Applications of Kansas City Star, s. 81-1744
| Citation | 666 F.2d 1168 |
| Decision Date | 14 December 1981 |
| Docket Number | 81-1765,Nos. 81-1744,s. 81-1744 |
| Parties | 7 Media L. Rep. 2353 In re Applications of KANSAS CITY STAR; American Broadcasting Companies; Columbia Broadcasting Systems. Appeal of Allen DORFMAN and Roy L. Williams. In re Application of KANSAS CITY STAR; American Broadcasting Companies; Columbia Broadcasting Systems. Appeal of Nick CIVELLA. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Lionel Kestenbaum, Angus Macbeth, Ronald W. Kleinman, argued, Bergson, Borkland, Margolis & Adler, Washington, D. C., for American Broadcasting Companies, Inc.; Thomas M. Bradshaw, Hoskins, King, McGannon, Hahn & Hurwitz, Kansas City, Mo., of counsel.
Robert S. Whiteside, Kansas City, Mo., for The Kansas City Star Co. John T. Martin, argued, Sam L. Colville, Shook, Hardy & Bacon, Kansas City, Mo., for CBS Inc.
Albert E. Jenner, Jr., argued, Michael J. Rovell, Jeffrey D. Colman, Linda L. Listrom, Robert M. Mendillo, Jenner & Block, Chicago, Ill., for objector- appellant Allen M. Dorfman.
Thomas A. Wadden, Jr., Washington, D. C., for objector-appellant Roy L. Williams.
Before BRIGHT, Circuit Judge, GIBSON, Senior Circuit Judge, and ROSS, Circuit Judge.
This appeal involves the review of an order of the district court, 1 --- F.Supp. ----, which granted public access to various wiretap and electronic surveillance applications, underlying affidavits, exhibits and attachments. We hold that Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520 (Title III) requires that the documents in question must be maintained under seal and the district court's order granting public access to the records must be vacated.
Background.
While the facts of this case are quite lengthy, our decision regarding the application of Title III rests heavily on this specific factual setting:
On April 20, 1981, the government moved to revoke the bonds pending appeal of Nicholas Civella and Peter Tamburello. 2 The government alleged that Civella and Tamburello had violated the conditions of their release by repeatedly associating with convicted felons and, in addition, alleged that there was a substantial risk that Civella would flee during the pendency of his appeal. The government based the second allegation on a conversation between Civella and George Chiavola which was intercepted under court authorization while Civella was incarcerated on a prior conviction at the United States Penitentiary in Leavenworth, Kansas. The conversation was intercepted on February 4, 1980, and involved a discussion of the possibility of obtaining false identification and travel documents for Civella if he received a long prison sentence on other crimes.
In response to the motion of the government, Civella moved to discover all the documents and tapes associated with or related to the electronic surveillance order in question, Misc. No. 80-WT-1, issued by the Honorable Earl E. O'Connor in the United States District Court for the District of Kansas.
On May 12, 1981, the government responded to the discovery motion by listing the documents associated with the order issued in Misc. No. 80-WT-1 and stating that it would not oppose Civella's motion to unseal and permit access to those documents still held under seal by the Federal District Court in Kansas. The list of associated documents provided by the government included the applications, affidavits and orders relating to five previous surveillance orders on Civella while he was at Leavenworth. The list also included references to affidavits attached as exhibits to the applications and relied upon in issuing those surveillance orders at Leavenworth. The government response referred to these affidavits not only as exhibits attached to the Leavenworth surveillance applications but also listed other wiretap or electronic surveillance orders to which the affidavits were related. The other surveillance orders were listed as having been authorized on various Teamster Union offices and, among others, on the home and office of Roy L. Williams, who was subsequently elected national president of the Teamster Union.
On May 20, 1981, the government filed a motion to unseal the documents in the United States District Court for the District of Kansas. Judge O'Connor ordered that the documents be unsealed, copied and transferred in camera, to Judge Wright in the Western District of Missouri "for further use as deemed appropriate" in the bond revocation proceedings. Judge O'Connor ordered that the original documents then be resealed and also ordered the tapes of intercepted communications "presently filed under seal in this Court * * * be made accessible * * * " to Judge Wright.
On May 21, 1981, Judge Wright granted Civella's discovery motion and ordered that Civella and his attorneys be given access to all the documents and be given a copy of the tape recording of the February 4, 1980 intercepted communication. Civella and his attorneys were forbidden from disclosing or disseminating the documents or their contents without the express written order of the court.
On May 28, 1981, the Kansas City Star Company filed an application for access to the documents and tape made available to Civella. The application for access was based solely on a common law right to inspect judicial records. The Kansas City Star was candid with the district court as to its reasons for seeking access to the records. The reasons stated in the application were that Roy L. Williams was the interim president of the Teamsters and would probably be elected president on June 1, 1981. Therefore, the news media was interested in information on a relationship between Williams and Nicholas Civella, a reputed organized crime figure. On June 3, 1981, the American Broadcasting Companies, Inc. (ABC) also applied for access to the documents and tape.
On June 9, 1981, the attorney for Roy L. Williams sent the district court a letter concerning the news media's application for access. Counsel stated that he was aware of the bond revocation hearing scheduled for June 13, 1981, and was ready to appear at the hearing. Specifically, counsel argued that under Title III, Williams was entitled to ten days notice prior to any use of the interceptions at the hearing (18 U.S.C. § 2518(9)) and should be given the opportunity to inspect the documents. Counsel also argued that Williams was an "aggrieved person" under Title III (18 U.S.C. § 2510(11)) who had the right to move to suppress the contents of any such communication or evidence derived therefrom before its use in court. Counsel stated in regard to the news media's application for access that he was unaware of any provision of Title III which would authorize such disclosure. On June 10, 1981, the attorney for Allen M. Dorfman also wrote the district court regarding the news media's application and essentially alleged that Dorfman had the same rights as Williams and made a request that Dorfman be given access to the documents. Accompanying the letter was a formal pleading on behalf of both Dorfman and Williams which cited their objections to the media's access application. The pleading noted that the documents in question related mainly to Williams but indicated that Dorfman had received court notice that his telephone conversations had also been intercepted pursuant to the same surveillance authorizations. While the appellants reiterated their alleged rights under Title III, they also contended that the publicity caused by release of the documents might jeopardize their chances for a fair trial on criminal charges pending against them in the United States District Court for the Northern District of Illinois.
On June 13, 1981, the bond revocation hearing was held. Counsel for appellants Dorfman and Williams and counsel for the media applicants were present at the hearing. At the hearing, the government entered all the documents into evidence because Civella's counsel stated that while he would not challenge the legality of the electronic surveillance at the bond revocation hearing, he would not waive Civella's right to do so at some later time. The following portion of the bond revocation hearing transcript contains the total discussion regarding the documents in question:
MRS. JEANS (counsel for the government): At this time, Your Honor, we move into our next area pertinent to this bond revocation matter and that is the matter of an intercepted conversation that occurred at Leavenworth penitentiary on February 4th, 1980.
Pertinent to that particular intercept are files, records, including orders, applications and affidavits and their attachments authorizing this series of court-authorized electronic surveillances in the District of Kansas signed by Judge O'Connor. I know that Judge O'Connor has, pursuant to order, transferred many of those files and records to this court where they are reposited under seal for the use of this Court in these further proceedings.
At this time, Your Honor, we would ask that the Court first take judicial notice of the electronic surveillance orders, applications, affidavits, pertinent paper work, including all attachments submitted in connection with those electronic surveillances, those being denominated as Miscellaneous No. 79-WT-2, 79-WT-4, 79-WT-5, 79-WT-6, 79-WT-7, and 80-WT-1. 3
Also at this time, Your Honor, because these records and documents are relevant and pertinent to this next matter of evidence, we would offer these at this time into evidence.
MR. GOODMAN (counsel for Civella): Your Honor, if it please the Court. The Court has entered an order sealing certain documents. For purposes of these proceedings, I see no reason why that order should not continue.
It's our position, Your Honor, that because of the brevity of time given as far as being able to make a challenge on probable cause grounds and the like and have a full-blown litigated hearing concerning the...
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