Application of National Broadcasting Co., Inc.
| Decision Date | 01 October 1980 |
| Docket Number | D,No. 1667,1667 |
| Citation | 635 F.2d 945 |
| Parties | 6 Media L. Rep. 1961 In re Application of NATIONAL BROADCASTING COMPANY, INC. et al., Applicants- Appellees. UNITED STATES of America v. Michael O. MYERS et al., Defendants-Appellants. ocket 80-1345. |
| Court | U.S. Court of Appeals — Second Circuit |
Neil I. Levy and Richard Ben-Veniste, Washington, D.C., for defendant-appellant Criden.
Henry F. Furst, Newark, N.J. (Raymond A. Brown, Newark, N.J., on brief), for defendant-appellant Errichetti.
John J. Duffy, Philadelphia, Pa., for defendant-appellant Johanson.
(Plato Cacheres and Larry Gondelman, Washington, D.C., on brief for defendant-appellant Myers.)
Edward R. Korman, U.S. Atty., Brooklyn, N.Y., for the United States.
Floyd Abrams, New York City (Robert C. Meade, Cahill, Gordon & Reindel, J. Marshall Wellborn, National Broadcasting Companies, Inc., Samuel Antar, American Broadcasting Companies, and Allen Shaklan, CBS Inc., New York City, on brief), for applicants-appellees National Broadcasting Co., American Broadcasting Companies, and CBS Inc. Daniel Rezneck, Washington, D.C. (Stephen E. Kaufman, New York City, Clifford Stromberg, Robert N. Weiner, Arnold & Porter, Washington, D.C., on brief), for Congressman Frank Thompson, Jr., as amicus curiae.
Before NEWMAN and KEARSE, Circuit Judges, and DUMBAULD, * District Judge.
This appeal presents an infrequently litigated issue within the general context of the fair trial-free press controversy: whether television networks may copy and televise videotapes entered into evidence in a criminal trial. The issue arose during the first of the so-called Abscam cases, see United States v. Meyers, 635 F.2d 932(2d Cir. 1980), criminal prosecutions of Members of Congress and other public officials on bribery and related charges arising out of an elaborate F.B.I. undercover "sting" operation. The District Court for the Eastern District of New York (George C. Pratt, Judge) granted the application of the three major television networks to copy and televise all videotapes admitted into evidence. We affirm the District Court's order.
The history of the Abscam cases begins in 1978. Sometime during that year, law enforcement officials in the Eastern District of New York conceived of an undercover operation to determine whether public officials would commit bribery offenses if presented with the opportunity to do so. Agents of the Federal Bureau of Investigation and a salaried informant developed a "sting" operation, using a fictitious Middle Eastern business, Abdul Enterprises Ltd., as a cover. The undercover operatives posed as representatives of the owners of the Middle Eastern business who, in turn, were portrayed to potential targets of the operation as wealthy individuals seeking to emigrate to, and invest money in, the United States. Substantial sums of cash were offered as bribes ostensibly to secure the help of the public officials on various governmental matters including solving the immigration problems of the "businessmen" by sponsoring private bills in Congress and by influencing actions of the Executive Branch. Acceptance of these bribes formed the basis of the criminal charges. The conversations of the undercover men and their targets were surreptitiously recorded on audio and video tapes. The tapes at issue in this case record some of the dealings between the undercover operatives and the four appellants, notably the acceptance by Congressman Myers of $50,000 cash and his demand of an additional $35,000.
On February 2, 1980, several news organizations disclosed the existence of the undercover operation. Broadcast and print journalists reported that several Members of Congress, state and local officials, lawyers, and businessmen had been videotaped in the act of negotiating and, in some instances, accepting bribes offered by the operators of the "sting." These revelations triggered an explosion of publicity in the national and local media. As a result, the word "Abscam" (a coined word from the first two letters of Abdul Enterprises, Ltd. and the word "scam"), quickly became a widely known label for a series of episodes of alleged political corruption. The news media also reported that they had learned about Abscam from law enforcement officials. Though the identity of the sources remains unclear, their employment within the Department of Justice has been acknowledged by the Attorney General, who called the leaks one of the "low points" in the history of the Department. Address of the Attorney General of the United States Before Department of Justice Employees, March 5, 1980, p. 8.
Thus far, the Abscam operation has led to seven indictments, alleging bribery and related offenses. The first, returned in the Eastern District of New York, charges the four appellants in this case, Congressman Michael O. Myers of the First Congressional District of Pennsylvania; Angelo J. Errichetti, the Mayor of Camden, New Jersey, who is also a New Jersey State senator; Louis C. Johanson, a member of the Philadelphia City Council; and Howard L. Criden, a Philadelphia lawyer. The charges against the appellants are detailed in United States v. Myers, supra. Three other indictments are pending in the Eastern District of New York. One charges Congressman Raymond Lederer of the Third District of Pennsylvania and appellants Criden, Errichetti, and Johanson. The second charges Congressman Frank Thompson, Jr. of the Fourth District of New Jersey, Congressman John M. Murphy of the Seventeenth District of New York, Criden, and Joseph Sylvestri, a New Jersey businessman. The third charges Alexander Alexandro, an official of the Immigration and Naturalization Service, and Al Carpentier. One indictment in the Eastern District of Pennsylvania charges Criden, Johanson, and two Philadelphia City Councilmen, George Schwartz and Harry Jannotti. Two indictments have been returned in the District of Columbia. One charges Congressman John Jenrette of the Sixth District of South Carolina and John Stowe. The other charges Congressman Richard Kelly of the Fifth District of Florida, Eugene Ciuzio, William Rosenberg, and Stanley Weisz.
Trial in this case began August 11. When the jury was selected, contrary to the expectations of the appellants as to the extent of the pre-trial publicity concerning Abscam, only about one-half of the prospective jurors indicated that they had ever heard of Abscam. Moreover, as Judge Pratt noted in ruling on the networks' request for copies of the videotapes, of those members of the venire who had any knowledge of Abscam, only eight or ten had "anything more than a most generalized kind of recollection what it was all about." Trial Tr. 1478. At the defendants' request, the jury was not sequestered.
The appellants did not dispute the authenticity of the tapes, nor challenge the occurrence of the events portrayed. Their essential defense at trial was that they never had any intention of taking any official action on behalf of the "businessmen," and, in effect, were defrauding the "businessmen" by seeking and obtaining cash from them.
The courtroom was equipped to permit presentation of the audio and video tapes to the jury. Under the arrangements established in the courtroom, the tapes also could be seen and heard by journalists and members of the general public seated in the spectator section. In the interest of accuracy, verbatim transcripts of the contents of the tapes were distributed to the jury and members of the press. Media sketch artists were permitted to sketch the scenes recorded on the videotapes as they were presented to the jury. Excerpts from the transcripts and the artists' sketches were published by the print and electronic media throughout the trial.
On the first and third days of the trial, broadcast journalists made informal requests of the trial judge for permission to copy the tapes admitted into evidence. Judge Pratt denied these requests but invited the networks to submit a formal application. In their formal application filed on August 14, the networks proposed to copy the tapes simultaneously with the presentation of the tapes to the jury. The copying was to be accomplished, without disturbing the trial, by means of a single, inconspicuous wire attached to the videotape projector in the courtroom and connected to the networks' equipment located in an adjacent room of the courthouse. The networks intended to broadcast all or portions of the tapes to the public.
On the morning of August 15, the District Court heard argument on the networks' application. In an oral opinion rendered from the bench during the afternoon session, the Court granted the application subject to the qualification that the tapes be copied at the close of the trial day or half-day in which each tape was admitted into evidence. In so ruling, the Court stated that "the tapes themselves are evidence (and) they are, under common law principles, available to the public and the press," unless "there is a strong showing of reasons why they should not be made available." Trial Tr. at 1480.
Judge Pratt stayed his order briefly to permit appellants to seek relief in this Court. The appellants promptly asked this Court to extend the stay pending appeal. We converted oral argument on that motion into an argument on the merits of the appeal, which we heard on August 21. On August 22, we set an expedited briefing schedule and continued the stay pending disposition of the appeal. United States v. Myers, supra, 635 F.2d 942 (2d Cir. 1980).
On August 30, the jury returned guilty verdicts against all four appellants. That circumstance has not diminished the networks' interest in copying and telecasting the tapes, nor the appellants' interest in preventing that result. 1 With this background in mind, we turn to the merits of the appeal. 2
The issue on the merits is whether ...
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Application of National Broadcasting Co., Inc.
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