735 F.2d 51 (2nd Cir. 1984), 1005, National Broadcasting Co. v. United States Dept. of Justice

Docket Nº:1005, Docket 83-9040.
Citation:735 F.2d 51
Party Name:In re Application of NATIONAL BROADCASTING CO., et al., Applicants-Appellants, v. UNITED STATES DEPARTMENT OF JUSTICE, Respondent-Appellee.
Case Date:May 23, 1984
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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735 F.2d 51 (2nd Cir. 1984)

In re Application of NATIONAL BROADCASTING CO., et al.,




No. 1005, Docket 83-9040.

United States Court of Appeals, Second Circuit

May 23, 1984

Argued April 4, 1984.

Floyd Abrams, New York City (Cahill, Gordon & Reindel, Devereux Chatillon, New York City, of counsel), for applicants-appellants.

Douglas Letter, Atty., Appellate Staff, Civ. Div., Dept. of Justice, Washington, D.C. (Alan H. Nevas, U.S. Atty., New Haven, Conn., Richard K. Willard, Acting Asst. Atty. Gen., Barbara L. Herwig, Atty. Dept. of Justice, Washington, D.C., of counsel), for respondent-appellee.

Before FEINBERG, Chief Judge, and FRIENDLY and OAKES, Circuit Judges.

FEINBERG, Chief Judge:

National Broadcasting Company, Inc., (NBC) and various individuals who are present or former NBC officers and employees (collectively referred to as NBC), appeal from a judgment of the United States District Court for the District of Connecticut, T.F. Gilroy Daly, Ch. J., denying an application to inspect and copy material obtained by, or related to, electronic surveillance conducted pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended, 18 U.S.C. Secs. 2510-2520. The basis of Chief Judge Daly's decision was that the district court lacked power to require the government to disclose most of the material sought and that no "good cause" had been shown as to the remainder. For reasons indicated below, we affirm the judgment of the district court.


The application grows out of a libel action now pending in the United States District Court for the District of Nevada brought by Wayne Newton, a prominent entertainer, against appellants and others. The complaint in that action claims that NBC libeled Newton in three television news broadcasts in October and November 1980 and in June 1981. These broadcasts concerned, among other things, investigations into organized crime and an indictment

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by a federal grand jury in Connecticut of Guido Penosi and Frank Piccolo, and applications to Nevada gaming authorities regarding licenses for Newton and others to own and operate the Aladdin Hotel and Casino in Las Vegas. Newton testified both before the grand jury and at two trials of Penosi.

The broadcasts focused on the relationship between Newton and Penosi, who was allegedly involved in organized crime. The October 1980 broadcast stated that Newton had called Penosi for help with "a problem" and that the latter had contacted another "mob boss", Frank Piccolo, to solve the problem. The broadcast reported, among other things, that Piccolo had "taken care of Newton's problem, and had become a hidden partner in the Aladdin hotel deal." The broadcast also reported Newton's testimony to Nevada regulatory authorities denying any "relationship" with Penosi, the frequent telephone conversations between the two and the belief of federal officials that Newton had not told the "whole story." The November 1980 broadcast reported Newton's appearance before the federal grand jury in Connecticut; the June 1981 broadcast reported the indictment in Connecticut of Piccolo and Penosi, and stated that Newton had become a "victim" of a "mob scheme."

The indictment, which apparently grew out of a series of wiretaps by the government under Title III, charged a conspiracy to extort money from Newton, his business manager and another entertainer in violation of the Hobbs Act, 18 U.S.C. Sec. 1951. Pursuant to Title III, the government had filed sealed affidavits that presumably demonstrated probable cause to believe that the wiretaps would uncover criminal activity. Piccolo was killed before the criminal case went to trial. Penosi was tried twice; the first trial resulted in a hung jury, the second in acquittal. Some of the recordings arising out of the wiretaps were admitted into evidence at the trials.

In the Nevada...

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