U.S. v. Cuthbertson

• Decision Date: 29 May 1981
• Docket Number: Nos. 81-1467,No. 81-1467,Nos. 81-1470,81-1470 and 81-1485,81-1467,s. 81-1470,s. 81-1467
• Citation: 651 F.2d 189
• Parties: 8 Fed. R. Evid. Serv. 458, 7 Media L. Rep. 1377 UNITED STATES of America v. Gerald M. CUTHBERTSON, et al., CBS Inc., Third-Party Witness, Appellant,UNITED STATES of America, Respondent, v. Gerald M. CUTHBERTSON, et al., Respondents, CBS Inc., Petitioner,& 81-1485, Honorable Herbert J. Stern, Nominal Respondent.
• Court: U.S. Court of Appeals — Third Circuit

Page 189

651 F.2d 189

8 Fed. R. Evid. Serv. 458, 7 Media L. Rep. 1377

UNITED STATES of America v. Gerald M. CUTHBERTSON, et al., CBS Inc., Third-Party

Witness, Appellant, No. 81-1467.

UNITED STATES of America, Respondent, v. Gerald M. CUTHBERTSON, et al., Respondents,

CBS Inc., Petitioner, Nos. 81-1470 & 81-1485,

Honorable Herbert J. Stern, Nominal Respondent.

Nos. 81-1467, 81-1470 and 81-1485.

United States Court of Appeals Third Circuit.

Argued April 21, 1981.

Decided May 29, 1981.

Timothy B. Dyk (argued), Michael S. Schooler, Duane D. Morse, David Westin, William J. Perlstein, Richard N. Reback, Wilmer, Cutler & Pickering, Washington, D. C., Clyde A. Szuch, Talbott Miller, Pitney, Hardin & Kipp, Morristown, N. J., for petitioner CBS Inc., Ralph E. Goldberg, Allen Floyd Abrams (argued), Kenneth E. Meister, Carol E. Rinzler, Cahill Gordon & Reindel, New York City, for amici curiae, National Broadcasting Co., Inc., et al.

Shaklan, Richard Altabef, New York City, of counsel.

John J. Barry (argued), Frohling, Fitzpatrick & Barry, Newark, N. J., for appellees-respondents, Paul L. Gorrin, Gerald M. Cuthbertson, Allan G. Gorrin, John Kelmans, Samuel Bauman & Thomas P. DeVita; Joseph T. Afflitto, Wayne, N. J., Andrew R. Jacobs, Basking Ridge, N. J., William J. Martini, Passaic, N. J., Leonard Meyerson, Jersey City, N. J., John W. Noonan, Newark, N. J., of counsel.

William W. Robertson, U. S. Atty., Maryanne Trump Desmond, Asst. U. S. Atty., Newark, N. J., for appellee-respondent, United States of America.

Katharine P. Darrow, Gen. Atty., New York City, Kohn, Savett, Marion & Graf, P. C., Philadelphia, Pa., Debevoise, Plimpton, Lyons & Gates, New York City, for amicus curiae, The New York Times Co.

Before SEITZ, Chief Judge, and ALDISERT and GIBBONS, Circuit Judges.

OPINION OF THE COURT

ALDISERT, Circuit Judge.

We are again faced with free press-fair trial issues arising out of the factual situation presented in United States v. Cuthbertson, 630 F.2d 139 (3d Cir. 1980), cert. denied, 449 U.S. 1126, 101 S.Ct. 945, 67 L.Ed.2d 113 (1981) (Cuthbertson I ). Pursuant to our mandate, the Columbia Broadcasting System, Inc., submitted certain material to the district court for in camera examination. We instructed the district court to review the materials and determine if they would have evidentiary value to the defendants in impeaching government witnesses. The major question for decision in this appeal is whether the district court erred in holding that these materials must be turned over to the defendants as exculpatory evidence under the teachings of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). An initial question is whether we have jurisdiction to consider the court's order as a final order, appealable under 28 U.S.C. § 1291, or on a petition for writ of mandamus under the All Writs Act, 28 U.S.C. § 1651. We conclude that we have appellate jurisdiction over the district court's order, and we reverse and remand for further proceedings.

I.

Because the facts are detailed in Cuthbertson I, we need set forth only a synopsis. On December 3, 1978, CBS presented on its news program "60 Minutes" an investigative report describing fast-food franchising by an organization known as Wild Bill's Family Restaurants. The report was based on interviews with a number of persons, including certain franchisees and former employees of Wild Bill's, and local government officials. On September 5, 1979, a federal grand jury returned an indictment against several principals of Wild Bill's charging them with fraud and conspiracy in the operation of the company. On February 4, 1980, on the eve of trial, the defendants served on CBS a subpoena pursuant to rule 17(c) of the Federal Rules of Criminal Procedure demanding production of all reporters' notes, file "out takes," audiotapes, and transcripts of interviews prepared in connection with the "60 Minutes" program. The district court's denial of CBS's motion to quash the subpoena and its subsequent order holding CBS in contempt were before us in the previous appeal.

In Cuthbertson I, we held that "journalists possess a qualified privilege not to divulge confidential sources and not to disclose unpublished information in their possession in criminal cases." 630 F.2d at 147. We recognized that "compelled production of a reporter's resource materials can constitute a significant intrusion into the newsgathering and editorial processes." Id. We concluded that this qualified privilege may be superseded by "countervailing interests" in particular cases, requiring the district courts to "balance the defendant's need for the material against the interests underlying the privilege ...." Id. at 148.

We also established guidelines for the district courts to use in applying rule 17(c) to subpoenas duces tecum directed to third parties. Rule 17(c) was not intended to be a broad discovery device, and only materials that are "admissible as evidence" are subject to subpoena under the rule. See Bowman Dairy Co. v. United States, 341 U.S. 214, 221, 71 S.Ct. 675, 679, 95 L.Ed. 879 (1951). To obtain pretrial production and inspection of unprivileged materials from a third party witness, a party must show:

"(1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not intended as a general 'fishing expedition.' "

630 F.2d at 145 (quoting United States v. Nixon, 418 U.S. 683, 699-700, 94 S.Ct. 3090, 3103-3104, 41 L.Ed.2d 1039 (1974) (footnote omitted)). Because the district court had ordered in camera review rather than presentation to the moving party, however, we deemed the second and third elements of this test inapplicable. 630 F.2d at 145.

Defendants had requested previous statements by persons whose names did not appear on the government's witness list as well as statements by persons whose names did appear. They asserted no basis for admissibility of the non-witness statements other than a hope that they would contain some exculpatory material. Accordingly, we held the district court's order to be invalid under rule 17(c) to the extent it sought non-witness material. 630 F.2d at 146. We found, however, that statements of persons on the government's witness list may be inconsistent with trial testimony and admissible for impeachment purposes. 630 F.2d at 144. We recognized that "because such statements ripen into evidentiary material for purposes of impeachment only if and when the witness testifies at trial, impeachment statements, although subject to subpoena under rule 17(c), generally are not subject to production and inspection by the moving party prior to trial." Id. Nevertheless, because in camera review would aid the district court's trial preparation, we held that the district court's order to produce statements by witnesses for in camera inspection before trial was not an abuse of discretion under rule 17(c). Id. at 145.

After remand from this court, CBS submitted to the district court for in camera review transcripts and audio tapes of three interviews with two persons whose names appear on the government witness list. After some skirmishing over and a hearing on related matters, the court ruled that the witness statements would materially aid the defendants and therefore would be turned over to them before trial under the rationale of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

The present conflict emerged from that decision. This court had approved in camera inspection of witness statements for the purpose of deciding whether they would have impeachment value; if so, they could be turned over to the defendants during the trial after the particular government witness had testified. On remand, however, the district court determined that these statements could be turned over to the defendants after commencement of trial but before the witnesses testified because they qualified as exculpatory evidence. It entered an order on March 24, 1981, directing disclosure of the materials to defendants on March 30, 1981. The district court's ruling is the subject of the appeal at No. 81-1467 and the mandamus petition at No. 81-1470. On March 25, Judge Gibbons granted a stay of the order, and on March 28, a motions panel consisting of Chief Judge Seitz and Judge Adams extended the stay pending a decision on the merits. The other petition for writ of mandamus, at No. 81-1485, challenges the district court's ruling of March 23, 1981, which required CBS to submit certain non-witness material to enhance intelligibility of the witness statements. Although no formal order directing this submission has been filed, CBS filed this second petition for writ of mandamus on March 28.

II.

We address first the appealability of the proceedings at No. 81-1467. Apart from the necessity of establishing our jurisdiction, we must determine whether we may hear the case as an appeal from a final order or on original review of a petition for writ of mandamus. The distinction is one with a difference. On appeal, our scope of review is plenary: we review the court's choice, interpretation, and application of a legal precept. If an exercise of discretion by the district court is challenged, we determine whether the discretion was abused. If facts found by the trial court are controverted, we apply the "clearly erroneous" rule. By contrast, the peremptory writ of mandamus has generally been used to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it has a duty to do so. An arbitrary and technical definition of "jurisdiction" has been avoided...