FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. Richard G. Stearns, U.S. District Judge]
Jeffrey J. Pyle, with whom Prince Lobel Tye LLP was on brief,
Gregory Dubinsky, with whom Evan H. Stein and Holwell,
Shuster & Goldberg LLP were on brief, for Court-appointed
amicus curiae in support of affirmance.
Gewaily, New England First Amendment Coalition, Sigmund D.
Schutz, and Preti, Flaherty, Beliveau & Pachios, LLP, on
brief as amici curiae in support of appellant.
Barron and Selya, Circuit Judges, and Katzmann, Judge.
BARRON, Circuit Judge.
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.
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.
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.
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.
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.
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.
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. 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)."
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
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.
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.
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.
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))).
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).
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
"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.
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.
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 ...