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In re New York Times Co.

decided: September 14, 1987.

IN RE THE MATTER OF THE NEW YORK TIMES COMPANY, NEW YORK NEWS INC. AND THE ASSOCIATED PRESS, APPELLANTS; UNITED STATES OF AMERICA,
v.
MARIO BIAGGI AND MEADE ESPOSITO, DEFENDANTS-APPELLEES



Appeals by The New York Times Company, New York News Inc. and The Associated Press from two separate orders of the United States District Court for the Eastern District of New York, Jack B. Weinstein, Ch.J., denying their motions to make public certain motion papers filed under seal in connection with the criminal prosecution of Congressman Mario Biaggi and Meade Esposito. The motion papers were filed in connection with a pretrial motion to suppress evidence obtained by electronic surveillance pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq., and a pretrial motion pursuant to Rules 403 and 404 of the Federal Rules of Evidence to preclude the use at trial of a particular wiretapped conversation. Vacated and remanded.

Feinberg, Chief Judge, Pierce and Altimari, Circuit Judges.

Author: Feinberg

FEINBERG, Chief Judge

The New York Times Company, New York News Inc. and The Associated Press appeal from two separate orders of the United States District Court for the Eastern District of New York, Jack B. Weinstein, Ch.J., denying their motions to make public certain papers filed in connection with pretrial motions in the criminal prosecution of Mario Biaggi and Meade Esposito. The first order denied appellants' motion to make public certain papers filed under seal in connection with a defense motion to suppress evidence obtained by electronic surveillance pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq., upon a general finding that defendants' interests in a fair trial and the interests of third parties who are referred to in the motion papers justified continued sealing of the papers. The second order denied appellants' motion to make public certain papers filed under seal in connection with a defense motion to preclude the use at trial of a wire tapped conversation between Meade Esposito and an unindicted co-conspirator, upon an apparent finding that the interests of one or more third parties who are referred to in the wiretapped conversation supported continued sealing of the motion papers. For the reasons indicated below, we vacate the district court's orders and remand for proceedings consistent with this opinion.

This case involves the well-publicized criminal prosecution of Congressman Mario Biaggi and Meade Esposito, the former Chairman of the Executive Committee of the Kings County (Brooklyn) Democratic Committee, for alleged corrupt activities involving Coastal Dry Dock and Repair Corporation. The criminal trial is currently under way in the district court. A significant portion of the government's evidence stems from electronic surveillance of defendants and several unindicted co-conspirators conducted pursuant to Title III.

On June 5, 1987, defendants-appellees Biaggi and Esposito moved to suppress the evidence derived from Title III surveillance on the ground that no probable cause existed to warrant such surveillance. Defendants' motions papers and those of the government in opposition were filed under seal. The papers and the exhibits thereto contain, among other things, (1) the government's initial application and several supporting affidavits seeking authorization for electronic surveillance of Meade Esposito and several other named and unnamed persons; (2) the initial order granting that application; (3) references to, and excerpts from, conversations from a wiretap of an unindicted co-conspirator, authorized pursuant to a previous application under Title III, upon which the government relied to establish probable cause for the wiretap authorization at issue; and (4) references to, and excerpts from, intercepted conversations obtained pursuant to the initial order and extensions thereof.

On July 8, 1987, appellants moved to have these motion papers unsealed and to have any hearing on the suppression motion held in open court. Judge Weinstein held a hearing in open court on July 9, 1987 on appellants' motion, at which time the government stated that it did not object to disclosure. Defendants, however, did object, arguing that Title III required continued sealing of the motion papers unless appellants could show good cause why the papers should be unsealed. Defendants also argued that disclosure would prejudice their Sixth Amendment right to a fair trial, their privacy rights and the privacy rights of third parties.

On July 9, 1987, without a hearing on the suppression motion, Judge Weinstein in open court denied defendants' motion to suppress the wiretap evidence. The judge stated that the motion papers provided him with all the information he needed to determine that there was probable cause to support the wiretap orders. Therefore, according to the judge, it was not necessary to address appellants' request that any hearing on the suppression motion be held in open court. Judge Weinstein also ruled in open court that the papers filed in connection with the suppression motion should remain under seal to protect "the interest of the defendants in a fair trial and . . . the interest of third parties who are referred to in the tapes. . . ." The judge expressed concern that "unless documents of this kind can be sealed in the judgment of the court, it will make it next to impossible in many instances for defendants to make appropriate motions. They'll be chilled from making such motions." By order dated July 14, 1987, the judge directed that the motion papers remain sealed. Six days later, this court granted appellants' motion for an expedited appeal from that order.

On August 21, 1987 appellants again appeared before Judge Weinstein and moved for disclosure of certain papers filed under seal in connection with defendants' pretrial motion pursuant to Rules 403 and 404 of the Federal Rules of Evidence to preclude the use at trial of a January 8, 1986 wiretapped conversation between Meade Esposito and an unindicted co-conspirator. The judge held that at trial he would exclude evidence of that conversation, stating that it "describe[s] another political figure and possibly can be inferred to suggest that activities similar to ones now being charged took place with that political figure." Judge Weinstein also ruled that the motion papers should remain under seal, expressly stating that he was not resting his decision to continue the seal on potential prejudice in jury selection, but rather on privacy interests. Later, in open court on August 21, 1987, the government asked Judge Weinstein to reconsider his decision to exclude the January 8, 1986 conversation. In doing so, the government disclosed many details of the conversation, including the fact that the political figure described in the conversation was Executive Assistant to the Chairman of the Republican Party in Suffolk County and his name. Despite this disclosure, by order dated August 24, 1987, the district court directed that the papers at issue remain under seal. A few days later, appellants requested the district court to reconsider its order in light of public disclosure of the political figure named in the papers. This request was denied. Shortly thereafter, this court granted appellants' motion for an expedited appeal from the August 24, 1987 order as well, and the appeal was consolidated for oral argument purposes with appellants' appeal from the July 14, 1987 order.

Although none of the parties has challenged our jurisdiction to hear appeals from what appear to be two interlocutory orders, we must address the question of whether Judge Weinstein's orders are appealable. We believe the orders are appealable for two reasons. First, the collateral order doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 93 L. Ed. 1528, 69 S. Ct. 1221 (1949) applies to the appeals, since deferral of a ruling on appellants' claims until a final judgment in the underlying criminal prosecution is entered would effectively deny appellants much of the relief they seek, namely, prompt public disclosure of the motion papers. Cf. Westmoreland v. Columbia Broadcasting System, Inc., 752 F.2d 16, 19 (2d Cir. 1984), cert. denied, 472 U.S. 1017, 105 S. Ct. 3478, 87 L. Ed. 2d 614 (1985); In re Herald Co., 734 F.2d 93, 96 (2d Cir. 1984). Moreover, as we observed in In re National Broadcasting Co. (United States v. Myers), 635 F.2d 945, 949 n.2 (2d Cir. 1980), there is an even more basic reason why Judge Weinstein's orders are appealable now. Appellants' claims could have been treated by the district court as a new civil case, as opposed to an intervention in the pending criminal case, and the orders would have been final in that case. No jurisdictional significance should attach simply because the district court chose to treat appellants as intervenors in the criminal proceeding.

Turning to the merits, these appeals present two main questions: (1) whether the public's qualified First Amendment right of access to criminal trials extends to the pretrial motion papers filed here under seal, whether or not a hearing on the motion is held; and (2) to what extent, if any, must a court consider in determining whether public access is appropriate the fact that Title III material is contained within such motion papers.

The Supreme Court has indicated that a qualified First Amendment right of access to criminal proceedings extends to certain pretrial proceedings. See Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986) ("Press-Enterprise II") (qualified First Amendment right of access to criminal proceedings extends to preliminary hearings as conducted in California); Waller v. Georgia, 467 U.S. 39, 46, 81 L. Ed. 2d 31, 104 S. Ct. 2210 (1984) (defendant's Sixth Amendment right to an open trial prevented total closure of a suppression hearing, indicating that the First Amendment right would in most instances attach to such proceedings). Even prior to Press-Enterprise II and Waller, this Court had recognized that the First Amendment extends some degree of public access to a pretrial suppression hearing. In re Herald Co., 734 F.2d at 99. We there noted

It makes little sense to recognize a right of public access to criminal courts and then limit that right to the trial phase of a criminal proceeding, something that occurs in only a small fraction of criminal cases. There is a significant benefit to be gained from public observation of many aspects of a criminal proceeding, including pretrial suppression hearings that may have a decisive effect upon the outcome of a prosecution.

734 F.2d at 98. The same logic applies in extending a qualified First Amendment right of access to a pretrial hearing on a defense motion to preclude the use of certain evidence at trial pursuant to Rules 403 and 404 of the Federal Rules of Evidence. Public disclosure of such proceedings enhances the basic fairness of the judicial process and the appearance of fairness that is essential to public confidence in the system. Cf. Press-Enterprise II, 106 S. Ct. at 2740-41. With respect to a motion to suppress evidence obtained by the government, in particular "[t]here is a ...


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