U.S. v. Martin

Decision Date11 September 1984
Docket NumberNo. 84-1469,84-1469
Citation746 F.2d 964
Parties10 Media L. Rep. 2465 UNITED STATES of America v. MARTIN, James. Appeal of PHILADELPHIA NEWSPAPERS, INC., Westinghouse Broadcasting and Cable, Inc., and CBS Inc. . Submitted Under Third Circuit Rule 12(6)
CourtU.S. Court of Appeals — Third Circuit

Katherine Hatton, Samuel E. Klein, Kohn, Savett, Marion & Graf, P.C., Philadelphia, Pa., Gregory M. Harvey, Frank L. Corrado, Morgan, Lewis & Bockius, Edward W. Mullinix, James D. Crawford, Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., for appellants.

John J. Swaim, Philadelphia, Pa., for appellee.

Michael S. Durst, Mozenter, Molloy & Durst, Philadelphia, Pa., for Fraternal Order of Police, Lodge No. 5, amicus curiae.

Before SEITZ, HIGGINBOTHAM and SLOVITER, Circuit Judge.

OPINION OF THE COURT

A. LEON HIGGINBOTHAM, Jr., Circuit Judge.

This is an appeal from an order of the district court denying Philadelphia Newspapers, Inc., Westinghouse Broadcasting and Cable, Inc., and CBS, Inc. ("appellants") permission to copy audiotapes admitted into evidence at the trial of seven former Philadelphia police officers. The district court also denied appellants access to transcripts of the tape recordings that had been given to the jury. Applying the principles established in United States v. Criden, 648 F.2d 814 (3d Cir.1981), the district judge determined that he had "no reasonable alternative to this course of action." Bench Opinion at 12A. For the reasons set forth below, we will reverse the order of the district court.

I.

On May 3, 1984 fifteen officers and former officers of the Philadelphia Police Department were indicted on charges stemming from an alleged city-wide practice of extorting protection money from operators of illegal video poker machines and "numbers" lotteries. The indictment charged each defendant with conspiracy, racketeering, and multiple counts of extortion. In addition, the indictment charged James Martin, then the Deputy Commissioner of the Philadelphia Police Department, with three counts of obstructing a criminal investigation through the payment of "hush money" to Albert Ricci, a Philadelphia police officer who was named as a defendant in an initial indictment handed down in March, but who later pleaded guilty and agreed to testify for the government. Martin and Joseph DePeri, a Chief Inspector at the time of the indictment, were also charged with obstructing justice by destroying records relating to payoffs made by video poker machine vendors. The trial of Martin, DePeri and five other defendants ended on August 10, 1984 with verdicts of guilty on all counts. The trial of the eight remaining defendants is scheduled to begin on November 5, 1984.

The government's case, which included the testimony of Albert Ricci and numerous victims of the alleged extortion conspiracy, centered on former Lieutenant Joseph Alvaro. Alvaro resigned from the force and agreed to cooperate with the FBI in exchange for immunity after his name surfaced in the ongoing federal investigation of corruption in the Philadelphia Police Department. In addition to Alvaro's in-court testimony, the jury heard tape recordings of face-to-face and telephone conversations between Alvaro and--principally--Martin, DePeri, and Ricci. While jurors were provided with headsets and transcripts to aid them in following the conversations, courtroom spectators could only listen to the tapes over the loudspeakers. 1 Appellants, owners of two local newspapers and three broadcast stations, promptly moved for permission to copy the audiotapes and for access to the transcripts, for the purpose of disseminating these materials to the public. They now appeal from the district court's denial of their motions. Counsel for one of the remaining eight defendants entered an appearance as an appellee, but deferred to the Fraternal Order of Police, which filed a

                brief as amicus curiae.    We granted appellants' petition for expedited consideration
                
II.

Appellants contend that the district court misapplied the principles of United States v. Criden, 648 F.2d 814 (3d Cir.1981) (hereinafter cited as Criden I ) 2 in denying their request for access to the tape recordings and transcripts. Thus, our analysis must begin with a brief review of that case.

Criden I arose out of the FBI undercover operation popularly known as "Abscam". George X. Schwartz, then President of the Philadelphia City Council, Harry P. Jannotti and Louis C. Johanson, Philadelphia City Council members, and Howard L. Criden, a Philadelphia attorney, were indicted on charges of bribery and related offenses. At the trial of Schwartz and Jannotti, which the district court had severed from the other cases, video and audiotapes made by the FBI were prominent items of proof. The district court released transcripts of the tapes, but denied the three major networks and a local broadcaster permission to copy the tapes for rebroadcast to the public.

On appeal we acknowledged that release of the tapes was a matter committed to the discretion of the district court, but we explained that the exact scope of review of a discretionary matter is dependent on "the reason why that category or type of decision is committed to the trial court's discretion in the first instance." 648 F.2d at 817. We went on to say:

In the matter before us on this appeal, the decision whether to release the tapes was not dependent in the main on particular observations of the trial court. Therefore, the trial court's decision is not accorded the narrow review reserved for discretionary decisions based on first-hand observations, and we must consider both the relevance and weight of the factors considered....

We note that until or unless guiding rules have become fixed, it is important that the exercise of discretion be accompanied by the trial court's articulation of the factors considered and the weight accorded to them, ....

648 F.2d at 818-19.

Applying this standard of review, we reversed the order of the district court in Criden I. We found that the district court had given too little weight to the common law right of the public to inspect and copy judicial records, see Nixon v. Warner Communications, 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978), and "the significant interest of the public in observation, participation, and comment on the trial events," 648 F.2d at 823. We held that these two factors together created "a strong presumption that material introduced into evidence at trial should be made reasonably accessible in a manner suitable for copying and broader dissemination." 3 Id. Of the factors the district court cited as militating against release, we dismissed some as irrelevant or entitled to little weight, 4 and concluded that others could be addressed by Here the district court has stated three reasons for its decision to deny access: (1) the transcripts sought by appellants were not admitted into evidence (Bench Opinion at 4-5); (2) the public interest in these proceedings is not as significant as the interest in Abscam (Bench Opinion at 7-8); and (3) the "enhanced publicity" caused by release of the requested materials would likely make it impossible to impanel a fair and impartial jury for the trial of the eight remaining defendants (Bench Opinion at 11). As we did in Criden I, "[w]e must consider both the relevance and weight of the factors considered." 648 F.2d at 818. We do so with the added guidance of the legal rules that emerged in Criden I.

means short of withholding the tapes wholesale. 5

1. Access to Materials Not Admitted Into Evidence

The first consideration the district court mentioned in denying appellants' request was the fact that the transcripts provided to the jury were not admitted into evidence. "Thus," the district court concluded, "any common law right to access to evidence introduced at trial should not apply to tape transcripts." Bench Opinion at 5. We believe that the district court's view of the common law right is too narrow, and that the strong presumption in favor of access established in Criden I applies to these transcripts.

It is true, as the district court noted, that our holding in Criden I extended only to "material introduced into evidence at trial...." 648 F.2d at 823. In that case, however, the district court did release transcripts of the video and audiotapes to the public, 648 F.2d at 822, and the appeal raised only the issue of permission to copy and rebroadcast the evidence itself. 6 Thus, we had no occasion to consider whether the strong presumption in favor of access applied to judicial records and documents other than evidence. That issue is now squarely before us.

The strong presumption established in Criden I was based on two factors: the common law right of access to judicial records, and the public interest in "observation, participation, and comment ...." 648 F.2d at 823. We find that both of these factors support a strong presumption in favor of access to these transcripts. The common law right of access is not limited to evidence, but rather encompasses all "judicial records and documents," Warner Communications, 435 U.S. at 597, 98 S.Ct. at 1311-1312. It includes "transcripts, evidence, pleadings, and other materials submitted by litigants ...." Comment, All Courts Shall Be Open: The Public's Right to View Judicial Proceedings, 52 Temple L.Q. 311, 337-38 (1979). The public interest in monitoring judicial proceedings 7 also supports a presumption in favor of access. Although representatives of the media were present at the trial and were able to take notes on the recorded conversations as they were played to the jury, this procedure has obvious limitations. The public interest can best be vindicated by the release of complete and accurate transcriptions, at the expense of the media applicants. We therefore hold that the strong presumption in favor of public access applies In...

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