US v. Noriega
| Decision Date | 06 December 1990 |
| Docket Number | No. 88-0079-Cr.,88-0079-Cr. |
| Citation | 752 F. Supp. 1045 |
| Parties | UNITED STATES of America, Plaintiff, v. Manuel Antonio NORIEGA, Defendant. Cable News Network, Inc., and Turner Broadcasting System, Inc. |
| Court | U.S. District Court — Southern District of Florida |
Norman A. Moscowitz, Sonia Escobio O'Donnell, Marcella Cohen, Asst. U.S. Attys., Miami, Fla., for U.S.
Frank A. Rubino, Coconut Grove, Fla., Jon May, Miami, Fla., Steven Kollin, Miami, Fla., for Noriega.
Terry S. Bienstock, Frates Beinstock & Sheehe, Miami, Fla., Daniel M. Waggoner, Stuart F. Pierson, Davis Wright Tremaine, Washington, D.C., Steven W. Korn, Turner Broadcasting System, Inc., Atlanta, Ga., for Cable News Network, Inc., and Turner Broadcasting System, Inc.
THIS CAUSE is before the court on Defendant General Manuel Antonio Noriega's motion to enjoin Cable News Network, Inc. and its corporate parent, Turner Broadcasting System, Inc. (collectively "CNN") from broadcasting taped recordings of conversations between Noriega and his defense team.
In this case, the court is called upon to balance two preferred and equally cherished constitutional guarantees: the Sixth Amendment right of a defendant to a fair trial and the First Amendment right of the press to be free of prior restraints on publication.
Defendant Manuel Noriega is currently detained at the Metropolitan Correctional Center ("MCC") located in Dade County, Florida. The subject of this action concerns telephone calls made by Noriega from MCC to his attorneys and other members of his defense team. The conversations were apparently recorded by MCC officials and obtained by CNN from an undisclosed source.
According to Noriega's motion, representatives from CNN appeared at the law office of Noriega's lead counsel, Frank Rubino, on November 6, 1990, and informed Rubino that CNN was in possession of seven tape recordings of telephone conversations that Noriega had while housed at MCC. CNN then played a portion of one of the tapes for Rubino, who identified the voices as those of Noriega, Rubino's secretary, and a legal assistant. According to the motion, the portion of the recording played contained discussions of trial strategy and investigation of the pending criminal charges against Noriega. The motion further states that CNN intended to air a story about the government's wire tapping of Noriega's telephone on its 6:00 p.m. broadcast on November 8.
On November 7, Noriega filed his emergency motion for an injunction, seeking an order prohibiting CNN from broadcasting any tape recording of any privileged communication between himself and any of his lawyers or defense staff. Noriega specifically did not seek to prohibit CNN from reporting on the government's taping of his conversations, nor did he seek to enjoin the broadcast of his conversations with persons other than members of his defense team, but objected only to the playing of a "constitutionally protected communication between an attorney and his client." At 8:30 a.m. on November 8, the court convened an emergency hearing on the motion.
Although Noriega's motion for injunction was limited to privileged attorney-client conversations, it was also Noriega's position that he had not waived the privilege with respect to any of his conversations with his defense team. On the subject of waiver, the government stated that each inmate at MCC is given a handbook which explains that all of the inmate's conversations are subject to monitoring and tape-recording. The government also submitted in evidence a document, signed by Noriega, explaining that an inmate's telephone calls are monitored for security reasons and that the inmate acknowledges receipt of this information. Additionally, the government submitted in evidence a photograph of a sticker on the bottom of Noriega's telephone. According to the government, the language on the sticker, which is indecipherable from the photograph provided, states that calls on that particular phone are subject to monitoring. However, the government also stated that MCC's policy was not to monitor or record conversations which MCC knew to be private attorney-client communications. Moreover, the document or `acknowledgement' signed by Noriega does not on its face evidence any waiver of the attorney-client privilege but rather supports the opposite conclusion that Noriega intended to preserve this confidentiality, as indicated by the following language: "Las llamadas a un abogado, hechas como los reglamentos indican, no seran monitorizadas." ("Calls to an attorney, made according to the rules, will not be monitored."). Further, defense counsel stated that it is apparent to Noriega's guards when Noriega is calling his attorney's office because the guard not only places the call but also hears defense counsel's secretary answer "law office" before handing Noriega the receiver. Defense counsel also stated that the associate warden at MCC assured him that maintaining attorney-client confidentiality would be "no problem" because, in maintaining a phone log, prison guards can determine whether Noriega is calling his attorneys as opposed to third parties.
Because a determination of whether the attorney-client privilege was waived as to any particular communication would have necessitated an extensive evidentiary hearing which would in turn have required a restraint on CNN's broadcast longer than the court was willing to impose, the court assumed for the purposes of the motion that Noriega had not waived the attorney-client privilege with respect to any conversation with any member of his defense team. This assumption under which the court proceeded was made clear to the parties both at hearing and in the court's subsequent orders.
At the conclusion of the 8:30 hearing on November 8, the court entered an oral order enjoining CNN from broadcasting any of Noriega's privileged attorney-client communications until 6:00 p.m. on that same day. The court subsequently entered a written memorandum order and supplemental order extending the injunction for ten (10) days or such lesser time as needed for the court to review the tapes in CNN's possession and make a determination on the merits, and ordering CNN to produce the tapes for the court's review. CNN refused to produce its tapes and appealed the court's orders to the Eleventh Circuit Court of Appeals, arguing that the orders imposed an unconstitutional prior restraint on publication. This court orally stayed the portion of its orders requiring production of the tapes pending the Eleventh Circuit's decision. On November 9 and 10, while CNN's appeal was still pending before the Eleventh Circuit, CNN repeatedly broadcast the attorney-client conversation identified by Rubino, and which CNN had refused to permit the court to review. As was indicated in Noriega's motion, the conversation in fact involved discussion of potential witnesses in the government's case against Noriega. On November 10, the Eleventh Circuit upheld the restraining orders entered by this court. CNN then filed an application to stay the restraining orders and a petition for writ of certiorari with the Supreme Court. This court then entered another order continuing its restraint on CNN's broadcast of Noriega's attorney-client conversations, and staying the portion of its orders requiring production of the tapes, until the Supreme Court's disposition and this court's opportunity to implement that disposition. On November 18th, the Supreme Court denied CNN's application to stay the restraining orders and petition for a writ of certiorari. Two days later, on November 20th, CNN produced the tapes for the court's review.
Because the recordings delivered to the court were contained on videotape rather than audio cassettes, special equipment had to be brought in before the official translator could begin the process of transcription and translation. The tapes were subsequently transcribed in Spanish and translated from Spanish to English, a process which took all of six days because of the technical problems involved. The English translation was then submitted to Magistrate William C. Turnoff on November 27th for review and report and recommendation to the court. On the same day he received the transcript, the magistrate prepared and submitted his report and recommendation. The following day, November 28th, this court, having reviewed the transcripts1 and the magistrate's report, convened a hearing on the merits of Noriega's motion for an injunction.
Prior to the hearing, copies of the English transcript were made available to Noriega's counsel, attorneys for CNN, and a team of U.S. attorneys established for the purpose of facilitating government representation on all matters relating to CNN's tapes without involving members of the prosecution team. CNN had opposed allowing Noriega's counsel and the government to review the transcripts. This objection was overruled by the court, which determined that Noriega and the government would need to know the exact contents of the conversations in order to meet the heavy burden of proving that publication would so damage Noriega's right to a fair trial that a prior restraint was justified. In addition, Noriega's counsel was permitted to meet with the magistrate in the presence of a court reporter, in camera and ex parte, prior to submission of the magistrate's report and recommendation, to convey the significance, if any, of any trial strategy discussed in any attorney-client conversation.
The court, anticipating that attorney-client conversations other than that already broadcast by CNN might contain discussions of Noriega's trial strategy and confidences, and foreseeing sequestration of the prosecution as an alternative to a prior restraint, instructed the prosecutors on November 21st to begin sequestration of the entire prosecution team. The prosecutors had already insulated themselves from exposure to CNN's broadcasts and...
To continue reading
Request your trial
-
State-Record Co., Inc. v. State, STATE-RECORD
... ... 427 U.S. at 552-53, 96 S.Ct. at 2800, 49 L.Ed.2d at 694 (emphasis supplied) (citing Sheppard v. Maxwell, 384 U.S. [332 S.C. 353] 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966)). See also Noriega, 752 F.Supp. at 1049-51 ... Citing Learned Hand, 13 Nebraska Press established a three-prong balancing test to determine whether a prior restraint is justified: ... 1. The nature and extent of pretrial publicity; ... 2. Whether other ... ...
-
STATE RECORD CO., INC. v. State
... ... 427 U.S. at 552-53, 96 S.Ct. at 2800, 49 L.Ed.2d at 694 (emphasis supplied) (citing Sheppard v. Maxwell, 384 U.S. 332 S.C. 353 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966)). See also Noriega, 752 F.Supp. at 1049 -51 ... Citing Learned Hand, 13 Nebraska Press established a three-prong balancing test to determine whether a prior restraint is justified: ... 1. The nature and extent of pretrial publicity; ... 2. Whether other measures would be likely to mitigate ... ...
-
Post-Newsweek Stations Orlando v. Guetzloe
...Appellee claims that the disclosure might jeopardize his right to a fair trial in a criminal proceeding. See, e.g., United States v. Noriega, 752 F.Supp. 1045 (S.D.Fla.1990) (noting injunction against publication of protected communications might be appropriate to protect accused right to f......
-
Phx. Newspapers, Inc. v. Otis
...127 L.Ed.2d 358 (1994) (declining to rely on speculative predictions as grounds justifying a prior restraint); United States v. Noriega , 752 F.Supp. 1045, 1054 (S.D. Fla. 1990) ("If nothing else, Nebraska Press stands for the proposition that speculative harm falls well short of the showin......