Opposition Brief — Brown v. United States

No. 00-277

Jun the Supreme Court of the United States |

JAMES HARVEY BROWN, PETITIONER

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

SETH P. WAXMAN

Solicitor Greie ral

Counsel of Record

JAMES K. ROBINSON

Assistant Attorney General

LOUIS M. FISCHER

Attorney

Department of Justice

Washington, D.C. 20580-0001

(202) 514-2217

QUESTIONS PRESENTED

1. Whether petitioner’s claims that the district court

improperly prohibited him from making certain extra-

judicial statements about his criminal prosecution have

been rendered moot by his conviction and the lifting of

the district court’s order.

2. Whether the district court’s order prohibiting

petitioner from making certain extra-judicial state-

ments about his criminal prosecution violated the First

Amendment.

(I)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Bailey v. Systems Innovation Inc., 852 F.2d 93

soothes henner, OE EE eR EE 12, 13, 16

CBS vy. United States Dist. Cowrt, 729 F.2d 1174 (9th

ge gE ST ee TSO MCR Te 16,17

Chicago Council of Lawyers v. Bauer, 522 F.2d

242 (7th Cir. 1975), cert. denied, 427 U.S. 912

a Laat eiltstinisbcalansehidnihatsinibacadsbevinsissicns iendtosiachas. aan sce 10

City of Los Angeles v. Lyons, 461 U.S. 95 CEDEB) cecccesccses 8

Gentile v. State Bar, 501 U.S. 1030 CRILY wncsinstes 6, 10-11, 12

Morrissey, In re, 168 F.3d 134 (4th Cir.), cert.

Genied, 527 US. 1086 (1999) .......cccsscovesscareescoressessessosscces..... )

Levine v. United States Dist. Court, 764 F.2d 590 (9th

Cir. 1985), cert. denied, 476 U.S. 1158 CABBB) csccecccccsees 11,17

Nebraska Press Ass'n vy. Stuart, 427 U.S. 539

Us IITIE: selieinttssherictersptenhesaspencsnsessiniaenonnoronihanascanaasanassrsaseasesecces, 8,11

Press-Enter. Co. v. Superior Cowt, 478 US. 1

Sp NN AU UiitbAd chashscsiehsbibdesebibenempiteisiianinsnsniaiassstasesieseaccsensss.. &

Southern Pac. Terminal Co. vy. ICC, 219 US.

IT alll ceslihtaiiceaianessieiiapaaigtedshstaniameoianiaanesaness.c... 8

Uniied States v. Cutler, 58 F.3d 825 (2d Cir.

i LAE SES SATA 4)

United States v. Ford, 830 F.2d 596 (6th Cir.

(EES EEA ST AE De 11-12, 16

United States v. Salameh, 992 F.2d 445 (2d Cir.

NNUIN Sirah Sdelihlstalhsdelabadesehiabiinsiedeasenbshchasieststsiiac dees: sence. 15-16, 17

(IIT)

IV

Cases—Continued: Page

United States v. Tijerina, 412 F.2d 661 (10th Cir.),

cert. denied, 396 U.S. 990 (1969) g

SOR RR ORR E EEE RHEE EEE EE THEE EEE ER EOE SEES

Weinstein v. Bradford, 423 U.S. 147 (1975) oceeeeeeeees 8

Constitution and statutes:

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tw to

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Jn the Supreme Court of the Anited States

No. 00-277

JAMES HARVEY BROWN, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-28a)

is reported at 218 F.3d 415. The order of the court of

appeals denying petitioner’s petition for a writ of

mandamus (Pet. App. 29a-34a) is unreported. The

order of the district court (Pet. App. 35a-48a) is unre-

ported.

JURISDICTION

The judgment of the court of appeals was entered on

July 6, 2000. The petition for a writ of certiorari was

filed on August 21, 2000, and was placed on the Court’s

docket on that date. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

(1)

2

STATEMENT

Petitioner was indicted in the United States District

Court for the Eastern District of Louisiana on one

count of conspiring to commit mail fraud, wire fraud,

insurance fraud, and witness tampering, in violation of

18 U.S.C. 371, 86 counts of mail fraud, in violation of 18

U.S.C, 1341, three counts of wire fraud, in violation of

18 U.S.C. 1343, two counts of insurance fraud, in vio-

lation of 18 U.S.C. 1033(a) and (d), one count of tamper-

ing with a witness, in violation of 18 U.S.C. 1512(b)(8),

and 13 counts of making false statements to the FBI, in

violation of 18 U.S.C. 1001.' The district court issued a

pretrial order prohibiting the parties from making

certain extrajudicial statements. The court of appeals

affirmed. Pet. App. la-28a.

1. Petitioner was indicted on September 24, 1999.

On that day, the district court swa sponte issued an

order prohibiting the parties, lawyers, and witnesses

from making certain comments to the news media about

the trial. Pet. App. 50a-52a. The prohibited comments

were those that “could interfere with a fair trial or

prejudice any defendant, the government, or the

administration of justice and which is not a matter of

public record.” /d, at 5la. The order specified that

“[s]tatements or information intended to influence pub-

lic opinion regarding the merits of this case are specifi-

cally designated as information which could prejudice a

! Petitioner was indicted with co-defendants Edwin W.

Edwards and Ronald R. Weems. Three other defendants were

also named in the indictment, but all three pleaded guilty to felony

offenses.

3

party.” Ibid. The order further provided, however,

that it does not

prohibit any of the * * * parties from the following:

(1) Stating, without elaboration or any kind of

characterization whatsoever:

(a) the general nature of an allegation or

defense made in this case;

(b) information contained in the public

record of this case;

(c) scheduling information;

(d) any decision made or order issued by

the Court which is a matter of public record.

(2) Explaining, without any elaboration or any

kind of characterization whatsoever, the contents or

substance of any motion or step in the proceedings,

to the extent such motion or step is a matter of

public record in this case and any ruling made

thereon to the extent that such ruling is a matter of

public record.

Ibid.

On September 28, 1999, the district court temporarily

lifted the order to allow petitioner to campaign for

reelection to his position as Louisiana State Insurance

Commissioner. Pet. App. 3a. On October 7, 1999, after

one or more defendants released recordings of con-

versations relevant to the prosecution, the district

court prohibited the parties from releasing recordings

of conversations before trial. /d. at 58a-55a. The next

week, the district court explained that it had entered

that order “to stop an avalanche of both government

4

and defendants picking out tapes and start playing all

these tapes on radio and television.” See id. at 4a. The

court asked the parties to suggest modifications to the

order, but no one did so. Jbid.

On November 17, 1999, the district court reimposed

the original restrictions on extrajudicial comments,

effective when the polls closed on November 20. Pet.

App. 49a. When petitioner objected, the district court

said that it believed that the order was necessary in

light of the considerable publicity surrounding the trial,

but the court emphasized its willingness to modify the

order. See id. at 4a. Petitioner moved to vacate the

order, and, following a hearing on January 4, 2000, the

district court asked the parties to submit proposed

modifications to the order. Jbid. Petitioner did not

suggest any ways in which the scope of the prohibited

comments could be made narrower, but urged that the

order be applied only to counsel, not to defendants or

witnesses. [bid.

The next month, the district court issued an opinion

denying petitioner’s request to limit the order to

lawyers. Pet. App. 35a-48a. In its opinion, the court:

noted that there was some disagreement in the lower

courts on whether an order limiting the speech of trial

participants had to meet a “‘clear and present danger’

standard,” or “whether a lower ‘reasonable likelihood of

prejudice’ standard should be applied.” Jd. at 40a. The

court did not resolve that issue because, “[e]ven under

the more strict ‘clear and present danger’ standard, the

facts of this case justify” the court’s order. Jd. at 41a.

The court explained that there was a substantial threat

of prejudice because of the “enormous press coverage

to date”; the case was “unique” because of its interrela-

tion with two other prosecutions involving many of the

same defendants that had also generated a large

5

amount of publicity; and “the parties in this case have

already demonstrated a desire to manipulate media

coverage to gain favorable attention.” Jd. at 42a-44a.

The court concluded that the order was narrowly

tailored to protect the fairness of the trial because it

prohibited only “statements on the merits of the case

designed to influence public opinion or prejudice a

party.” Jd. at 46a. It further concluded that the order

could not be limited to trial counsel because “[l]like

attorneys, trial participants have access to potentially

inflammatory and prejudicial information.” Jd. at 48a.

2. Petitioner petitioned the court of appeals for a

writ of mandamus to vacate the district court’s order

restricting extrajudicial comments by trial participants.

The court of appeals denied the petition, on the ground

that petitioner’s appeal of the order had been expedited

and that “the requisite clear and indisputable abuse of

discretion [by the district court] is not present.” Pet.

App. 30a.

3. The court of appeals affirmed the district court’s

denial of petitioner’s motion to modify or vacate the

order. Pet. App. la-28a. After determining that it had

jurisdiction to consider petitioner’s appeal under the

collateral order doctrine, id. at 5a-10a, the court of

appeals rejected petitioner’s claim that the order

violated his First Amendment rights. The court stated

that, “[wJhile this case presents a somewhat close call,

we conclude that the gag order is constitutionally per-

missible because it is based on a reasonably found

substantial likelihood that comments from the lawyers

and parties might well taint the jury pool, either in the

present case or one of the two related cases, is the least

restrictive corrective measure available to ensure a fair

trial, and is sufficiently narrowly drawn.” Id. at lla.

The court of appeals observed that the “district court

6

applied the correct legal principles in entering such an

order|,| and its factual conclusions are adequately sup-

ported by the record.” Jbid.

Because the district court’s order was directed at

trial participants rather than the press, the court of

appeals held that it was unnecessary to show a “clear

and present danger” to a fair trial in order to justify the

order. Pet. App. 14a-19a. The court relied (¢d. at 19a)

on Gentile v. State Bar, 501 U.S. 10380, 1076 (1991), and

determined that a district court may “impose an appro-

priate gag order on parties and/or their lawyers if it

determines that extrajudicial commentary by those

individuals would present a ‘substantial likelihood’ of

prejudicing the court’s ability to conduct a fair trial.”

Pet. App. 19a. The court of appeals held that the dis-

trict court correctly limited the rights of petitioner, as

well as his attorneys, to make public statements

because “[t]he mischief that might have been visited

upon the three related trials—primarily, jury tainting

—would have been the same whether prejudicial

comments had been uttered by the parties or their

lawyers.” Jd. at 20a.

The court of appeals also concluded that the district

court had identified a “substantial likelihood” that trial

participants’ extrajudicial comments would prejudice

the court’s ability to conduct a fair trial in petitioner’s

case and two related trials. Pet. App. 2la. The court of

appeals pointed out that, before the district court

entered its order, petitioner’s case and two related

cases “had attracted intense and extensive media

attention.” Jd. at 22a. The court of appeals concluded

that the district court was rightly concerned that the

parties’ unrestricted statements would increase the

level of pretrial publicity and would taint the jury

panels in related trials as well as the jury pool from

7

which petitioner’s own jury would be drawn. Ibid.

Based on the actions of the parties when the restriction

on extrajudicial comments was temporarily lifted, the

court below also determined that the district court had

reasonably determined that the parties were “prepared

to ‘try this case in the press’ and would attempt to use

the media to influence the potential jury pool and create

a prejudicial media atmosphere, if permitted.” Jd. at

23a.

The court of appeals further found that the restric-

tion on extrajudicial comment was sufficiently narrow,

that it still allowed the parties to comment on matters

in the case, and that the order provided sufficient

guidance as to what was prohibited. Pet. App. 23a-25a.

Finally, the court of appeals determined that the

district court’s order employed the least restrictive

means to achieve the necessary end of protecting the

trials of petitioner and the related trials. Jd. at 25a-28a.

4. On October 11, 2000, petitioner was convicted on

seven counts of making false statements to an FBI

agent, in violation of 18 U.S.C. 1001. The jury acquitted

him on all other counts, and the jury also acquitted his

co-defendants on all counts. The district court lifted its

order restricting extrajudicial comment after the jury’s

verdict.

ARGUMENT

1. Petitioner contends (Pet. 14-30) that the decision

below improperly permitted a prior restraint on his

First Amendment rights. Petitioner’s arguments have

been rendered moot by the completion of his trial and

the district court’s elimination of the order restricting

extrajudicial comment. Because that order is no longer

in place, and because that order had no collateral

consequences that could be remedied by a decision by

8

this Court, there is no longer a live controversy

regarding the propriety of that order.

This Court has recognized that the exception to the

mootness doctrine for cases that are “capable of repeti-

tion, yet evading review,” Southern Pac. Terminal Co.

v. 1CC, 219 U.S. 498, 515 (1911), may apply to cases

involving restrictions on the press. See, e.g., Nebraska

Press Ass’n v. Stuart, 427 U.S. 539, 546 (1976); see also

Press-Enter. Co. v. Superior Court, 478 U.S. 1, 6 (1986).

The “capable of repetition” doctrine, however, is limited

to cases in which “(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.” Weinstein v.

Bradford, 423 U.S. 147, 149 (1975) (per curiam). This

case does not satisfy those requirements, because there

is no likelihood that the same kind of restriction on

extrajudicial comments will again be imposed on

petitioner. Cf. City of Los Angeles v. Lyons, 461 U.S.

95, 105 (1983).

Petitioner was a defendant in a criminal case, not a

member of the press whose access to court proceedings

had been restricted. Only if petitioner’s convictions are

reversed on appeal would the possibility of a renewed

restriction on extrajudicial comments arise at a second

trial. Nebraska Press Ass’n v. Stuart, 427 U.S. at 546.

If petitioner’s convictions are affirmed, he will not be

retried and there would be no occasion for a renewed

restriction on extrajudicial comments. Moreover, even

if his convictions are reversed, a retrial would involve a

very limited factual setting because his convictions

involve only seven Section 1001 counts, a retrial would

involve no co-defendants (and, in particular, it would

not involve former Governor Edwards) because all

9

were acquitted, and a retrial would not pose the serious

problems faced by the district court below of managing

three inter-related multi-defendant criminal trials in

which there was very great press interest. In addition,

because the evidence and arguments of petitioner and

the government in this case are now a matter of public

record, there would likely be no need in the event of a

retrial for a similar order limiting extrajudicial com-

ments. In short, even should petitioner’s convictions be

reversed, there would likely be no need for a similar

restriction on extrajudicial comments. Consequently,

this case is not saved from mootness under the “capable

of repetition” doctrine.

2. Even if this case were not moot, further review

would be unwarranted.

a. The court of appeals held that “a district court

may * * * impose an appropriate gag order on parties

and/or their lawyers if it determines that extrajudicial

commentary by those individuals would present a

‘substantial likelihood’ of prejudicing the court’s ability

to conduct a fair trial.” Pet. App. 19a. See also id. at

20a (not reaching the question “whether a trial court

may also impose a similar gag order based on a ‘rea-

sonable likelihood’ of prejudice”). Petitioner asserts

(Pet. 14) that “the courts of appeals are sharply divided

on the showing necessary to impose restrictions on the

extrajudicial speech of criminal defendants and wit-

nesses.” Petitioner concedes (Pet. 14-15) that the stan-

dard applied by the court of appeals is consistent with

decisions of the Second, Fourth, and Tenth Circuits.

See, e.g., In re Morrissey, 168 F.3d 134, 138 (4th Cir.),

cert. denied, 527 U.S. 1036 (1999); United States v.

Cutler, 58 F.3d 825 (2d Cir. 1995); United States v.

Tijerina, 412 F.2d 661 (10th Cir.), cert. denied, 396 U.S.

990 (1969). He argues (Pet. 15-19), however, that it is

10

inconsistent with “more stringent tests, requiring

either a showing of ‘clear and present danger’ or ‘seri-

ous and imminent threat’ of prejudicing a fair trial” that

are applied in the Third, Sixth, Seventh, and Ninth

Circuits. Pet. 15 (quoting Pet. App. 18a). None of the

cases on which he relies was decided since this Court’s

decision in Gentile and his claim of a conflict does not

warrant review.”

(i) Petitioner cites (Pet. 17) the Seventh Circuit’s

decision in Chicago Council of Lawyers v. Bauer, 522

F.2d 242, 249 (1975), cert. denied, 427 U.S. 912 (1976). In

that case, the Seventh Circuit held that a local court

rule violated the First Amendment by prohibiting

attorneys from making extrajudicial statements “if

there is a reasonable likelihood that such dissemination

will interfere with a fair trial or otherwise prejudice the

due administration of justice.” 522 F.2d at 249. The

Seventh Circuit held that “[o]nly those comments that

pose a ‘serious and imminent threat’ of interference

with the fair administration of justice can be consti-

tutionally proscribed.” Jbid.

In Gentile, sixteen years later, this Court noted that

some jurisdictions had adopted the “serious and

imminent threat” standard, see 501 U.S. at 1068 n.3,

and it characterized that standard as one that “arguably

approximate[s] ‘clear and present danger.’” Jd. at 1068.

The Court then rejected the argument that extrajudi-

cial comments may be regulated only if they satisfy that

“clear and present danger” test, holding that “the

~ In addition, it is not clear that adoption of a higher, “clear and

present danger” standard would be of assistance to petitioner. The

district court explicitly concluded that “[e]ven under the more

strict ‘clear and present danger’ standard, the facts of this case

justify” the court’s order. Pet. App. 41a.

1]

speech of lawyers representing clients in pending cases

may be regulated under a less demanding standard.”

Id. at 1074. Because Gentile explicitly rendered the

holding in Bauer obsolete, the Seventh Circuit has not

cited Bauer for the proposition that a “reasonable likel-

hood” standard is unconstitutional since this Court

decided Gentile. There is accordingly no present con-

flict between the decision below and any decision of the

Seventh Circuit.”

(ii) Petitioner argues (Pet. 15-16) that the decision

of the court of appeals conflicts with the Sixth Circuit’s

decision in United States v. Ford, 830 F.2d 596 (1987).

In Ford, the Sixth Circuit reversed a district court’s

order severely restricting the extrajudicial speech of a

criminal defendant who was a sitting congressman. The

restriction was exceptionally broad, prohibiting the

congressman from any extrajudicial discussion of the

case, with exceptions for a bare denial of guilt and for

statements on the floor of the House or in committee.

Id. at 597. In analyzing the case, the court of appeals

held that the district court’s order could be affirmed

only if the forbidden statements would present a “clear

and present danger.” /d. at 600.

As petitioner notes, the Sixth Circuit applied the

“clear and present danger” standard because that is the

standard that this Court applied to restraints on the

press in Nebraska Press Ass’n v. Stuart, 427 U.S. 539

(1976), and the court “s[aw] no legitimate reasons for a

lower threshold standard for individuals, including

* For the same reason, the Ninth Circuit’s decision in Levine v.

United States District Court, 764 F.2d 590, 595 (1985), cert. denied,

476 U.S. 1158 (1986), that a restriction on extrajudicial comments

may be imposed on attorneys only on a showing of “a clear and

present danger or a serious and imminent threat” to the right toa

fair trial was also superseded by this Court's decision in Gentile.

12

defendants, seeking to express themselves outside of

court than for the press.” 8380 F.2d at 598. In Gentile,

however, this Court expressly rejected the application

of Nebraska Press to at least some trial participants,

holding squarely that “the speech of lawyers repre-

senting clients in pending cases may be regulated under

a less demanding standard than that established for

regulation of the press in Nebraska Press.” 501 U.S. at

1074. The Sixth Circuit has not had the opportunity to

decide whether its views in Ford survive this Court’s

decision in Gentile. Accordingly, it cannot be said that

the Sixth Circuit’s decision in Ford represents that

court’s current views or that the decision of the court of

appeals in this case conflicts with the Sixth Circuit’s

position.’

(iii) Petitioner also claims (Pet. 17) that the decision

of the court of appeals conflicts with the Third Circuit’s

decision in Bailey v. Systems Innovation, Inc., 852 F.2d

93 (1988). In Bailey, a trial court had entered an order

restraining civil litigants from making certain extra-

judicial statements that would likely be disseminated

by the press “if there is reasonable likelihood that such

dissemination will interfere with a fair trial.” /d. at 96.

' The uncertainty regarding the continued authority of Ford is

also reflected in the fact that two of the three judges on the panel

in that case wrote concurring opinions. Judge Krupansky wrote an

opinion in which he “concur[red] in [the court’s] conclusion that the

order issued by the trial court in the instant case is overbroad and

fails to satisfy the clear and present danger standard that has been

enunciated by this circuit.” 830 F.2d at 605. See also id. at 605

(concluding that he “concur[red] in the disposition of this case”).

Judge Nelson wrote an opinion in which he “concur{red] in the

judgment vacating the trial court’s order,” ‘bid., and in which he

did not discuss whether the trial court’s order was subject to the

“clear and present danger” test.

13

The Third Circuit held that the order violated the First

Amendment, finding that such restrictions were prohib-

ited “unless there is a clear threat to the seventh

amendment right” to a fair jury trial. 852 F.2d at 100.

In requiring a “clear threat” to the fair trial right, the

Third Circuit’s standard does not substantially differ

from the court of appeals’ determination in this case

that a restriction in this context is permissible if there

is a showing of a “‘substantial likelihood’ of prejudicing

the court’s ability to conduct a fair trial.” Pet. App. 19a.

Certainly the modest difference in verbal formulation is

insufficient to establish that the Third Circuit would

have decided this case differently. Indeed, the Fifth

Circuit’s standard, like that of the Third Circuit, would

likely not have been satisfied in Bailey, where the

Third Circuit found that the district court’s order was

not predicated on “such massive prejudicial publicity as

would threaten [the defendant’s] right to a fair trial.”

852 F.2d at 99. Similarly, both the Fifth Circuit’s stan-

dard and that of the Third Circuit would likely have

been satisfied in this case, in which the district court’s

restriction was premised on its well-supported finding

“that both the government and the defendants are

prepared to ‘try this case in the press’ and would

attempt to use the media to influence the potential jury

pool and create a prejudicial media atmosphere, if

permitted.” Pet. App. 23a.’

® Even if the Third Circuit's standard were equivalent to a

“clear and present danger” standard, there would still be no con-

flict with the decision below, for the same reasons discussed above

with respect to Ford. The Third Circuit in Bailey, like the Sixth

Circuit in Ford, relied to some extent on this Court’s decision in

Nebraska Press, see 852 F.2d at 99, although the Third Circuit did

not cite Nebraska Press specifically in connection with its “clear

threat” standard. Like the Sixth Circuit, the Third Circuit has not

14

(iv) Finally, the fact that none of the allegedly con-

flicting circuits has addressed the standard of review

issue since this Court’s decision in Gentile in 1991

suggests that petitioner is incorrect in asserting (Pet.

13) that there is an “increasing ‘trend towards gagging

trial participants’” that warrants this Court’s review.

Moreover, the paucity of recent case law on the subject

also suggests that any difference in verbal formulations

among the various circuits regarding the proper stan-

dard by which to assess restraints on trial participants’

speech has not in practice had a substantial effect on

the extent to which such restraints are imposed.

b. Petitioner also asserts (Pet. 24) that the decision

of the court of appeals conflicts with decisions of other

circuits regarding “whether courts must explicitly

consider less-restrictive alternatives before imposing

prior restraints” on trial participants. The court of

appeals stated that “[wJhile it is undoubtedly good

judicial practice for district courts to explicitly set forth

on the record their consideration of such matters, we do

not believe that this shortcoming requires us to vacate

the present order.” Pet. App. 26a. The court noted

that the district court had reached a “clearly implied

conclusion that the other measures * * * would be

inappropriate or insufficient to adequately address the

possible deleterious effects of enormous pretrial

publicity on this case and the two related cases” and

that “(t]he record sufficiently supports” that conclusion.

Id. at 27a. As the court explained, “[iJn light of the

parties’ and attorneys’-demonstrated enthusiasm for

had the opportunity since Bailey to address whether a “clear and

present danger” standard applicable to participants in the trial—

rather than members of the press—is appropriate after this

Court’s decision in Gentile.

a—x——aaoOoOEOC0eE

15

using the press to their utmost advantage, the district

court made a reasoned and reasonable decision to focus

its prophylactic attempt to avoid prejudicing the three

related trials on the trial participants.” Ibid.

In light of the court of appeals’ treatment of the

issue, including its stated preference for explicit find-

ings regarding the adequacy of alternatives and its

recognition of the district court’s “clearly implied con-

clusion” that those alternatives would be inadequate, it

can be expected that district courts in the Fifth Circuit

will in the future make the explicit findings sought by

petitioner. Accordingly, even if there were a conflict in

the circuits regarding the narrow question of whether

the district court must make such explicit findings, that

conflict would likely affect very few cases in the future,

and it would accordingly not be of sufficient continuing

importance to warrant this Court’s review.

In any event, the Fifth Circuit’s decision stands at

most for the proposition that a district court’s order

restricting extrajudicial comments will not be auto-

matically reversed merely because the district court

has not made explicit findings regarding alternatives.

None of the cases cited by petitioner establishes that

other circuits would treat a case like this under any

different rule. For example, in United States v.

Salameh, 992 F.2d 445 (2d Cir. 1993) (per curiam), the

trial court “orally and sua sponte, without notice or

opportunity for argument,” id. at 446, issued a very

broad order restricting attorneys in a criminal case

from making any statements that “have anything to do

with this case or that even may have something to do

with the case,” id. at 447 (internal quotation marks

omitted; emphasis added by court of appeals). The

court of appeals reversed the order, noting that “[t]he -

court did not make a finding that alternatives to this

16

blanket prohibition would be inadequate to protect

defendants’ rights to a fair trial before an impartial

jury,” that “[t]here is no indication in the record that

the court explored any alternatives or at all considered

imposing any less broad proscription,” and that “indeed

the court discouraged counsel from even proffering

possible alternatives.” Jbid. The court concluded that

“[t]he record does not support a conclusion that no

reasonable alternatives to a blanket prohibition exist,”

and it vacated the district court’s order. Ibid. There is

nothing in Salwmeh that suggests that the Second

Circuit would similarly reverse a district court order in

a case like this, in which the restriction is narrower, in

which the trial court reached a “clearly implied con-

clusion” that alternatives would be inadequate, and in

which “(t]he record sufficiently supports” that con-

clusion.

The other cases cited by petitioner similarly fail to

support the proposition that a district court’s failure to

make express findings regarding the adequacy of

alternatives is sufficient, alone, to require reversal of an

order limiting the extrajudicial comments of trial

participants. In each of the cases cited by petitioner

(Pet. 26-27), the court of appeals found that there were

substantive defects in the order under review, not

merely a failure to make express findings that were

implicit in the district court’s action. See Bailey, 852

F.2d at 99 (“[E]ven devoid of specific findings, the

record here convinces us that the first amendment is

violated by the district court’s order.”); United States v.

Ford, 830 F.2d at 600.° None of the cases establish that

6 The other case cited by petitioner, CBS v. United States

District Court, 729 F.2d 1174 (9th Cir. 1984), involved an injunction

against the broadcast of a tape by a television network, not a

17

the failure to make express findings is alone sufficient

to require reversal. wi

c. Finally, petitioner asserts (Pet. 28) that “the gag

order approved by the Fifth Circuit is unconstitu-

tionally overbroad.” Further review would not be

warranted to address the particular application of the

court of appeals’ legal standard to the facts of this case.

In any event, none of the cases cited by petitioner

suggests that the order in this case would have been

viewed as overbroad in any other circuit. Unlike most

of the cases cited by petitioner, which involved orders

that prohibited “any statements to members of the

news media,” Levine v. United States District Court,

764 F.2d 590, 598 (9th Cir. 1985), cert. denied, 476 U.S.

1158 (1986), or any statements that “have anything to

do with this case or that even may have something to

do with the case” Salameh, 992 F.2d at 447 (internal

quotation marks omitted; emphasis added by court of

appeals), the order in this case provided both a much

narrower prohibition of statements that “could inter-

fere with a fair trial or prejudice any defendant” and a

road map of the types of statements that the parties

limitation on the extrajudicial comments of trial participants. In

addition, the court of appeals in that case vacated the injunction on

the ground that it rejected “both the district court's contention

that dissemination of the tapes was likely to prejudice the

defendant's right to a fair trial and its contention that traditional

means of dealing with such prejudice—voir dire and jury instruc-

tions, for instance—were inadequate.” Jd. at 1183. Even with

respect to the adequacy of the alternatives, the court’s ultimate

conclusion was that “a showing has not been made that ‘there is

absolutely no method . . . to remove the taint upon the minds of

potential jurors’ which could possibly result from release of the

government tapes.’” Jbid. In this case, by contrast, the court of

appeals noted that the “[t]he record sufficiently supports” the con-

clusion that the available alternatives were inadequate.

18

could make, including statements giving “the general

nature of an allegation or defense,” “information con-

tained in the public record,” and “the contents or

substance of any motion or step in the proceedings, to

the extent such motion or step is a matter of public

record.” Pet. App. 5la. Moreover, as the court of

appeals explained, petitioner’s “complaints that the

order is overbroad or too vague are weakened by the

fact that he did not take the district court up on its

invitation to submit suggested modifications of the

order,” but instead merely “insisted that he be com-

pletely exempt from any restrictions on extrajudicial

comments.” /d. at 25a. The court of appeals correctly

held that “[ilf [petitioner] had been so concerned about

the scope of the order, he should have communicated

those concerns to the district court as he was given

ample opportunity, and indeed invited, to do.” [bid.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

JAMES K. ROBINSON

Assistant Attorney General

LOUIS M. FISCHER

Attorney

DECEMBER 2000