege, safety of any person, and any other interest justice may require in deciding what portions of the vouchers to release. The amendment also provides that the compensation paid to counsel should be categorized essentially as it currently is on CJA form 20. See form 20, attached hereto; 18 U.S.C. § 3006A(d)(4).

Prior to the most recent amendment, the CJA was amended by the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, §§ 108, 903, which also amended 21 U.S.C. § 848(q) pertaining to death penalty representation, and applies to cases commencing on or after April 24, 1996. This amendment provides that "[t]he amounts paid" for representation by counsel and for other services "shall be made available to the public." 18 U.S.C. § 3006A(d)(4), (e)(4) (emphasis added). The subsequent amendment discussed above replaced this language as to counsel only.

Although the version of the CJA applicable to this case does not include either of these amendments, they are instructive in that they indicate a shift toward increased access to the amounts paid out under the CJA. However, they are equally informative in that they do not indicate a legislative desire to release the other CJA information which the Albuquerque Journal is seeking here. The legislative history of the amendments indicates that the change was intended to reach the amounts listed on the CJA vouchers, but not the backup documentation or other CJA-related documents. Senator Domenici, who introduced the language in the most recent amendment, discussed the backup documents and the great amount of detail that they contain. He then stated, "clearly if this information were subject to public disclosure the alleged criminal's sixth amendment rights might be compromised. My bill does not seek to make this sensitive information subject to public disclosure, but rather continues to leave it to the Judge to determine if and when it should be released." 143 Cong. Rec. S8069-70 (daily ed. July 24, 1997) (statement of Sen. Domenici). While we recognize that statements like this are not conclusive or binding, we find it informative that our independent review of the amendment is consistent with the drafter's view.

^22.The current version of the AO Guide, which is not applicable to this case, clarifies that "all judicial proceedings" includes appeals.

^23.We do not believe that § 5.01 changes the presumption in favor of sealing materials related to the ex parte process for obtaining services other than counsel as provided in the statute, 18 U.S.C. § 3006A(e) and the AO Guide, § 3.03.

^24.We also point out that potential disclosure of the information while the trial is still pending would encourage defense counsel to wait until the trial is over before submitting vouchers for compensation. In complicated cases such as death penalty prosecutions, where "[i]t is urged that the court permit interim payment of compensation," AO Guide, chap. VI, § 6.02(C), such a choice to be made by counsel is yet another disadvantage indigent defendants face.

^25.Disclosure of work product and privileged information would also give the government information as to the methods particular defense counsel use in combating prosecutions.

^26.There is no disagreement between us and the dissenting opinion on the proposition that there is a presumption of openness with respect to the cover sheets, at least as to counsel fees. See supra p. 47. This presumption has long been in the Guidelines and has been codified by amendments to the CJA effective January 25, 1998. See supra note 21. But the presumption is only the beginning of the analysis. Both the cited Guidelines and the amended statute contain a laundry list of items which can override the presumption. Overarching the presumption and these conditions is the proposition that the determination whether to disclose immediately or to defer disclosure, whether in redacted or unredacted form, is a matter of discretion for the trial judge. There are sound reasons for this, which are especially apparent in this case. The trial judge is in a position to evaluate at first hand the costs and benefits associated with disclosure or deferred disclosure. The case before us is particularly illustrative because of the number of defendants, the fact that some are testifying against others, the fact that the court has ordered the defendants to share certain information and otherwise work with one another, and, in general, the extraordinary size of these proceedings. This case presents a perfect example of the appellate court's responsibility to respect its standard of review in cases involving discretionary judgment calls by the district court. Obviously, if we were exercising a de novo standard of review, we might come to a different conclusion than did the trial judge. But our review is necessarily deferential, and we should be slow to second-guess the trial judge's prerogative in a matter this complex. It is this latter point where, we believe, the dissent misses the mark.

^1. However, I question the majority's alternative conclusion that, even if CJA documents are judicial rather than administrative in nature, there would be no First Amendment right of access to them. See United States v. Suarez, 880 F.2d 626 (2d Cir. 1989).

^2. I question whether they must remain sealed in perpetuity. At some point, after appellate and post-conviction review is over, the interests served by keeping the materials sealed may no longer justify denial of access.

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