## Facts

- Manuel Antonio Noriega was a federal pretrial detainee held at the Metropolitan Correctional Center in Dade County, Florida.
- The government recorded telephone calls between Noriega and his defense counsel while Noriega was in custody.
- CNN obtained the recordings from an undisclosed source and sought to broadcast them.
- The district court issued an oral, time-limited order temporarily barring broadcast until a specified time, and later entered written orders requiring CNN to produce the tapes for in camera inspection and prohibiting broadcast pending that review.
- CNN refused to produce the tapes and broadcast portions while seeking emergency relief in the court of appeals.
- CNN appealed the written orders and also sought mandamus/prohibition to stop contemplated contempt proceedings and to disqualify the district judge under 28 U.S.C. § 455.

## Issues

1. Whether an appeal lies from an oral district court order that was not entered on the docket.
2. Whether a district court may compel in camera production of recordings and temporarily bar broadcast to determine attorney–client privilege and protect a criminal defendant’s fair-trial rights, consistent with the First Amendment.
3. Whether mandamus/prohibition is warranted to block contempt proceedings or to require judicial disqualification under 28 U.S.C. § 455.

## Decision

- The court dismissed the appeal from the oral order for lack of appellate jurisdiction because the order was not docketed.
- The court declined to vacate the written orders requiring in camera submission of the tapes and temporarily prohibiting broadcast pending the privilege/fair-trial determination.
- The court denied mandamus/prohibition seeking to bar contempt proceedings and seeking disqualification of the district judge.

## Legal Principles

- An oral order not entered on the district court docket is not appealable under ordinary appellate jurisdiction rules.
- Attorney–client privilege applies only to communications intended to remain confidential and reasonably expected to be confidential under the circumstances; the custodial setting and any monitoring warnings are relevant to that expectation.
- A trial court may use in camera inspection to determine privilege and related fair-trial concerns without broadly disclosing the disputed material.
- Although prior restraints carry a heavy presumption against validity, a narrowly targeted, temporary restraint may be permissible to preserve the status quo while the court determines whether dissemination would cause irreparable harm to attorney–client privilege or the defendant’s Sixth Amendment right to a fair trial.
- Mandamus/prohibition requires a clear and indisputable right to relief and lack of adequate alternative remedies; contempt and recusal issues ordinarily can be reviewed through normal appellate channels absent exceptional circumstances.
- Disqualification under 28 U.S.C. § 455 requires a sufficient showing of bias or an appearance of impropriety; adverse rulings or case-management decisions alone do not establish disqualifying partiality.

## Conclusion

The Eleventh Circuit allowed the district court to require in camera production of allegedly privileged attorney–client recordings and to impose a brief broadcast prohibition pending that review, while rejecting jurisdiction over an undocketed oral order and denying extraordinary writ relief aimed at contempt proceedings and judicial recusal.


United States v. Noriega, 917 F.2d 1543 (11th Cir. 1990)