U.S. v. Kemp

• Decision Date: 21 January 2005
• Docket Number: Criminal Action No. 04-370.
• Parties: UNITED STATES of America, v. Corey KEMP, et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

365 F.Supp.2d 618

UNITED STATES of America, v. Corey KEMP, et al.

Criminal Action No. 04-370.

United States District Court, E.D. Pennsylvania.

January 21, 2005.

COPYRIGHT MATERIAL OMITTED

Christopher G. Furlong, Media, PA, Lloyd G. Parry, Michael J. McGovern, William R. Spade, Jr., Philadelphia, PA, for Corey Kemp.

Kevin H. Marino, Newark, NJ, for Glenn K. Holck.

Lawrence S. Lustberg, Newark, NJ, for Stephen M. Umbrell.

Anthony T. Chambers, Detroit, MI, Lewis Myers, Jr., Chicago, IL, Nathaniel E. Jones, Jr., Baltimore, MD, for Lavan Hawkins.

Nino V. Tinari, Philadelphia, PA, for Janice Renee Knight.

Catherine M. Recker, Lisa A. Mathewson, Philadelphia, PA, for Charles Lecroy.

Thomas H. Suddath, Jr., Lathrop B. Nelson, III, Philadelphia, PA, for Anthony C. Snell.

Jeffrey M. Lindy, Joel Harvey Slomsky, Philadelphia, PA, for Francis D. McCracken.

Joseph P. Grimes, Philadelphia, PA, for Rhonda M. Anderson.

Michael A. Schwartz, Richard J. Zack, Robert A. Zauzmer, Catherine Votaw, Joseph F. Minni, William B. Carr, Jr., Joan L. Markman, Philadelphia, PA, for United States of America.

MEMORANDUM

BAYLSON, District Judge.

The issue presented is whether the Court should vacate its July 23, 2004 protective order precluding disclosure of Title III materials and/or unseal the pre-trial motions of Defendants Glenn Holck and Stephen Umbrell, which include as exhibits, numerous transcripts of Title III intercepted communications and/or grand jury materials.

A. Background

On June 29, 2004, the grand jury returned a 56-count indictment in this matter charging some of the 12 defendants with conspiracy to commit honest services mail and wire fraud, mail and wire fraud, and other defendants with making false statements to the FBI, perjury, extortion, making false statements to obtain a loan, money laundering, and filing a false federal income tax return. To date, five defendants have entered guilty pleas, and one defendant has died.

The indictment focuses on allegations of a conspiracy centered around former Philadelphia City Treasurer, Defendant Corey Kemp, alleging that he agreed with several individuals to give them favored treatment in the awarding of city contracts in return for political contributions and personal gratuities. As such, the indictment makes serious charges concerning corruption in the highest levels of Philadelphia's city government.

Defense counsel requested discovery from the government, and the government responded by making available virtually the entirety of its investigatory materials, including Title III materials, grand jury transcripts, FBI statements, etc., as previously reviewed in detail in prior Memoranda by this Court. However, on July 23, 2004, the Court entered, at the government's request, a protective order, to which there was no objection, that restricted defense counsel from making any use of Title III materials other than for preparation for trial and for use at trial, and disclosure to the Defendants (Docket No. 58).

The trial of one Defendant in this case began on January 18, 2005; the trial of the remaining five Defendants is scheduled to begin on February 14, 2005.

On January 7, 2005, pursuant to a pretrial schedule, Defendant Holck and Umbrell filed, under seal, an omnibus pretrial motion, which in part seeks a court ruling that certain evidence which the government intends to use at trial should be excluded on various grounds.

B. Parties' Contentions

1. Philadelphia Newspapers, Inc.

On January 10, 2005, Intervenor Philadelphia Newspapers, Inc. ("PNI") filed a motion seeking to vacate the July 23, 2004 protective order issued by this Court governing Title III materials. PNI argued that there is a First Amendment and common law right of public access to those materials and requested that the Court lift all sealing requirements and limitations on disclosure applicable to Title III materials, unseal any and all Title III materials previously filed under seal, allow PNI and the public generally to make copies of any transcripts filed with the Clerk or in Chambers, preclude the future filing of any such material under seal, and allow the parties and witnesses to disclose any and all of these materials to third parties, including PNI. (Motion at 1-2). This Court held oral argument on the motion January 13, 2005. At oral argument, PNI narrowed its request to documents filed with the Court in conjunction with pretrial proceedings, specifically, the sealed motions and accompanying exhibits filed by Defendants Holck and Umbrell on January 7, 2005, and documents submitted by the Government in response to that motion. (Tr. at 22) (PNI letter dated January 13, 2005 at 1).

2. Government

The Government agrees with PNI's view that there is a First Amendment right of access to pretrial motions filed in criminal proceedings. The Government points out that there is a distinction between Title III materials filed with the Court under seal in an ongoing investigation and transcripts that are submitted to the Court in connection with anticipation of a trial. (Tr. at 32). Thus, the Government does not oppose the unsealing of information filed in pretrial pleadings in connection with the upcoming trial. However, the Government does not agree that all the Title III materials filed under seal in connection to the investigation should be unsealed. Id.

3. Defendants Holck and Umbrell

Defendants Holck and Umbrell oppose PNI's motion to unseal the Title III materials and their pretrial motions. They argue that while there may be a right of access to any materials introduced into evidence at trial, there is no corresponding right of access to the wiretap intercepts at this pretrial stage because they are sealed and nonpublic pursuant to 18 U.S.C. §§ 2517 and 2518(8), as well as Fed.R.Crim.P. 6(e) (relating to grand jury materials). (Def. Response at 1, 7). Furthermore, Defendants argue that the documents should not be unsealed because their Fourth Amendment right of privacy and Sixth Amendment right to a fair trial free of prejudicial pretrial publicity overrides any First Amendment right of access. Id. Accordingly, Defendants contend that only the admission of these materials into evidence at trial, if it occurs, would render them public. Id. at 7.

C. Summary of the Law

1. Statutory Provisions Concerning Title III Materials

Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510 et seq., allows judicially authorized interception of wire or oral communications. Once authorized by a federal judge of competent jurisdiction, these electronic recordings may not be released in their raw state. Rather, the statute requires that these wiretap interceptions be sealed and remain so except under narrowly defined circumstances, including "while giving testimony under oath." 18 U.S.C. § 2517. To this end, the statute imposes civil and criminal penalties for unauthorized disclosures. 18 U.S.C. § 2511(1). The statute does not explicitly authorize, prior to actual testimony under oath, the content of the communication may be revealed to anyone. "In sum, Title III is designed to protect the privacy of communications and the integrity of the courts." In re Grand Jury, 111 F.3d 1066, 1079 (3d Cir.1997).

Analyzing the nature of Title III materials, in the normal course of an investigation which leads to a criminal prosecution, these materials undergo a slow transformation, not unlike a caterpillar turning into a butterfly. In the initial stages of an investigation, the information is in the form of raw electronic recordings. The government must submit periodic summaries to the authorizing judge. After indictment, the recordings are transformed into transcripts submitted to defense counsel as part of pretrial discovery. The process culminates when selected recordings are played for a jury at trial. At the final stage, the materials have clearly entered the public realm. The more difficult question is where, along this continuum, do these materials become subject to the public access doctrine, so that they are available to the press and public.

There are very few cases discussing the pretrial release of Title III materials, and no case has been located by the Court or counsel on point to the pending issue. In general, courts have been reluctant to allow the pretrial release of these sensitive materials. In all cases, the courts inevitably refer back to the text of Title III to find the authority to release these materials. Specifically, Section 2515 provides that wiretap evidence may not be received in evidence in any trial, hearing or other proceeding before a federal or state governmental body if disclosure of the information would violate Title III. See Certain Interested Individuals, John Does I-V, etc. v. Pulitzer Pub. Co., 895 F.2d 460, 464 (8th Cir.1990) (affirming district court's order concerning grand jury investigation in which no indictment had yet been filed, that required one affidavit to remain under seal and reversed the order redacting and disclosing search warrant materials as redacted).¹

In addition, the cases agree that, subject only to the First Amendment right of access, any authority for release of Title III materials must be found in Title III. See In re Motion to Unseal Elec. Surveillance Evidence, 990 F.2d 1015 (8th Cir.1993) (en banc), affirming order of district court denying private citizen's motion to unseal electronic surveillance evidence, and stating:

Congress provided for very limited disclosure of any wiretap evidence that is obtained. It specifically required that recordings made under Title III be sealed by the authorizing judge, see 18 U.S.C. § 2518(8)(a)(1988), and provided for disclosure and use of the intercepted conversations under very specific circumstances. When addressing disclosure of the contents of a wiretap, the question is whether Title III specifically authorizes such disclosure, not whether Title III specifically...