Appeal from the United States District Court for the Eastern District of Pennsylvania. (D.C. Crim. No. 77-412-1).
Seitz, Chief Judge, Gibbons and Garth, Circuit Judges.
Several news gathering organizations and two individual reporters ("intervenors") appeal an order of the district court excluding the public from a pretrial suppression hearing and sealing the record of that hearing.*fn1
On September 23, 1977, a federal grand jury indicted Henry J. Cianfrani ("defendant") for crimes arising out of his alleged misuse of public office. At the time of the indictment, defendant was a powerful and prominent politician in Philadelphia. A former member of the state house of representatives, he had served for the past eleven years as a member of the state senate and at the time of his indictment was chairman of the senate appropriations committee.
The defendant was indicted on 110 counts charging four substantive crimes. The bulk of the counts charged him with mail fraud, 18 U.S.C. § 1341, and racketeering, 18 U.S.C. §§ 1961, 1962(c), 1963, in connection with two illegal schemes related to his official positions. The indictment alleged that in one scheme the defendant had placed friends on the payroll of the state legislature with the understanding that those friends would not be required to perform any work. The second alleged scheme charged the defendant with accepting bribes in return for exerting his influence with state-funded graduate and professional schools in order to obtain the admission of certain individuals to those schools.
The grand jury also charged the defendant with income tax evasion in violation of 26 U.S.C. § 7201, and with obstruction of justice in violation of 18 U.S.C. § 1503.
Defendant pleaded not guilty to all the charges when he was arraigned. The district court then set a trial date and established a timetable for the filing of pretrial motions and briefs. The court fixed November 15, 1977, for argument of any pretrial matters.
The government thereafter filed a Motion for the Use of Tape Recordings and Transcripts of Consensually Monitored Conversations. It brought this motion in an attempt to comply with this court's decision in United States v. Starks, 515 F.2d 112 (3d Cir. 1975), which requires that a party intending to offer recordings into evidence at trial"'produce clear and convincing evidence of authenticity and accuracy as a foundation for the admission of such recordings.'" Id. at 121, quoting United States v. Knohl, 379 F.2d 427, 440 (2d Cir.), cert. denied, 389 U.S. 973, 19 L. Ed. 2d 465, 88 S. Ct. 472 (1967). The court in Starks recommended that the party offering the recordings specifically be required to prove, as part of the required foundation, that the intercepted conversations were "'made voluntarily and in good faith, without any kind of inducement.'" United States v. Starks, 515 F.2d 112, 121 n.11 (3d Cir. 1975), quoting United States v. McKeever, 169 F. Supp. 426, 430 (S.D. N.Y. 1958).
The government's motion alleged that one Vera Domenico, a former girlfriend of the defendant, and one Philip Gagliardi, had agreed to allow the government to record conversations they had with the defendant, or with third persons about the defendant. The government sought to authenticate recordings of seven such conversations. Three were of face-to-face conversations, picked up by recorders activated by Domenico or Gagliardi. The remaining four recordings were of telephone conversations recorded by a device attached to Domenico's telephone.
The government stated that each of the seven recordings satisfied all of the requirements set forth in United States v. Starks, supra. It added, apparently by way of emphasis, that all of the recordings had been made with the consent of one of the parties involved.
The defendant answered that he was without sufficient information to agree with the government's allegations that the recordings could satisfy the Starks tests or that the recordings had been obtained with the valid consent of at least one party involved. The defendant accordingly requested the court to put the government to its proof on the issues raised in the Starks motion. The defendant's answer also moved to suppress the recordings on the ground that the tapes revealed entrapment as a matter of law.
The defendant also filed a Supplemental Motion to Dismiss in the Nature of a Motion to Suppress. Insofar as that motion concerned the tapes that were the subject of the government's Starks motion, it alleged that the tapes had been obtained through coercion. The motion also alleged that the tapes violated the speech or debate clause of the Constitution in that they revealed information privileged under that clause.
Even before the filing of these motions and answers, the defendant by letter to the court had requested that any proceedings concerning the intercepted communications at issue in the case be held in camera and that the resultant record be sealed. In addition, one of the individual reporters involved in this appeal asked that the court hear her through counsel before deciding to close any proceedings to the press.
Accordingly, on November 14, 1977, the court notified those representatives of the press who happened to be in the courthouse in Philadelphia at the time that the defendant had moved to close the November 15, 1977, hearing and that the court would consider motions from the press to intervene for the purpose of opposing defendant's motion. Intervenors filed such motions that same day. The court granted leave to intervene and intervenors participated fully in argument held the next day on defendant's motion to close the suppression hearing.*fn2
The district court ruled on defendant's motion from the bench on November 16, 1977, supplementing that bench opinion with a written Memorandum on November 21, 1977. The court found that the first amendment required a presumption of access to all court proceedings, including the pretrial suppression hearing at issue in this case. The court went on to say that the defendant had not made the showing to overcome that presumption that the district court believed to be required by Nebraska Press Association v. Stuart, 427 U.S. 539, 49 L. Ed. 2d 683, 96 S. Ct. 2791 (1976): though the court conceded that there was a substantial likelihood that prejudicial information would reach potential jurors if the hearing were not closed, it could not say that such prejudice could not be overcome by alternatives to closure such as voir dire, change of venue, continuance, severance, peremptory challenge, and sequestration and admonition of the jury.
The district court went on to find, however, that Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq., the federal wiretapping statute, required the court to close the proceeding and to seal the resultant record. Relying on the strong congressional intent to protect the privacy of communications that it believed underlay the Act, as well as on the Act's specific provisions, the court held that Title III created a broad "privilege" against public disclosure of intercepted communications except at the full trial on the issue of the guilt or innocence of the defendant, and then only if there had been a previous determination that the communications had been lawfully intercepted.
Intervenors immediately appealed to this court. We granted an expedited appeal, though we refused summarily to reverse the order of the district court or to stay either the order or the hearing itself pending appeal. United States v. Cianfrani, Nos. 77-2445, 77-2462 (3d Cir., November 23, 1977). The district court proceeded with the Starks and suppression hearing with all members of the public excluded.
At this in camera proceeding, the government introduced first the testimony of two agents of the Federal Bureau of Investigation. They testified to the circumstances under which Vera Domenico gave them her consent to record some of the conversations at issue. They also told of the manner in which the recordings were made. Domenico herself then took the stand and testified about her agreement to cooperate with the government and the manner in which she assisted in making the tapes.
During Domenico's testimony the government sought to introduce into evidence the tape and accompanying transcript of one of the telephone conversations between Domenico and the defendant's associate, one Frank Gerace, recorded on June 9, 1977. The defendant attempted to forestall the playing of the tape by offering to stipulate that the tapes met all of the Starks requirements except that concerning consent, and then by arguing that it was not necessary to introduce into the record any portion of the tapes or transcripts in order to determine the issue of consent.
The court ruled that the government could not be prevented from introducing the tapes if the government believed it necessary to do so in order to meet its Starks burden or rebut the suppression motion of the defendant. The recording of the June 9, 1977, tape was then played, and the transcript of that same conversation was introduced into evidence. At that point, the defendant stipulated that the recordings had been made with the consent of one of the parties involved, and that the tapes thus met all the requirements of Starks. The defendant also withdrew his motion to suppress insofar as it alleged coercion in the obtaining of consent. The stipulation extended to all the tapes and transcripts that the government listed in its Starks motion, even though only the tape of the June 9, 1977, conversation was made part of the record of the hearing. The court then granted the government's Starks motion. The court also denied that part of the defendant's suppression motion alleging a violation of the speech or debate clause.
The district court then ordered the record of the secret proceeding to be sealed and impounded. On November 29, 1977, it issued a brief public memorandum and order outlining the events of the secret suppression hearing. The order granted the government's Starks motion and made it clear that the defendant had withdrawn his other allegations that the tapes had been obtained by coercion.
This court heard argument on intervenors' appeals on December 20, 1977.On December 30, 1977, the defendant pleaded guilty to all the counts except those charging income tax evasion, to which he pleaded nolo contendere. After the court questioned the defendant about the plea, the government read into the public record an extensive summary of the evidence it had intended to present at trial against the defendant. That reading included portions of the transcripts of the intercepted communications at issue in the in camera suppression hearing. The government also put into the record a lengthy appendix of documents it had intended to introduce at the trial, including the transcripts of all the recordings mentioned in the Starks motion.
During the plea hearing, the government thus placed on the public record the contents of all the tapes that the defendant sought to keep from public disclosure at the November 28 suppression hearing, including the June 9, 1977, transcript that was part of the record made at that suppression hearing. Consequently, part of the information contained in the sealed record of the suppression proceeding has been made public, though the majority of that record has not yet been revealed.
The district judge accepted the plea as tendered. On February 15, 1978, the court sentenced the defendant to five years inprison on the racketeering count, that sentence to run concurrently with a sentence of five years in prison on the mail fraud counts. The court suspended sentence on the obstruction of justice and tax evasion counts, but did impose concurrent terms of five years' probation for those crimes. The probation terms are consecutive to the prison terms.
JURISDICTION, STANDING, AND MOOTNESS.
This appeal presents three threshold questions: whether we have jurisdiction; whether the intervenor-appellants have the requisite standing; and whether this appeal is moot because of the termination of the underlying prosecution.
Intervenors assert that this court has jurisdiction over their appeal under 28 U.S.C. § 1291. That provision gives to the "courts of appeals... jurisdiction of appeals from all final decisions of the district courts of the United States." 28 U.S.C. § 1291.
We believe that the district court order closing the pretrial suppression hearing and sealing the record was a "final decision" as to intervenors, and thus appealable to this court within the "collateral order" doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 93 L. Ed. 1528, 69 S. Ct. 1221 (1949). "The order in the instant case constituted a final decision since it determined a matter independent of the issues to be resolved in the criminal proceeding itself, bound persons who were non-parties in the underlying criminal proceeding and had a substantial, continuing effect on important rights." United States v. Schiavo, 504 F.2d 1, 4 (3d Cir.) (in banc) (footnote omitted), cert. denied, 419 U.S. 1096, 95 S. Ct. 690, 42 L. Ed. 2d 688 (1974).
Intervenors believe they are proper parties to challenge the district court's order. Though the defendant has not raised the issue of standing in this court, he did question whether intervenors had such standing at the time the district court first made known its willingness to entertain motions to intervene. Whether defendant pressed the issue below, or whether the district court ever explicitly ruled on it, does not appear in the record.
In any event, we are obliged to consider whether the intervenors have standing. We conclude that they do.
Intervenors' allegations that the district court denied them access to the pretrial hearing, and continues to deny they access to the record of that proceeding, state the constitutionally required "'injury in fact,' that is, a sufficiently concrete interest in the outcome of their suit to make it a case or controversy subject to a federal court's Art. III jurisdiction." Singleton v. Wulff, 428 U.S. 106, 112, 49 L. Ed. 2d 826, 96 S. Ct. 2868 (1976).
The intervenors claim that the order of the district court barred them from attending the hearing, and prevents them from reading the record. They seek the aid of this court to remove the continuing effect of the district court's action, as well as to establish the illegality of such closure orders for the future. Such "specific, concrete facts demonstrate that the challenged practices harm [intervenors], and that [intervenors] personally would benefit in a tangible way from the court's intervention." Warth v. Seldin, 422 U.S. 490, 508, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975) (footnote omitted). Accord, Central South Carolina Chapter, Society of Professional Journalists, Sigma Delta Chi v. Martin, 556 F.2d 706, 707-08 (4th Cir. 1977), cert. denied, 434 U.S. 1022, 98 S. Ct. 749, 54 L. Ed. 2d 771 (1978).
We also believe intervenors to be "proper proponents of the particular legal rights on which they base their suit." Singleton v. Wulff, 428 U.S. 106, 112, 49 L. Ed. 2d 826, 96 S. Ct. 2868 (1976). They allege that the exclusion of the public by the district court was a violation of the public's and the press's first and sixth amendment rights both to have access to court proceedings and to receive and gather information about government activities. Intervenors' claims thus are "arguably within the zone of interests intended to be protected by the constitutional... provision on which" they rely. Id. at 123 n.2 (Powell, J., concurring in part and dissenting in part). Accord, United States v. Gurney, 558 F.2d 1202, 1206 (5th Cir. 1977). Intervenors thus satisfy those prudential standing requirements, beyond the "injury in fact" requirements of Art. III.
Nor do intervenors lack standing because they assert rights that may belong to a broad portion of the public at large. So long as the "injury in fact" alleged by each intervenor is "a distinct and palpable injury to himself," standing should not be denied "even if it is an injury shared by a large class of other possible litigants." Warth v. Seldin, 422 U.S. 490, 501, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1972). E.g., United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 683-90, 37 L. Ed. 2d 254, 93 S. Ct. 2405 (1973). We believe that intervenors have alleged injuries beyond generalized grievances, and that they state sufficiently such demonstrable, particularized injury to justify the assertion of jurisdiction by this court.
Ten days after the parties argued this appeal, the defendant pleaded either guilty or nolo contendere to all the charges against him, thus terminating the underlying criminal proceeding. He was sentenced on February 15, 1978. No further proceedings remain below. Moreover, at the guilty plea hearing the government made public a part of the information contained in the sealed record of the November 28 hearing.
The transcript of the Starks and suppression hearing remains sealed, however. It will remain so indefinitely by the terms of the court's order, since there will be no trial below. The information released by the government at the plea hearing was only a small portion of what is contained on the sealed record. The testimony of the two FBI agents and of Domenico on the issue of Domenico's consent to the interceptions, the colloquies between counsel and court, and the remarks and specific rulings of the presiding judge remain hidden from public view.
Under these circumstances, we believe the intervenors present us with a live controversy concerning the release of the sealed record. Should we reverse the order of the district court, our decision will have the immediate effect of requiring the court to open the record to the public. Should we affirm, we would continue the present effect of the order in force.
Insofar as the intervenors seek reversal of the original decision to close the hearing, we believe they present us with a controversy capable of repetition, yet evading review. Nebraska Press Association v. Stuart, 427 U.S. 539, 546-47, 49 L. Ed. 2d 683, 96 S. Ct. 2791 (1976).
In this case, we declined to grant the extraordinary remedies of summary reversal or a stay pending appeal. To have granted a stay of the order would have been the equivalent of a summary reversal, since it would have had the effect of requiring the hearing to be held in public. And we believed summary reversal to be unwise in light of the difficult and important questions involved, as well as in light of the severe and irreversible impact of a public hearing on defendant's rights. We also declined to stay the hearing itself out of concern that such action might have jeopardized the prosecution by possibly delaying the start of trial beyond the date mandated by the Speedy Trial Act, 18 U.S.C. § 3161, et seq.
Absent such extraordinary relief, review of a closure order similar to that issued in this case generally must come after the pretrial hearing is over, and often must come after the underlying criminal proceeding is over as well. To deny review because those underlying proceedings have come to an end would make it difficult for this court ever to review orders that are of great importance to fundamental rights, yet that are by their nature often of short duration. Thus, we believe that the order of the court closing the hearing and sealing the record is one capable of repetition in other cases, yet one that evades review in the specific instance.
We conclude that this portion of the case is not moot, United States v. Schiavo, 504 F.2d 1, 5 (3d Cir.) (in banc), cert. denied, 419 U.S. 1096, 95 S. Ct. 690, 42 L. Ed. 2d 688 (1974), and proceed to the merits of the dispute.
ACCESS to the PRETRIAL SUPPRESSION and STARKS HEARING.
The first question we must face concerns the nature and extent of the right of the public to have access to the pretrial suppression ...