N. Jersey Media Grp. Inc. v. United States

• Decision Date: 07 September 2016
• Docket Number: No. 16–2431,16–2431
• Court: U.S. Court of Appeals — Third Circuit
• Parties: North Jersey Media Group Inc, Publishers of Northjersey.com as well as The Record and The Herald News; Bloomberg LP, The owner and operator of Bloomberg News; NBCUniversal Media LLC, doing business as WNBC TV Channel 4 ; The New York Times Company; New Jersey Advanced Media, Publishers of NJ.com; Dow Jones & Company, Inc., The publisher of the Wall Street Journal; The Associated Press; Public Media NJ, Inc, doing business as NJTV ; New York Public Radio; American Broadcasting Companies, Inc.; Philadelphia Media Network, PBC; Politico v. United States of America; William E. Baroni, Jr.; Bridget Anne Kelly; The Port Authority of New York and New Jersey John Doe, Appellant

836 F.3d 421

North Jersey Media Group Inc, Publishers of Northjersey.com as well as The Record and The Herald News; Bloomberg LP, The owner and operator of Bloomberg News; NBCUniversal Media LLC, doing business as WNBC TV Channel 4 ; The New York Times Company; New Jersey Advanced Media, Publishers of NJ.com; Dow Jones & Company, Inc., The publisher of the Wall Street Journal; The Associated Press; Public Media NJ, Inc, doing business as NJTV ; New York Public Radio; American Broadcasting Companies, Inc.; Philadelphia Media Network, PBC; Politico

v. United States of America; William E. Baroni, Jr.; Bridget Anne Kelly; The Port Authority of New York and New JerseyJohn Doe, Appellant

No. 16–2431

United States Court of Appeals, Third Circuit.

Argued June 6, 2016

Filed September 7, 2016

Jenny R. Kramer [ARGUED], Chadbourne & Parke, 1301 Avenue of the Americas, New York, NY 10019, Counsel for Intervenor–Appellant, John Doe

Bruce S. Rosen [ARGUED], McCusker Anselmi Rosen & Carvelli, 210 Park Avenue—Ste. 301, Florham Park, NJ 07932, Counsel for Appellees, North Jersey Media Group Inc., Bloomberg LP, NBC Universal Media LLC, DBA WNBC TV Ch 4, New York Times Co., Dow Jones & Co. Inc., Associated Press, Public Media NJ Inc., DBA NJTV, New York, Public Radio, American Broadcasting Co. Inc., Politico, and Philadelphia Media Network PBC

Lee M. Cortes, Jr., Mark E. Coyne, David W. Feder, Paul J. Fishman [ARGUED], J. Fortier Imbert, Vikas Khanna, Office of United States Attorney, 970 Broad Street—Rm. 700, Newark, NJ 07102, Counsel for Appellee, United States of America

Michael A. Baldassare, Dillon H. Malar, Jennifer Mara, Badlassare & Mara, 570 Broad St.—Ste. 900, Newark, NJ 07102, Counsel for Defendant, William E. Baroni, Jr.

Michael D. Critchley, Critchley Kinum & Vazquez, 75 Livingston Avenue—3rd Fl., Roseland, NJ 07068, Counsel for Defendant, Bridget Anne Kelly

David R. Kromm, Port Authority of New York & New Jersey, 4 World Trade Center, 150 Greenwich St., New York, NY 10007, Counsel for Defendant, Port Authority, of New York and New Jersey

Before: AMBRO, JORDAN, and SCIRICA, Circuit Judges.

OPINION OF THE COURT

JORDAN

, Circuit Judge.

For five days in September 2013, lane closures on the George Washington Bridge caused extraordinary traffic jams in Fort Lee, New Jersey. The closures were allegedly orchestrated as revenge against the Mayor of Fort Lee for his refusal to endorse New Jersey Governor Christopher J. Christie in the Governor's bid for reelection. Political and legal consequences of the supposed retaliation have been extensively covered in local and national media, and, as if by some public reflex, the scandal has acquired a name with a “-gate” suffix, being widely known as “Bridgegate.”

This appeal concerns the efforts of a “John Doe” to avoid being publicly identified as an unindicted coconspirator in the criminal case that federal prosecutors have brought against certain New Jersey government officials involved in Bridgegate. A consortium of media groups took legal steps to force the disclosure of a letter, authored by one of the prosecutors, that purportedly identifies unindicted coconspirators, and the District Court ordered the letter to be disclosed. Doe intervened and sought to block public access to the letter. The Court denied his request and again ordered that it be disclosed. Doe appealed, and we granted an emergency motion for a stay and for expedited consideration of this appeal.

Although the appeal arises out of a matter of high public interest, the issue presented is basic and undramatic. We must decide whether the letter is more akin to a bill of particulars or to a discovery disclosure in a criminal case. That distinction is dispositive, because the former is subject to a recognized right of public access while the latter has historically been kept from public view. See United States v. Smith , 776 F.2d 1104 (3d Cir. 1985)

. Because we conclude that the letter in question is a part of the general discovery process, it is not subject to any First Amendment or common law right of public access, and we will vacate the District Court's order insofar as it requires the letter to be publicly disclosed.

I. BACKGROUND

On April 23, 2015, a grand jury returned a nine-count indictment against William E. Baroni Jr. and Bridget Anne Kelly based on the Bridgegate political payback scheme. See United States v. Baroni , No. 15–cr–193, 2015 WL 2127949 (D.N.J. filed Apr. 23, 2015).¹

With the exception of Count 9, the indictment alleges that Baroni and Kelly committed their offenses with unidentified “others.” The only other individual identified by name in that indictment is David Wildstein, who has already pled guilty in a separate criminal case to two charges arising from Bridgegate. See

United States v. Wildstein , No. 15–cr–209 (D.N.J. filed May 1, 2015). Wildstein is awaiting sentencing. The charges against Baroni and Kelly are still pending.

Following their indictment, Baroni and Kelly filed omnibus motions for discovery of certain information.² They also filed motions for a bill of particulars,³ seeking the identity of the unindicted co-conspirators referenced as “others” in the indictment. Specifically, Kelly asked that the government be ordered to provide “the identities of any and all undisclosed or unindicted co-conspirators, aiders and abettors, and/or any other individuals involved in any and all alleged criminal activity.” (A–107.) Baroni likewise sought the identity “of all unindicted co-conspirators,” as well as “the names of the ‘others' referred to in the Indictment.” (A–115.)

The government opposed those requests. It argued that the motions for a bill of particulars should be denied because voluminous discovery and the detailed indictment had already given the defendants more than enough information about the criminal charges to allow them to prepare a defense. In the government's view, the defendants were “ask[ing] the United States to reveal much of its trial strategy and prematurely commit to specific evidentiary proofs.” (A–136.) Nevertheless, the government said that it would, “in a document to be filed under seal, identify any other individual about whom [it] has sufficient evidence to designate as having joined the conspiracy.” (A–141.)

On January 11, 2016, as promised, the government produced to the defendants the “Conspirator Letter,” revealing the names of any individuals the government regarded as having joined the conspiracy. At the same time, while it did not make a formal motion to seal the Letter, the government sent a copy to the chambers of the judge presiding in the case and “ask[ed] the Court to permanently shield its disclosure from public view given the ‘sensitive nature’ of the information contained therein.” (A–148.)⁴ The Letter was not, it seems, ever filed with the Clerk of the District Court. The day after submission of the Conspirator Letter, Baroni objected to its being sealed and the manner in which the government had submitted it to the Court.

The government filed a response to Baroni's objection. In requesting that the Conspirator Letter be kept under seal, the government cited a set of Department of Justice instructions called the “U.S. Attorney's Manual,” which directs prosecutors to “avoid unnecessary public references to wrongdoing by uncharged third-parties.” (A–150.) While it thus justified maintaining the Letter's secrecy, the government at the same time recognized that the Court might later be required to rule on a request for public disclosure. “As is always the case,” the government said, “if Baroni, Kelly, or the [g]overnment articulates a sufficient reason for unsealing [the Letter] at any point in the prosecution, the Court then will address that issue.” (A–151.) The government summed up its position by saying, “[o]ur request that the Court maintain the [g]overnment's letter and its contents under seal is consistent with departmental guidance, decisional law, and the common sense proposition that publicizing allegations of wrongdoing by uncharged third parties should be avoided.” (A–152.)

The District Court never issued an order directing the government to file a bill of particulars. After the Conspirator Letter was provided to the defense, a hearing was held to address any lingering issues from the omnibus motions. Baroni's counsel indicated that his request for information about unindicted co-conspirators was “still alive, but because of other motions that are pending, [he could not] talk about it [at that time].” (A–166.) The Court noted that it did not need to rule on any motions “unless [the parties] ha[d] an issue going forward.” (A–165.) No further discussion was dedicated to the subject. Immediately after the hearing, the District Court issued an order granting additional relief on the defendants' various motions, but it also ordered “that the remainder of [d]efendants' Discovery Motions”—which included the motions for a bill of particulars—“are DISMISSED AS MOOT as per counsels' representations and the discussion on the record.” (A–184 (original emphasis).)

Meanwhile, “[s]hortly after the [g]overnment represented that it would produce the Conspirator Letter to the defendants, the media began reporting about” its existence. (Opening Br. at 10.) On January 13, 2016—two days after the government gave the Letter to the defendants—a consortium of news organizations (collectively, “the Media”)⁵ filed a motion to intervene in the criminal case and for access to the Letter.⁶ Among other things, the Media sought “[t]he [g]overnment's response to a Motion for a Bill of Particulars, including a list of unindicted co-conspirators emailed to the Court and Defense counsel on January 11, 2016.” Notice of Motion to Intervene and for Other Relief at 2, N. Jersey Media Grp. Inc. v. United States , No. 16–cv–267 (D.N.J. Jan. 13, 2016), ECF No. 1.

The government, consistent with its request that the Letter be maintained under seal, did not oppose the Media's intervention...