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United States v. Chin

United States Court of Appeals, First Circuit

January 18, 2019



          Jeffrey J. Pyle, with whom Prince Lobel Tye LLP was on brief, for appellant.

          Gregory Dubinsky, with whom Evan H. Stein and Holwell, Shuster & Goldberg LLP were on brief, for Court-appointed amicus curiae in support of affirmance.

          Nashwa Gewaily, New England First Amendment Coalition, Sigmund D. Schutz, and Preti, Flaherty, Beliveau & Pachios, LLP, on brief as amici curiae in support of appellant.

          Before Barron and Selya, Circuit Judges, and Katzmann, Judge. [*]

          BARRON, Circuit Judge.

         This case concerns an appeal by the Trustees of Boston University, as owners of WBUR, which is a public radio station in Boston, Massachusetts. We will refer to the appellant by the radio station's name, WBUR.

         The issue that we must decide arises from WBUR's motion in the fall of 2017 to intervene in a then still-ongoing criminal trial in the United States District Court for the District of Massachusetts. In that motion, WBUR also requested that the District Court unseal the names and addresses of the jurors in the criminal case and provide that information to WBUR "as soon as possible" after the announcement of the jury's verdict.

         The District Court granted the motion to intervene but otherwise denied in substantial part the motion to unseal the requested information. We now vacate and remand.


         WBUR filed this motion in the criminal case against New England Compounding Center ("NECC") supervisory pharmacist Glenn Chin. He had been charged with committing mail fraud and violating the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961-1968, based on, among other things, twenty-five predicate acts of second-degree murder, in connection with a nationwide distribution of contaminated medications that caused a fatal outbreak of fungal meningitis.

         Chin's trial began in federal district court in Boston on September 19, 2017. It ended a little more than a month later, on October 25, 2017, when the jury found Chin guilty of mail fraud and lesser predicate offenses under RICO but not guilty of the twenty-five predicate acts of second-degree murder.

         A week before the trial ended, on October 18, 2017, WBUR filed its motion both to intervene in the criminal case and to obtain "as soon as possible after the verdict is announced" the names and addresses of the then-deliberating jurors. On October 27, 2017 -- just two days after the jury had returned its verdict -- the District Court issued an order allowing intervention in the criminal case by WBUR but denying, without prejudice, its motion regarding the disclosure of juror names and addresses.

         The District Court stated in that order that it would "release" juror names and hometowns, but not addresses, and that it would do so only after Chin's sentencing, which was scheduled for January 30, 2018.[1] The District Court did note in its order, however, that it would "consider an earlier release of the juror list upon submission by [WBUR] of an appropriate protective order that is . . . crafted to insure against any unnecessary dissemination of the jurors' personal identification in the news media or over the internet (without the juror's express assent)."

         The District Court based this possible condition on release on a protective order requirement that Judge Young had imposed one week earlier in a similar ruling regarding WBUR's request for disclosure of juror names and addresses in another case in the District of Massachusetts: United States v. Wright, No. 15-cr-10153-WGY (D. Mass. Oct. 20, 2017), ECF No. 357. Judge Young withdrew the protective order requirement in Wright on November 3, 2017, however, after WBUR challenged that requirement on the grounds that it would be impractical and perhaps unconstitutional.

         A little less than two weeks later, on November 16, 2017, WBUR appealed from the District Court's order denying its request in Chin. The next day, the District Court issued an "Amended Order on Motion of [WBUR] to Unseal Juror Names and Addresses," which, just as Judge Young had done in Wright, withdrew the protective order requirement. In the amended order, the District Court reiterated that it would "release" a list of the Chin jurors' names and hometowns, but not addresses, and that it would do so only after sentencing.

         In accord with the initial order, on January 31, 2018, the day after the sentencing proceedings in Chin's case ended, the District Court issued an unsealed order containing a list of the jurors' names and their hometowns, but not their addresses. Because neither the government nor Chin opposes WBUR's motion on appeal, we ordered the appointment of amicus counsel ("Court-appointed amicus") to represent the position reflected in the District Court's order denying WBUR's motion in substantial part, a task that the amicus has ably performed.[2]


         We begin by addressing our jurisdiction to hear this appeal, which turns out to be a task that is not without its complexities. The most prominent jurisdictional question that we confront concerns the possibility that this appeal has been mooted by the District Court's granting of partial relief to WBUR and the fact that Chin's sentencing has already occurred. But, before we get to that jurisdictional question, we address two others, the first of which relates to the appellant's status as an intervenor.

         We stated in In re Globe Newspaper Co., 920 F.2d 88, 90 (1st Cir. 1990), that "the right of a non-party to intervene in a criminal proceeding is doubtful." But, we nonetheless concluded -- even without finding that the appellant there could intervene -- that we had jurisdiction over the appeal under the All Writs Act, 28 U.S.C. § 1651. See In re Providence Journal Co., Inc., 293 F.3d 1, 9 (1st Cir. 2002) (explaining that the All Writs Act gives "[a] federal court of appeals . . . the power to treat an attempted appeal from an unappealable (or possibly unappealable) order as a petition for a writ of mandamus" (quoting United States v. Horn, 29 F.3d 754, 769 (1st Cir. 1994))).

         Here, however, the District Court did grant WBUR's motion to intervene. And, because that "legal decision" to grant WBUR's motion remained "unchallenged in [this] appeal despite the existence of ample opportunity to [challenge it]," it is now "law of the case for future stages of the same litigation" and therefore "should continue to govern the same issues." United States v. Matthews, 643 F.3d 9, 12 (1st Cir. 2011) (citations omitted). Thus, as an intervenor, WBUR may appeal the District Court's order denying its request for the disclosure of juror names and addresses, which WBUR filed before sentencing and thus before the matter had concluded -- assuming, that is, the appeal is not moot. See United States v. Blagojevich, 612 F.3d 558, 560 (7th Cir. 2010) (applying the collateral order doctrine in finding jurisdiction over an appeal by an intervenor in a similar case).[3]

         The next jurisdictional wrinkle that we must iron out concerns the timing of the appeal relative to the issuance of the District Court's amended order in this case. Neither WBUR nor Court-appointed amicus makes anything of the fact that the District Court issued its amended order the day after WBUR filed its notice of appeal. But, the general rule is that "[t]he filing of a notice of appeal is an event of jurisdictional significance -- it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal." Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982).

         Nevertheless, "this circuit and others have recognized limited exceptions to this judge-made rule." United States v. Torres-Oliveras, 583 F.3d 37, 44 (1st Cir. 2009) (citing 16A Charles A. Wright, et al., Federal Practice and Procedure § 3949.1 (4th ed. 2009); United States v. Ortega, 859 F.2d 327, 334-35 (5th Cir. 1988)). And, arguably, the District Court's amended order here falls within one of the recognized exceptions because it does not "alter the substance of the decision" to release juror names and hometowns after sentencing. See Wright, et al. § 3949.1.

         In any event, we will treat the District Court's November 17, 2017 order as though it were an indicative ruling regarding the withdrawal of the protective order requirement. Cf. United States v. Maldonado-Rios, 790 F.3d 62, 65 (1st Cir. 2015) (per curiam) (treating a sentencing court's grant of a motion filed during the pendency of appeal as an indicative ruling under Federal Rule of Appellate Procedure 12.1). And, even if we consider on appeal only the District Court's October 27, 2017 order, our analysis of the merits is not affected. See Torres-Oliveras, 583 F.3d at 44.

         We come, then, to the main potential jurisdictional obstacle to our reaching the merits of this appeal. Court-appointed amicus contends that the appeal is moot in its entirety, and thus no longer a live case or controversy requiring resolution, because the District ...

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