U.S. v. Anderson

• Decision Date: 04 September 1986
• Docket Number: No. 86-3034,86-3034
• Citation: 799 F.2d 1438
• Parties: , 55 USLW 2191, 21 Fed. R. Evid. Serv. 988, 13 Media L. Rep. 1321 UNITED STATES of America, Plaintiff-Appellee, v. Fred ANDERSON, et al., Defendants, The Tribune Company, Petitioner-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1438

799 F.2d 1438

55 USLW 2167, 55 USLW 2191, 21 Fed.

R. Evid. Serv. 988,

13 Media L. Rep. 1321

UNITED STATES of America, Plaintiff-Appellee, v. Fred ANDERSON, et al., Defendants The Tribune Company, Petitioner-Appellant.

No. 86-3034.

United States Court of Appeals Eleventh Circuit.

Sept. 4, 1986.

Gregg D. Thomas, Holland & Knight, Tampa, Fla., for petitioner-appellant.

Robert W. Merkle, U.S. Atty., Tampa, Fla., Karen Skrivseth, U.S. Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before TJOFLAT and KRAVITCH, Circuit Judges, and DUMBAULD ^*, Senior District Judge.

TJOFLAT, Circuit Judge:

I.

On May 23, 1985, a federal grand jury in the Middle District of Florida returned a forty-five count, 166-page indictment against thirty defendants. The indictment charged that the Board of County Commissioners of Hillsborough County, Florida was an "enterprise" within the meaning of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. Secs. 1961-1968 (1982), and that the defendants, who included three county commissioners and various construction contractors, real estate developers, suppliers, and lawyers, conspired to conduct and did conduct the affairs of the board through a pattern of bribery. In essence, the indictment alleged that a significant portion of local government in Hillsborough County had been corrupted.

Although the indictment named several participants in the acts of bribery who were not indicted, it also made references to participants who were neither indicted nor named. Most of the defendants filed motions for a bill of particulars that would identify those unnamed and unindicted participants, and some of the defendants also filed motions for pretrial notice of the Government's intention to use "similar act" evidence under Fed.R.Evid. 404(b). Those motions were granted by a magistrate.

In compliance with the magistrate's order, the Government filed a bill of particulars and a notice of possible similar acts evidence, but at the same time made in camera ex parte motions to seal the two documents. The motions to seal were granted by the district court, which, relying primarily on United States v. Briggs, 514 F.2d 794 (5th Cir.1975), ¹ found that the publication of the names and possible similar acts evidence might stigmatize the "unindicted co-conspirators" as criminals without the opportunity for vindication.

The bill of particulars and the notice of similar acts evidence filed by the Government never appeared on the court's docket. The motions to seal and the district court's orders sealing those documents also did not appear on the court's docket. And no hearings were held to consider the motions to seal. In short, nothing in the public record indicated that any action had been taken relating to the magistrate's order compelling a bill of particulars and notice of similar acts evidence.

Only through the keen observation of a reporter for The Tampa Tribune did the paper's publisher, The Tribune Company (Tribune), suspect that certain documents marked "in camera" delivered to the office of the clerk by the United States Attorney were the bill of particulars and notice of similar acts and that the court had sealed them. The Tribune then filed a petition for access requesting copies of (1) any motions or memoranda filed seeking production of a bill of particulars in camera; (2) notices of hearing regarding the sealing of the bill of particulars; (3) transcripts of any hearing held to determine whether the bill was to be sealed; and (4) any orders issued by the court limiting public access to the bill of particulars or to other documents. The Tribune also requested a hearing on its petition.

The district court, finding a hearing to be unnecessary, granted the Tribune's petition for access and released two in camera orders in which the court had directed the sealing of the bill of particulars and the notice of similar acts evidence. The court noted that when it issued the orders it had considered the balancing test required by Newman v. Graddick, 696 F.2d 796 (11th Cir.1983), and had determined that the factors in favor of sealing the court documents outweighed the presumption in favor of access to judicial records. The court, however, declined to reveal the Government's motions to seal, stating that "they reveal in part the sealed information and thus releasing the motions would frustrate the Court's Order."

Subsequently, the Tribune filed a second petition for access in which it sought the release of both the bill of particulars and the notice of similar acts evidence; it also renewed its request for the Government's motions to seal those documents and for a hearing. The Tribune argued that the public's constitutional and common law rights to judicial documents outweighed the Government's interest in protecting the due process rights of unindicted participants. The district court denied the petition. Relying on the balancing test of United States v. Briggs, 514 F.2d 794 (5th Cir.1975), the court found that both the harm to persons named in the bill of particulars as "unindicted co-conspirators" and the harm to individuals named in the notice of similar acts evidence outweighed "the public's interest in learning the information before trial."

The Tribune has appealed the district court's order.

II.

Rule 404(b) of the Federal Rules of Evidence provides that evidence of other crimes, wrongs, or acts may be admissible to prove, among other things, motive, opportunity, and intent. Although it is obviously advantageous for defense counsel to determine before trial whether the prosecutor intends to offer similar acts evidence, the rule does not require the government to give notice of its intent to introduce such evidence. 2 J. Weinstein & M. Berger, Weinstein's Evidence p 404 (1985). The absence of a mandatory notice requirement does not, however, preclude the prosecution from voluntarily giving notice of similar acts evidence. Id. Nor is the trial judge prevented from requiring disclosure of similar acts evidence in compliance with a pretrial Omnibus Hearing procedure consented to by the parties. See United States v. Jackson, 621 F.2d 216, 220 (5th Cir.1980); see also 2 A.B.A., Standards for Criminal Justice ch. 11 (2d ed. 1980); Clark, The Omnibus Hearing in State and Federal Courts, 59 Cornell L.Rev. 761 (1974). A defense motion for pretrial notice of similar acts evidence is thus merely akin to a request for voluntary discovery.

In this case, when the Government filed the notice of possible similar acts evidence along with a motion to seal the document, it, in effect, had voluntarily agreed to provide the information on the condition that the defendants not reveal the notice's contents to the public or to the press. Simply because the Government filed the notice in compliance with a court order does not make the notice information something other than voluntary discovery. ² The question then becomes whether the Tribune is entitled to view a discovered document describing possible similar acts evidence.

The Supreme Court has stated that the "First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally." Branzburg v. Hayes, 408 U.S. 665, 684, 92 S.Ct. 2646, 2658, 33 L.Ed.2d 626 (1972) (plurality) (citations omitted); see also Pell v. Procunier, 417 U.S. 817, 833-34, 94 S.Ct. 2800, 2810, 41 L.Ed.2d 495 (1974). Thus, the press' right of access to discovered material turns on the public's right of access.

Discovery is neither a public process nor typically a matter of public record. Historically, discovery materials were not available to the public or press. See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 32-34, 104 S.Ct. 2199, 2207-08, 81 L.Ed.2d 17 (1984) (pretrial interrogatories and depositions "were not open to the public at common law"); Gannett Co. v. DePasquale, 443 U.S. 368, 396, 99 S.Ct. 2898, 2914, 61 L.Ed.2d 608 (1979) (Burger, C.J., concurring) ("[I]t has never occurred to anyone, so far as I am aware, that a pretrial deposition or pretrial interrogatories were other than wholly private to the litigants."). Moreover, documents collected during discovery are not "judicial records." Discovery, whether civil or criminal, is essentially a private process because the litigants and the courts assume that the sole purpose of discovery is to assist trial preparation. That is why parties regularly agree, and courts often order, that discovery information will remain private. Marcus, Myth and Reality in Protective Order Litigation, 69 Cornell L.Rev. 1, 15 (1983).

If it were otherwise and discovery information and discovery orders were readily available to the public and the press, the consequences to...