U.S. v. Andreas, No. 98-1441

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtPER CURIAM
Citation150 F.3d 766
Decision Date27 July 1998
Docket NumberNo. 98-1441
Parties26 Media L. Rep. 2143 UNITED STATES of America, Plaintiff-Appellee, v. Michael D. ANDREAS, et al., Defendants-Appellees, Appeal of The NEW YORK TIMES COMPANY and Dow Jones & Company, Inc., Intervenors-Appellants.

Page 766

150 F.3d 766
26 Media L. Rep. 2143
UNITED STATES of America, Plaintiff-Appellee,
v.
Michael D. ANDREAS, et al., Defendants-Appellees,
Appeal of The NEW YORK TIMES COMPANY and Dow Jones &
Company, Inc., Intervenors-Appellants.
No. 98-1441.
United States Court of Appeals, Seventh Circuit.
Argued June 4, 1998.
Decided July 27, 1998. *

Philip A. Guentert, Office of the United States Attorney, Criminal Division, Chicago, IL, Marion L. Jetton, Department of Justice, Antitrust Division, Appellate Section, Washington, DC, John J. Powers (argued), United States Department of Justice, Antitrust Division, Washington, DC, for Plaintiff-Appellee.

James D. Miller (argued), King & Spalding, Washington, DC, James T. Phalen, King & Spalding, Washington, DC, Joseph J. Duffy, Stetler & Duffy, Chicago, IL, Kristina M.L. Anderson, Fishman, Merrick, Miller, Genelly, Springer, Klimek & Anderson, Chicago, IL, for Defendants-Appellees.

Michael M. Conway (argued), J. Mark Powell, Hopkins & Sutter, Chicago, IL, for Intervenors-Appellants.

Before: COFFEY, FLAUM, and ROVNER, Circuit Judges.

PER CURIAM.

The New York Times Company and Dow Jones & Company (collectively, "the newspapers"), appeal from an order entered by the district court denying in part their motion to make public certain papers and materials related to the criminal prosecution of Michael D. Andreas and Terrance S. Wilson. Andreas and Wilson, both of whom were officers of the Archer Daniels Midland Company (ADM), were indicted along with others in December 1996 on charges of price fixing in the lysine market, a protein additive for poultry and swine feed, in violation of Section 1 of the Sherman Act. Their trial in this widely-publicized case currently is ongoing.

During the course of pretrial discovery, the district court entered two protective orders permitting limited disclosure of otherwise privileged or confidential materials for the purpose of the parties' trial preparation. The protective orders cover grand jury materials, including grand jury testimony, documents

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produced in grand jury investigations pursuant to subpoena, and other documents considered by the grand jury. In addition, the orders provide that surveillance tapes purportedly made pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520, are confidential, and the orders preclude disclosure of materials relating to ADM's confidential business information and trade secrets, as well as materials relating to the Government's investigation of the citric acid market. Pursuant to these protective orders, the parties to the criminal case filed numerous documents under seal. In addition, the defendants filed pretrial motions under seal, many of which were accompanied by supporting exhibits. The Government's responsive memoranda in opposition to these pretrial motions were also filed under seal.

In September 1997, The New York Times Company filed a motion, subsequently joined by Dow Jones & Company, to intervene in the criminal case in order "to secure public disclosure of documents filed under seal and to modify protective orders." 1 The newspapers' motion listed, by docket number, the documents that had been filed under seal, asserted that the wholesale filing under seal of pretrial motions conflicts impermissibly with the presumption of public access to criminal proceedings, and contended that the district court "must evaluate the specific sealed materials to determine that the 'sealing' is not over-inclusive." The motion also requested that the district court modify the protective order to allow the parties "to file any portions of pleadings under seal only upon a particularized showing to the Court that the need for secrecy overcomes the constitutional and common-law privilege of public access."

The supporting memorandum of law filed by the newspapers made two arguments relating to the disclosure of sealed materials. The first argument--captioned "The Requested Materials Should be Disclosed in Balancing the Constitutional and Common Law Rights to Access"--discussed the public's right to attend criminal trials, a right that is rooted in both the First Amendment and the common law, see, e.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980); Grove Fresh Distribs., Inc. v. Everfresh Juice Co., 24 F.3d 893, 897 (7th Cir.1994), as well as a presumed right of access to pretrial proceedings and documents, see, e.g., Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986). This section of the memorandum argued, then, that there is a general presumption of access to pretrial documents.

The second argument contained in the newspapers' memorandum was captioned "The Seventh Circuit Has Held That Wholesale Sealing of Briefs is Improper." This argument asserted that this Court disfavors the wholesale filing of briefs and motions under seal, in light of the general presumption that judicial proceedings are open to the public. Because only information that is justifiably confidential should be filed under seal, the memorandum argued, the parties were exceeding the permissible scope of the protective orders by filing entire documents under seal.

In response to the newspapers' motion, Andreas and Wilson filed a motion in opposition in which they argued that most of the...

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20 practice notes
  • Associated Press, In re, Nos. 98-1267
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • December 7, 1998
    ...is by permitting those who oppose the suppression of the material to intervene for that limited purpose. See United States v. Andreas, 150 F.3d 766, 767 (7th Cir.1998) (per curiam) (noting that the newspapers had intervened in the underlying action in order to assert the right of access to ......
  • U.S. v. Kirschenbaum, Nos. 98-1591
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • December 23, 1998
    ...we have consistently held that such passing references to an argument did not adequately raise the issues. E.g., United States v. Andreas, 150 F.3d 766, 769-70 (7th Cir.1998) ("perfunctory and undeveloped arguments (even constitutional ones) are waived"). And Mr. Kirschenbaum seems not to h......
  • U.S. v. Bernhoft, Case No. 08-C-0515.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
    • October 28, 2009
    ...to Enforce 2.) The Court will not entertain defenses made without support of legal authorities or arguments. See United States v. Andreas, 150 F.3d 766, 769 (7th Cir.1998) ("We have held time and again that perfunctory and undeveloped arguments (even constitutional ones) are waived.") (cita......
  • U.S. v. McGee, No. 01-2493.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • July 20, 2005
    ...develop arguments with respect to the other alleged instances of misconduct results in waiver of those claims. United States v. Andreas, 150 F.3d 766, 769 (7th Cir.1998). Notwithstanding the waiver problem, many of the actions that Smith challenges, such as the prosecutor's facial expressio......
  • Request a trial to view additional results
20 cases
  • Associated Press, In re, Nos. 98-1267
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • December 7, 1998
    ...is by permitting those who oppose the suppression of the material to intervene for that limited purpose. See United States v. Andreas, 150 F.3d 766, 767 (7th Cir.1998) (per curiam) (noting that the newspapers had intervened in the underlying action in order to assert the right of access to ......
  • U.S. v. Kirschenbaum, Nos. 98-1591
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • December 23, 1998
    ...we have consistently held that such passing references to an argument did not adequately raise the issues. E.g., United States v. Andreas, 150 F.3d 766, 769-70 (7th Cir.1998) ("perfunctory and undeveloped arguments (even constitutional ones) are waived"). And Mr. Kirschenbaum seems not to h......
  • U.S. v. Bernhoft, Case No. 08-C-0515.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
    • October 28, 2009
    ...to Enforce 2.) The Court will not entertain defenses made without support of legal authorities or arguments. See United States v. Andreas, 150 F.3d 766, 769 (7th Cir.1998) ("We have held time and again that perfunctory and undeveloped arguments (even constitutional ones) are waived.") (cita......
  • U.S. v. McGee, No. 01-2493.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • July 20, 2005
    ...develop arguments with respect to the other alleged instances of misconduct results in waiver of those claims. United States v. Andreas, 150 F.3d 766, 769 (7th Cir.1998). Notwithstanding the waiver problem, many of the actions that Smith challenges, such as the prosecutor's facial expressio......
  • Request a trial to view additional results

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