573 F.2d 835 (3rd Cir. 1978), 77-2445, United States v. Cianfrani

Docket Nº:Schaffer and James Smith, in No. 77-2445.
Citation:573 F.2d 835
Party Name:UNITED STATES of America v. Henry J. CIANFRANI (two cases). Appeal of Intervenors, PHILADELPHIA NEWSPAPER, INC., Jan
Case Date:March 16, 1978
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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573 F.2d 835 (3rd Cir. 1978)



Henry J. CIANFRANI (two cases).

Appeal of Intervenors, PHILADELPHIA NEWSPAPER, INC., Jan

Schaffer and James Smith, in No. 77-2445.

Appeal of BULLETIN COMPANY and Columbia Broadcasting System,

in No. 77-2462.

Nos. 77-2445, 77-2462.

United States Court of Appeals, Third Circuit

March 16, 1978

Argued Dec. 20, 1977.

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Donald L. Weinberg, Samuel E. Klein, David H. Weinstein, Kohn, Savett, Marion & Graf, Philadelphia, Pa., for appellants in No. 77-2445.

John R. McConnell, Joseph H. Huston, Jr., Morgan, Lewis & Bockius, Philadelphia, Pa., for appellants in No. 77-2462.

Nicholas J. Nastasi, Sanford I. Jablon, Philadelphia, Pa., for appellee, Henry J. Cianfrani.

Before SEITZ, Chief Judge, and GIBBONS and GARTH, Circuit Judges.


SEITZ, Chief Judge.

Several newsgathering 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. 1



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

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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, 88 S.Ct. 472, 19 L.Ed.2d 465 (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

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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. 2

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, 96 S.Ct. 2791, 49 L.Ed.2d 683 (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

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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...

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