690 F.2d 1230 (7th Cir. 1982), 82-2489, United States v. Dorfman
|Docket Nº:||82-2489, 82-2520.|
|Citation:||690 F.2d 1230|
|Party Name:||UNITED STATES of America, Plaintiff-Appellee, v. Allen M. DORFMAN, et al., Defendants-Appellants. Chicago Tribune Company, et al., Intervenors-Appellees. UNITED STATES of America, Plaintiff-Appellee, v. Allen M. DORFMAN, et al., Defendants-Appellants. Appeal of William E. WEBBE, et al.|
|Case Date:||October 01, 1982|
|Court:||United States Courts of Appeals, Court of Appeals for the Seventh Circuit|
Submitted Sept. 28, 1982.
Rehearing and Rehearing En Banc Denied Nov. 9, 1982.
Michael J. Rovell, Jenner & Block, Harvey M. Silets, Silets & Martin, Ltd., Theodore Sinars, Harris, Burman, Sinars & Jiganti, Edward L. Foote, Winston & Strawn, Chicago, Ill., for defendants-appellants.
Gary Shapiro, Sp. Atty., U. S. Dept. of Justice, Chicago, Ill., for plaintiff-appellee.
A. Daniel Feldman, Isham, Lincoln & Beale, Lawrence Gunnels, Reuben & Proctor, Chicago, Ill., for intervenors-appellees.
Before CUMMINGS, Chief Judge, and POSNER and COFFEY, Circuit Judges.
POSNER, Circuit Judge.
The appellants in No. 82-2489 are five persons charged with various federal crimes arising out of an alleged scheme to defraud a union's pension fund. Their trial is to begin in a few days. As part of the investigation that led to their indictment the government engaged in wide-ranging wiretapping for more than a year. Hundreds of persons' telephone conversations were intercepted, yielding more than 2000 reels of taped conversations. The defendants moved under 18 U.S.C. § 2518(10)(a), a part of Title III of the Federal Omnibus Crime Control and Safe Streets Act of 1968, as amended, 18 U.S.C. §§ 2510-2520, to suppress at trial the fruits of the wiretapping of their conversations, on the ground that the wiretapping was unlawful under Title III. At the evidentiary hearing on the motion, the government submitted some 200 exhibits containing wiretap materials. The district judge ordered the exhibits to be sealed. At the conclusion of the hearing he ruled that most of the wiretap evidence that the government contended was relevant to the criminal prosecution had been obtained lawfully.
This ruling precipitated a motion by newspaper publishers and broadcasters to unseal the sealed exhibits, so that they could be inspected and copied. The news media are interested in the exhibits because the defendants include senior officers of labor unions and alleged captains of "organized crime," the crimes charged include bribery of a United States Senator, and as a result of the nature of the alleged crimes and the identity of the defendants the criminal prosecution has already been publicized widely.
The district judge (in two orders that we shall treat as one for the sake of simplicity) directed that most of the sealed exhibits be unsealed; some of these, however, are not to be unsealed until the jury has been empaneled. The defendants-appellants argue that the release of any of the sealed exhibits, unless and until they are put into evidence at the trial (most of them will not be), would violate both Title III and the constitutional guarantee of a fair trial.
We must decide first whether we have jurisdiction of this appeal from what is technically an interlocutory order. We have some difficulty with the argument that the order is in effect the denial of an injunction to protect the defendants' right of privacy under Title III. Orders denying injunctions are, of course, appealable regardless of finality, 28 U.S.C. § 1292(a)(1), but Title III does not provide for injunctive relief (a deliberate omission, see S.Rep.No.1097, 90th Cong., 2d Sess. 107 (1968) U.S.Code Cong. & Admin.News, p. 2112); and while it does of course provide for motions to suppress, in other contexts such motions have not been considered "injunctions" for purposes of section 1292(a)(1), as we noted just the other day in holding that these appellants could not appeal the district judge's order denying their motion to suppress the wiretap evidence as unlawfully obtained. United States v. Dorfman, 690 F.2d 1217, 1223 (7th Cir. 1982).
The appellants also rely however on the collateral order doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 545-47, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949), which permits the immediate appeal of an order that is at once so far separate from the main case that the appeal will not interrupt and delay the progress of the trial, and likely to become moot if judicial review is postponed until the final judgment in the main case is appealed. To refuse to allow immediate appeal in such a case would have no basis in the final-judgment rule (28 U.S.C. § 1291), which seeks to expedite the trial while preserving a meaningful right of judicial review of the legal rulings made at the trial.
The motion to unseal the exhibits, and this appeal insofar as it is based on Title III from the grant of that motion, compose a proceeding that is distinct from-in the
practical sense of not interfering...
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