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U.S. v. MARKIEWICZ

March 9, 1990

UNITED STATES OF AMERICA,
v.
DONALD MARKIEWICZ A/K/A DONALD MARKS, LINDA MARKIEWICZ A/K/A LINDA MARKS, LINDA HILL, NEIL "BUCK" THOMAS, IRENE THOMAS, OTATDODAH HOMER, WILLIAM BEGLEN, JOHN KANE, BRENDA KANE, MARTIN DOCKSTATER, EDWARD "TEDDY" DOCKSTATER A/K/A "TEDDY BEAR", JASON "JAKE" DOCKSTATER, LARRY CHRISJOHN, DEFENDANTS.



The opinion of the court was delivered by: Munson, District Judge.

MEMORANDUM-DECISION AND ORDER

Before the court is a motion to quash subpoenas served by the United States government on three newspaper reporters. The three reporters are Dale Seth, Lori Duffy and Jeffrey Bachman. Seth is employed by the Oneida Daily Dispatch; Duffy works for the Syracuse Post-Standard; and Bachman is a former reporter for the Post-Standard. The motion which they bring raises the complex issue of the extent of a reporter's qualified first amendment privilege.

BACKGROUND

The underlying case is criminal. It stems from an indictment which alleges criminal acts occurred on the Oneida Indian Territory (the "Territory") located in the City of Oneida, New York. The criminal allegations in the indictment include embezzlement and stealing, rioting, arson, assault, contempt and perjury. The centerpiece of the acts alleged is the burning down of a bingo hall on the Territory, which occurred on February 21, 1988.

The government has served subpoenas ad testificandum upon three newspaper reporters who reported on the Oneida Indian conflict as it unfolded. The reporters are subpoenaed because they reported statements made by several defendants in this case over a period of time from February 1, 1988 through March 12, 1989. The government, through Assistant U.S. Attorney John Brunetti, has stated that it merely seeks to have the reporters testify that the defendants made the statements reported in the newspapers.*fn1 The reporters seek to quash the subpoenas, asserting a qualified first amendment privilege.*fn2

Movants have acknowledged that the testimony which the government seeks is relevant. Reply Memorandum, Docket ("Doc.") No. 109, at 5. Even so, they have not expressly stated the respect in which they view the sought after testimony to be probative. The published statements which the government seeks to confirm are included in the indictment as overt acts in Count III. Count III charges 10 defendants with conspiring to travel in interstate commerce or to use a facility of interstate commerce with the intent to incite riot and commit an act of violence in furtherance of a riot in violation of 18 U.S.C. § 2101. Consequently, some of the focus of the submissions filed on the motion to quash has been on an interpretation of § 2101.

The instant motion was argued on the morning of March 1, 1990. In the interest of removing potential roadblocks on the eve of trial, the court issued a decision from the bench that afternoon. This Memorandum-Decision and Order is substantially similar to the bench decision delivered on March 1, 1990.

DISCUSSION

An appropriate place to commence discussion of the reporters' motion is with reference to the Supreme Court's seminal decision on the issue of reporters' testimonial privilege, Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1971). In Branzburg the Court determined that reporters could be forced to testify before criminal grand juries. Many lower court cases dealing with the issue of a reporter's privilege not to testify in civil and criminal cases of course have cited the Branzburg case. However, the variety of interpretations of Branzburg is astonishing. Thus, some courts state that Branzburg stands for the proposition that reporters enjoy no absolute immunity before a criminal grand jury. See, e.g., von Bulow by Auersperg v. von Bulow, 811 F.2d 136, 142 (2d Cir.), cert. denied, 481 U.S. 1015, 107 S.Ct. 1891, 95 L.Ed.2d 498 (1987); Continental Cablevision, Inc. v. Storer Broadcasting Co., 583 F. Supp. 427, 432 (E.D.Mo. 1984). At least one other court has paraphrased the holding of the Branzburg case in an affirmative manner which contrasts with the characterization in von Bulow and Continental Cablevision, but does not contradict that characterization. That court stated that Branzburg stands for the proposition that reporters do enjoy a qualified immunity before a criminal grand jury. See Pinkard v. Johnson, 118 F.R.D. 517, 520 (M.D.Ala. 1987). Yet a third breed conceives of Branzburg as indicating that reporters are not entitled to even a qualified immunity before a criminal grand jury. See, e.g., O'Neill v. Oakgrove Const., Inc., 71 N.Y.2d 521, 528, 528 N.Y.S.2d 1, 4, 523 N.E.2d 277, 280 (1988); Reporters Comm. for Freedom of the Press v. American Telephone & Telegraph Co., 593 F.2d 1030, 1062 n. 107 (D.C. Cir. 1978), cert. denied, 440 U.S. 949, 99 S.Ct. 1431, 59 L.Ed.2d 639 (1979).

The confusion seems natural in light of the fact that Branzburg is a five/four decision in which the fifth vote was cast by Justice Powell who not only joined in the majority's opinion but wrote a separate concurrence. On the one hand, the tack taken by the majority opinion is not receptive to a reporter's asserted privilege. See, e.g., 408 U.S. at 698, 92 S.Ct. at 2665 ("We are admonished that refusal to provide a First Amendment reporter's privilege will undermine the freedom of the press to collect and disseminate news. But this is not the lesson history teaches us."); Id. at 703-04, 92 S.Ct. at 2668 ("The administration of a constitutional newsman's privilege would present practical and conceptual difficulties of a high order."). On the other hand, the concurrence advocates a balancing test in determining whether a reporter should be accorded a privilege. Consequently, in at least one respect, Justice Powell agrees with the four dissenters, prompting a leading commentator to observe: "Despite the holding in Branzburg and the discouraging tone of the majority opinion, the lower federal courts have consistently read the case to support some kind of qualified privilege for reporters" because five Justices apparently believed "that the Constitution may at times protect the confidentiality of a journalist's sources." L. Tribe, American Constitutional Law, § 12-22, at 972 (2d ed. 1988).

This court, located as it is in the Second Circuit, is bound to follow the authority of that Court of Appeals. Thus, in an effort to clarify the confusion left in the wake of Branzburg the court has turned to Second Circuit precedent. The Circuit has supplied express statements which are helpful, yet not in an ultimate sense. First, and importantly, the Second Circuit has held that a reporter may invoke his or her qualified privilege in either a civil or criminal setting. United States v. Burke, 700 F.2d 70, 77 (2d Cir.), cert. denied, 464 U.S. 816, 104 S.Ct. 72, 78 L.Ed.2d 85 (1983). Further, the court, per Judge Kaufman, indicated in an earlier decision that a reporter's invocation of a privilege is not as likely to be successful in a criminal setting as it is in a civil setting. Baker v. F & F Investment, 470 F.2d 778, 784 (2d Cir. 1972), cert. denied, 411 U.S. 966, 93 S.Ct. 2147, 36 L.Ed.2d 686 (1973) (distinguishing Branzburg by stating "[n]o such criminal overtones color the facts of this civil case").

Questions, however, remain. In Burke the court reviewed the appeal of a criminal case in which the district court had refused to permit a criminal defendant to subpoena the work product, notes, etc., of a Sports Illustrated reporter. The Burke court upheld the lower court's decision in that regard because the information would have been used to impeach the credibility of a witness whose credibility already had been significantly impeached by other means at trial. In other words, the documents sought were cumulative. Curiously, and without explanation from Judge Meskill who wrote for the court in Burke, the lower court permitted the defendant to subpoena the reporter himself, and that reporter testified over his counsel's objection. Although the decision to permit the subpoenaing of the reporter was not appealed, the Burke decision leaves the specter that a reporter's privilege is more likely to be honored with respect to a subpoena duces tecum rather than a subpoena ad testificandum.

This court holds that a qualified first amendment privilege applies to the present situation. The extent of the privilege is governed by the circumstances. Branzburg, 408 U.S. at 710, 92 S.Ct. at 2671 (Powell, J., concurring); see discussion infra. Thus, on one end of a continuum, several courts have held that "[a] reporter's observations of a public place or event are no different than that of other individuals; and as to this, they are not entitled to constitutional protection." See, e.g., Alexander v. Chicago Park Dist., 548 F. Supp. 277 (N.D.Ill. 1982). Absent observations of public events, several factors diminish the weight to be accorded the qualified privilege claimed by a newspaper reporter. As already noted, the Second Circuit has held that the privilege is diminished when the trial before which the reporter is to testify is criminal. Baker, 470 F.2d at 784; Driscoll v. Morris, 111 F.R.D. 459, 461 n. 6 (D.Conn. 1986). Second, the privilege is diminished when the subpoenaing party does not seek testimony of a confidential nature. Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583, 597 (1st Cir. 1980); see also In re Petroleum Products Antitrust Litigation, 680 F.2d 5 (2d Cir. 1982) (per curiam), cert. denied, 459 U.S. 909, 103 S.Ct. 215, 74 L.Ed.2d 171 (1982). Third, as hinted previously, the privilege does not carry as much weight when the reporter himself is subpoenaed, as opposed to when a party seeks to compel the reporter to produce unpublished documents. Maughan v. NL Industries, 524 F. Supp. 93, 95 (D.D.C. 1981). Fourth, if the questions put to a reporter are narrowly limited, then subpoenaing a reporter is more acceptable. N.L.R.B. v. Mortensen, 701 F. Supp. 244, 250 (D.D.C. 1988). Concomitantly, certain questions will not interfere with a reporter's first amendment rights as much as other questions. Continental Cablevision, 583 F. Supp. at 435. One court has provided examples of questions which will not set off many first amendment alarms and bells. These are "whether [an article] was truly published on the date asserted and whether [the reporter] did in fact interview [the defendants] . . . before writing the article." Maughan, 524 F. Supp. at 95. In addition, at least one court has determined that a reporter's qualified privilege is waived if he or she submits to an interview or files an affidavit detailing the substance of the conversation with respect to which he is asked to testify. Pinkard, 118 F.R.D. at 523.

Finally, in examples not relevant to the instant case, courts have held that a reporter waives his or her privilege when that reporter sues another. Driscoll v. Morris, 111 F.R.D. 459 (D.Conn. 1986). In addition, a reporter's privilege is not given as much weight in a libel case against that reporter as in other civil cases. See, e.g., Herbert v. Lando, 441 U.S. 153, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979); Garland v. Torre, 259 F.2d 545 (2d Cir.), cert. denied, 358 U.S. 910, 79 S.Ct. 237, 3 L.Ed.2d 231 (1958). A similar recitation of factors which diminish the strength of a reporter's qualified privilege has prompted one district court to observe that ...


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