402 F.3d 304 (2nd Cir. 2005), 04-2432, United States v. Quattrone

Docket Nº:04-2432-CR.
Citation:402 F.3d 304
Party Name:UNITED STATES of America, Appellee, v. Frank QUATTRONE, Defendant, Forbes Inc., ABC, Inc., the Associated Press, Cable News Network L.P., L.L.L.P., Daily News, L.P., the Hearst Corporation, the McGraw-Hill Companies, Inc., National Broadcasting Company, Inc., Newsday, Inc., the New York Times Company, the Washington Post Co., the New York Press Clu
Case Date:March 22, 2005
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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402 F.3d 304 (2nd Cir. 2005)

UNITED STATES of America, Appellee,

v.

Frank QUATTRONE, Defendant,

Forbes Inc., ABC, Inc., the Associated Press, Cable News Network L.P., L.L.L.P., Daily News, L.P., the Hearst Corporation, the McGraw-Hill Companies, Inc., National Broadcasting Company, Inc., Newsday, Inc., the New York Times Company, the Washington Post Co., the New York Press Club, Inc., Appellants.

No. 04-2432-CR.

United States Court of Appeals, Second Circuit.

March 22, 2005.

Argued: Nov. 2, 2004

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[Copyrighted Material Omitted]

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Floyd Abrams, Cahill Gordon & Reindel LLP (Joel Kurtzberg, Cahill Gordon & Reindell; David A. Schulz, Alia L. Smith, Levine Sullivan Koch & Schulz LLP, on the brief), New York, NY, for appellants.

Jacob W. Buchdahl, Assistant United States Attorney for the Southern District of New York (David B. Anders, Celeste L. Koeleveld, Assistant United States Attorneys; David N. Kelley, United States Attorney, on the brief), New York, NY, for appellee.

Before: CARDAMONE, CABRANES and SOTOMAYOR, Circuit Judges.

SOTOMAYOR, Circuit Judge.

Appellant media organizations ("appellants") challenge a prior restraint on publication imposed by the United States District Court for the Southern District of New York (Owen, J.). 1 The district court, in an effort to protect the integrity of a criminal trial, forbade appellants and other members of the media from publishing, during the pendency of the trial, jurors' names that were disclosed in open court. Because nothing in the record justified an exception to the First Amendment doctrines that bar prior restraints and protect the right to report freely on information disclosed in open court proceedings, we hold that the district court's order violated the Free Speech and Free Press Clauses of the First Amendment.

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BACKGROUND

This appeal arises out of the retrial of Frank Quattrone, a former executive of Credit Suisse First Boston ("CSFB") who was accused, and later convicted, of obstructing the federal government's investigation of CSFB's initial public offerings of certain technology companies. Quattrone had directed members of his staff to "clean up" files after he learned that the Securities and Exchange Commission had issued subpoenas to CSFB and various of its employees. After Quattrone's first trial ended with a hung jury in October 2003, Judge Richard Owen of the United States District Court for the Southern District of New York scheduled a retrial for the following April.

Shortly before Quattrone's retrial, a state court judge declared a mistrial in the separate but similarly high-profile prosecution of Dennis Kozlowski, a former chief executive of Tyco Corporation. See Andrew Ross Sorkin et al., The Tyco Mistrial: The Overview, N.Y. Times, Apr. 3, 2004, at A1. Near the close of the Kozlowski trial, several publications, including the New York Post and the Wall Street Journal's online edition, had disclosed the name of a juror who, according to press reports, had signaled support for defendant Kozlowski through a hand gesture made in open court. In addition to disclosing her name, several media outlets published personal and unflattering information about the juror that they had obtained from her neighbors and from her apartment building's concierge. Soon after this publicity began, the juror received an anonymous phone call asking her how much the "Kozlowski team" was paying her. Anthony M. DeStefano, Tyco Mistrial: Judge Seals Note to Juror No. 4, Newsday, Apr. 8, 2004, at A7. She also received a letter at her home address, the contents of which, she later told the court, alarmed and frightened her. See id. The state court judge declared a mistrial, citing the "pressure that ha[d] been brought to bear on one woman whose name and background [had been] widely publicized," and voicing his regret that the court had been unable to "protect the process sufficiently to permit" the jury to reach a verdict. Karen Freifeld, Tyco Trial Ends, Newsday, Apr. 3, 2004, at A3; Sorkin et al., supra.

On April 7, 2004--less than a week after the widely-reported Kozlowski mistrial--Judge Owen held a final pretrial conference in the Quattrone case, where he rejected a last-minute request from Quattrone to empanel an "anonymous jury"--that is, a jury whose members' names would not be revealed to the parties, to counsel or to the public. The judge indicated, however, that "[i]f [he had] the power to do it," he would grant Quattrone's request for an order barring the press from publishing the names of jurors. Appellant's Appendix ("Appendix") at 53. The government cautioned the court that such an order might constitute a prior restraint on speech in conflict with the First Amendment.

On April 13, 2004, in a colloquy before the start of voir dire, Judge Owen informed counsel that he would order the press to refrain from publicly revealing any juror's name. The government advised the district court that the press was likely to contest the order, but Judge Owen remained firm in his position, stating that he wished to avoid a mistrial as had occurred in the Kozlowski case.

During jury selection, Judge Owen stated in open court the full names of the first twelve potential jurors. The judge then declared:

Ladies and gentlemen of the jury panel, and any members of the media, should there be any in the room or outside of the room and have notice of what I'm

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about to say, I am preserving that it's an order of this Court that no member of the press or a media organization is to divulge at any time until further order of this Court the name of any prospective or selected juror. And that's to anybody who has notice of it, and I'm sure that's going to be communicated around.

Appendix at 122. Before jury selection resumed the following morning, counsel for several media organizations submitted a letter objecting to the court's order and requesting an immediate opportunity to be heard. The court agreed to hold a hearing at the end of the day. Throughout that day, the court continued to identify prospective jurors by name in open court.

The judge addressed the media's objections in a hearing on the record held in his robing room at the end of the day. In explaining the order, Judge Owen left no doubt that his primary concern was the possibility of a repeat of the Kozlowski incident, in which, Judge Owen explained, a six-month trial was "absolutely destroyed" and "blown out of the water by a publication of [a juror's] name." Appendix at 356, 361. Clarifying that the restrictions on the press would "terminate[ ] the minute the case is over," and emphasizing the need to "give[ ] both the prosecution and the defense the fairest possible trial," the court refused to vacate its earlier order prohibiting the publication of jurors' names. Id. at 366. A coalition of news organizations appealed. 2

DISCUSSION

A judicial order forbidding the publication of information disclosed in a public judicial proceeding collides with two basic First Amendment protections: the right against prior restraints on speech and the right to report freely on events that transpire in an open courtroom. Because nothing in this case justified the district court's infringement of these two central freedoms, we hold that the court's order violated the Free Speech and Free Press Clauses of the First Amendment. 3

A.

Before elaborating on the merits, we address our jurisdiction to hear this appeal. Under Article III of the Constitution, we may exercise jurisdiction only over live cases and controversies. See ABC, Inc. v. Stewart, 360 F.3d 90, 97 (2d Cir.2004). Because Quattrone's trial has ended and the district court's order has, by its own terms, dissolved, a question necessarily arises as to whether this appeal remains justiciable. Ordinarily, if an event occurs during the course of the proceedings or on appeal " 'that makes it impossible for the court to grant any effectual relief whatever to a prevailing party,' we must dismiss the case." Id. (quoting Church of Scientology v. United States, 506 U.S. 9, 12, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992) (further internal quotation marks omitted)).

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