Abc, Inc. v. Stewart
| Decision Date | 18 February 2004 |
| Docket Number | No. 04-0220-cr.,04-0220-cr. |
| Citation | 360 F.3d 90 |
| Parties | ABC, INC., et al., Appellants, v. Martha STEWART, Peter Bacanovic, Defendants, United States of America, Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
DAVID A. SCHULZ (Cameron A. Stracher, Alia L. Smith, on the brief), Levine Sullivan Koch & Schultz, L.L.P., New York, N.Y., for Appellants.
(Henry S. Hoberman, New York, N.Y.), for Appellant ABC, Inc.
(Robert Feinberg, New York, N.Y.), for Appellant American Lawyer Media.
(David H. Tomlin, New York, N.Y.), for Appellant The Associated Press.
(Charles Glasser, New York, N.Y.), for Appellant Bloomberg, L.P.
(Anthony Bongiorno, New York, N.Y.), for Appellant CBS Broadcasting, Inc.
(David C. Vigilante, Stacey Wolf, Atlanta, Ga.), for Appellant Cable News Network, L.P., L.L.L.P.
(Dianne Brandi, New York, N.Y.), for Appellant Fox News Network, L.L.C.
(Muriel Reis, New York, N.Y.), for Appellant Fox Television Stations, Inc.
(Barbara W. Wall, McLean, Va.), for Appellant Gannett Co., Inc.
(Anne B. Carroll, New York, N.Y.), for Appellant Daily News, L.P.
(Stuart D. Karle, New York, N.Y.), for Appellant Dow Jones & Co., Inc.
(Maya Windholz, New York, N.Y.), for Appellant NBC, Inc. (Stephanie S. Abrutyn, New York, N.Y.), for Appellant Newsday, Inc.
(Jan F. Constantine, New York, N.Y.), for Appellant NYP Holdings, Inc.
(George Freeman, New York, N.Y.), for Appellant The New York Times Co., Inc.
(Thomas Kim, New York, N.Y.), for Appellant Reuters.
(Eric Lieberman, Washington, D.C.), for Appellant The Washington Post Co.
DEBORAH E. LANDIS, Assistant United States Attorney (Jacob W. Buchdahl, Laura Grossfield Birger, Gary Stein, Assistant United States Attorneys, on the brief), for David N. Kelley, United States Attorney for the Southern District of New York, New York, N.Y., for Appellee.
Before: KATZMANN, B.D. PARKER, Circuit Judges, and PRESKA, District Judge.*
This case calls upon us to balance two weighty constitutional rights: the First Amendment right of the press and of the public to access criminal proceedings and the Sixth Amendment right of criminal defendants to a fair trial. A conglomeration of news organizations and publications has appealed from an order of the United States District Court for the Southern District of New York (Cedarbaum, J.) barring the media from attending the voir dire examinations of prospective jurors held in the district judge's robing room but providing for the release of the transcripts of the voir dire examinations. We conclude that, under the circumstances presented here, the district court erred in closing the voir dire proceedings. We therefore vacate the portion of the district court's order denying the media contemporaneous access to the voir dire. We recognize that, because voir dire has already been completed, this remedy has no practical implications with respect to this case. We, nevertheless, decide the issues presented because the underlying dispute regarding the First Amendment right of access is capable of repetition in future cases yet likely to evade review.
This case stems from the high-profile criminal prosecution of Martha Stewart, the founder and former chief executive officer of Martha Stewart Living Omnimedia, Inc. and the doyenne of the home-lifestyle industry, and of her former stockbroker, Peter Bacanovic. The criminal charges against Stewart and Bacanovic stem from Stewart's sale of 3,928 shares of stock in the biotech company, ImClone Systems, Inc., on December 27, 2001. Stewart made this sale just before ImClone's stock price plummeted following an announcement that the Food and Drug Administration had rejected the company's application for approval of its highly touted cancer-fighting drug. The government subsequently initiated an investigation into whether Stewart undertook this trade in violation of federal securities laws and regulations that prohibit trading on the basis of material, nonpublic information. The Superseding Indictment alleges, inter alia, that, after learning of these investigations, Stewart and Bacanovic "entered into an unlawful conspiracy to obstruct the investigations[,] to make false statements and provide false and misleading information regarding Stewart's sale of ImClone stock[,] and to commit perjury, all to conceal and cover up" the fact that Baconovic had provided Stewart with non-public information and that Stewart had traded on the basis of that information. Superseding Indictment, dated January 5, 2004 ¶ 23. Specifically, Stewart stands accused of conspiracy to commit offenses against the United States, in violation of 18 U.S.C. § 371 (2000); making false statements, in violation of 18 U.S.C. § 1001 (2000); obstruction of agency proceedings, in violation of 18 U.S.C. § 1505 (2000); and securities fraud, in violation of 15 U.S.C. § 78j (2000). Bacanovic is charged with conspiracy to commit offenses against the United States, in violation of 18 U.S.C. § 371 (2000); making false statements and documents, in violation of 18 U.S.C. § 1001 (2000); perjury, in violation of 18 U.S.C. § 1621 (2000); and obstruction of agency proceedings in violation of 18 U.S.C. § 1505 (2000).
From the start, the Stewart case found itself the focus of an unusually high level of media attention. Recognizing the problems presented in empaneling an unbiased jury under these circumstances, the district court, with the consent of both sides, devised a two-part voir dire process. Prospective jurors would first be screened based on their responses to a lengthy questionnaire. Members of the remaining venire panel would then be individually questioned, outside the presence of other prospective jurors, in the district judge's robing room. Before jury selection began, the government wrote to the court, expressing concern that members of the media would attempt to interview prospective jurors during jury selection on January 6, 2004, when questionnaires were to be distributed. As a result, the government requested, on behalf of all parties to the case, that the court remind representatives of the media that such contact was forbidden. In response, the district court issued an order, dated January 2, 2004, prohibiting the media from communicating with jurors or prospective jurors or with their family members until such time as that juror's or potential juror's service was complete. According to the district court, this measure was "necessary to ensure the integrity of [the] proceedings" as well as "the public's and the parties' overriding interest in a fair trial."
Following the distribution of questionnaires on January 6, 2004, counsel for Stewart, by letter dated January 7, 2004, advised the court that a posting had appeared on the website www.gawker.com, paraphrasing certain portions of the jury questionnaire. The author of the entry purported to be a prospective juror, and there is no evidence in the record to suggest otherwise; nor is there any indication that the media played a role in the disclosure. Nevertheless, citing this incident in support of its request, the government, by letter dated January 14, 2004, which was not docketed or made public until after the entry of the order here at issue, asked the district court to exclude the media from the voir dire proceedings scheduled to be conducted in the robing room and to prohibit the media from publishing or otherwise disclosing the identity of prospective jurors. This measure, the government represented, was necessary to ensure juror candor and thereby protect the "parties' right to a fair trial." That same day, several reporters wrote to the district court to inquire whether subsequent voir dire proceedings would be held in open court and, if not, to request that the court consider allowing pool reporters to attend the sessions.1 The reporters noted that pool reporters had been effectively employed during voir dire examinations in the prosecutions of Imelda Marcos and of Sheik Omar Abdel Rahman and his co-conspirators.
Notwithstanding this request, without affording members of the media notice or an opportunity to be heard, the district court issued an order on January 15, 2004 (the "January 15 Order") providing that "no member of the press [could] be present for any voir dire proceedings [to be] conducted in the robing room" and that, instead, "a transcript of each day's voir dire proceedings [would] be made public the following day, with the names of prospective or selected jurors redacted from the transcripts, as well as such deeply personal information as any juror [should] reasonably request not be made public." United States v. Stewart, No. 03 Cr. 717, slip op. at 3, 2004 WL 65159, 2004 U.S. Dist. LEXIS 426 (S.D.N.Y. Jan. 15, 2004). In support of this ruling, the January 15 Order set forth the following factual findings:
WHEREAS, the proceedings in this case have generated widespread and intense media coverage;
WHEREAS, the "press" as used in this Order includes representatives of the print, broadcast and internet media, sketch artists, photographers, free-lance journalists, authors, and writers;
WHEREAS, portions of the jury questionnaire provided to prospective jurors on January 6, 2004 were disclosed to the public in violation of this Court's directives; and
There has been considerable speculation in the press concerning the identities of prospective jurors, and there is a substantial likelihood that some members of the press may disclose the names of prospective or selected jurors with their responses to voir dire questions;
WHEREAS, there is a substantial risk that such publication or the possibility of such publication would prevent prospective jurors from giving full and frank answers to questions posed to them during voir dire;
WHEREAS, in a case that has generated such widespread publicity, it is essential that prospective jurors disclose what t...
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