U.S. v. Myers

• Decision Date: 22 August 1980
• Citation: 635 F.2d 942
• Parties: 6 Media L. Rep. 1805 UNITED STATES of America v. Michael O. MYERS et al., Defendants-Appellants. In re Application of NATIONAL BROADCASTING COMPANY, INC., et al., Applicants-Appellees. Docket 80-1345.
• Court: U.S. Court of Appeals — Second Circuit

Page 942

635 F.2d 942

6 Media L. Rep. 1805

UNITED STATES of America v. Michael O. MYERS et al., Defendants-Appellants In re Application of NATIONAL BROADCASTING COMPANY, INC., et al., Applicants-Appellees.

Docket 80-1345.

United States Court of Appeals Second Circuit.

Argued Aug. 21, 1980.

Decided Aug. 22, 1980.

Neil I. Levy and Richard Ben-Veniste, Washington, D.C., for defendant-appellant Criden.

Henry Furst, Jersey City, N.J. (Raymond A. Brown, Jersey City, N.J., on brief), for defendant-appellant Errichetti.

John J. Duffy, Philadelphia, Pa., for defendant-appellant Johanson.

Plato Cacheris and Larry Gondelman, Washington, D.C., submitted a brief for defendant-appellant Myers.

Edward R. Korman, U.S. Atty., Brooklyn, N.Y., for the United States.

Floyd Abrams, New York City (Robert C. Meade, Cahill, Gordon & Reindel, J. Marshall Wellborn, National Broadcasting Companies, Inc., and Allen Shaklan, CBS Inc., New York City, on brief), for applicants-appellees National Broadcasting Co., American Broadcasting Companies, and CBS Inc.

Daniel Reznick, Washington, D.C., for Congressman Frank Thompson, Jr., as amicus curiae.

Before NEWMAN and KEARSE, Circuit Judges, and DUMBAULD, ^* District Judge.

NEWMAN, Circuit Judge:

In the course of a pending criminal trial of the first of the so-called Abscam cases, see United States v. Myers, 635 F.2d 932 (2d Cir. 1980), the District Court for the Eastern District of New York (George C. Pratt, J.) on August 15, 1980 granted an application by the three major television networks for the opportunity to copy videotape recordings introduced as evidence in the trial. Once copies have been made, the networks intend to televise the tapes, or portions of them, on network television. The tapes are alleged to depict episodes in which the defendants, appellants here, are accepting cash tendered by undercover agents of the Federal Bureau of Investigation and a private citizen who were all posing as representatives of wealthy Middle Eastern businessmen. The acceptance of this cash is the basis of bribery charges for which the defendants are currently on trial.

Judge Pratt stayed his ordered briefly to permit appellants to apply to this Court for further relief. On August 19, the four defendants filed a motion in this Court for a stay of Judge Pratt's order pending appeal of that order. On August 19, Judge Kearse, presiding at the panel hearing motions on that day, assigned the motion for hearing on August 21 before this panel, which had previously been scheduled to hear cases on the 21st. On August 20, 1980, this panel invited the parties to consider the appropriateness of arguing the merits of the appeal on the 21st with opportunity thereafter to file brief expanding upon their motion papers. In the absence of objection and in view of the networks' interest in a prompt resolution of the dispute, we converted the oral argument on the stay motion into an argument on the merits of the appeal and heard extended argument for two hours on August 21. At the conclusion of the hearing we advised the parties that we would continue the stay pending further order of this Court and would advise the parties expeditiously concerning the scheduling of further steps in connection with the appeal.

Though the immediate issue before us concerns only the duration of the stay and a briefing schedule for the appeal, we are setting forth the circumstances in which the matter arose and our reasons for the stay and scheduling order to be entered because even this narrow procedural step implicates some of the issues involved on the merits of the appeal, and has the effect of denying the networks at least a portion of the relief they seek on the merits.

The threshold claim of the networks is that we should not stay Judge Pratt's order and should permit it to go into effect now. Their ultimate claim is that we should affirm the order expeditiously and thereby permit it to go into effect at the earliest feasible time, which they especially urge should be prior to the conclusion of the pending criminal trial. The appellants urge us to continue the interim stay already granted until we have adjudicated the merits. They further contend we should accord time for filing briefs in support of their position on the merits of the appeal and ultimately reverse Judge Pratt's order. The Government urges us to stay Judge Pratt's order only until the conclusion of the pending trial of the appellants, or, if we were to terminate the stay during the trial, to direct the District Judge to sequester the trial jury.

The following undisputed facts are relevant to our consideration of the immediate procedural issue. The pending trial is estimated to end early next week, most likely no later than August 27. The so-called Abscam "sting" operation has resulted in several indictments, two of which are pending and scheduled for trial in the Eastern District of New York and one of which is pending and scheduled for trial in the Eastern District of Pennsylvania. Appellant Criden is a defendant in all three of these pending indictments, appellant Johanson in two of them, and appellant Errichetti in one of them.

In our view Judge Pratt's order raises important and sensitive issues concerning the administration of criminal justice. The appellants present substantial arguments concerning their right to a fair trial in the pending trial and in the subsequent trials scheduled to occur this fall. The networks present substantial arguments concerning the public's right of access to exhibits entered into evidence in a public trial, in the form in which those exhibits have already been seen and heard by those members of the public...