U.S. v. Schiavo

Decision Date23 December 1974
Docket NumberNos. 73-1855,73-1856,s. 73-1855
Citation504 F.2d 1
PartiesUNITED STATES of America v. Frederick SCHIAVO. Appeal of PHILADELPHIA NEWSPAPERS, INC., and Susan Q.Stranahan. PHILADELPHIA NEWSPAPERS, INC., and Susan Q. Stranahan, Petitioners, v. UNITED STATES of America and Frederick Schiavo, Respondents, and The HonorableJ. William Ditter, Jr., Nominal Respondents.
CourtU.S. Court of Appeals — Third Circuit

Harold E. Kohn, David H. Marion, and Samuel E. Klein, of Harold E. Kohn, P.A., Philadelphia, Pa., for appellants in No. 73-1855 and for petitioners in No. 73-1856.

Robert E. J. Curran, U.S. Atty., J. Clayton Undercofler, III, First Asst. U.S. Atty. and Walter S. Batty, Jr., Chief, Appellate Section, Philadelphia, Pa., for respondent United States and for the nominal respondent.

Arthur B. Hanson, and Ralph N. Albright, Jr., Washington, D.C., for American Newspaper Publishers Ass'n, amicus curiae.

James C. Goodale, and Alexander Greenfeld, New York City, for New York Times Co., amicus curiae.

Argued Dec. 19, 1973.

Before VAN DUSEN, ALDISERT and ROSENN, Circuit Judges.

Reargued May 15, 1974.



VAN DUSEN, Circuit Judge.

Philadelphia Newspapers, Inc. (hereinafter the 'Philadelphia Inquirer') and Susan Q. Stranahan, appellants in No. 73-1855 and petitioners in No. 73-1856, seek reversal of a written and docketed district court order refusing to vacate an oral order, announced from the bench, enjoining them and other news media representatives from publishing during the perjury trial of Frederick Schiavo, information concerning murder and conspiracy indictments pending against Schiavo in a related matter. 1

Schiavo's perjury trial arose out of the death of Martin Alan Hess, a Government informer scheduled to testify in narcotics and counterfeit cases, who was killed in August 1972 when a bomb which had been placed in his car exploded. Schiavo's perjury indictment charged that he had lied to a federal grand jury which was investigating Hess' death. In addition to being indicted for perjury, Schiavo was indicted by a federal grand jury in the Eastern District of Pennsylvania on charges of conspiracy in connection with the alleged murder of the informer and by the State of New Jersey on charges of first degree murder.

Schiavo's perjury trial commenced on Wednesday, October 3, 1973. In an article appearing on Thursday, October 4, under the by-line of appellant Stranahan, the Philadelphia Inquirer reported the events of the first day of trial. The article also indicated that the defendant was 'one of five men charged with conspiring to kill a government informer last August.' On Thursday afternoon, fearing that the jury in Schiavo's trial might read the article and learn of the other indictments, the district judge summoned members of the press, including appellant Stranahan, to sidebar and stated that, while he could not tell the press what to publish, he hoped that they would appreciate the problems involved in mentioning the other two indictments. 2 On Friday, October 5, again under the by-line of appellant Stranahan, the Philadelphia Inquirer published an account of Thursday's proceedings and, in apparent disregard of the district court's request, referred to the existence of the two other indictments. The article stated that 'Schiavo also is charged by the Federal government with conspiring to kill Hess and with first-degree murder in New Jersey.' On Friday afternoon, at approximately 2:00 P.M., the district judge called the news media representatives covering the trial before him, stated that 'they could print that which went on in the court room,' but orally ordered them not to mention the above-mentioned two other indictments for different offenses in any further stories, and specifically stated that appellant Stranahan and the editors of the Philadelphia Inquirer would face contempt charges if they violated this order. 3 This order was not transcribed that week; also, it was neither set forth in writing by the district court nor entered on the district court docket until after the appeal was docketed in this court. The first evidence on the district court docket of the reduction of the district court order to writing is a docket entry on October 10, 1973. 4

At approximately 4:00 P.M. the same afternoon (October 5), counsel for appellants appeared before the district court and presented argument in support of a written motion that the above oral order be vacated. After hearing argument, 5 the district court denied the motion to vacate and subsequently denied a motion for a stay of the order pending appeal. This order refusing to vacate the prior oral order was set forth in writing and entered on the district court docket. The appellants immediately filed a notice of appeal late Friday afternoon, October 5, from the 4 P.M. order refusing to vacate the oral order announced about 2 P.M.

In their appeal, the appellants challenge the order of the district court on both constitutional and procedural grounds. For reasons which appear below, we reverse the district court order on procedural grounds.


This appeal confronts this court with two preliminary issues.

First, appellee 6 contends that there is no appealable order in the instant case. Specifically, the appellee contends that the district court's oral silence order is not an injunction within the meaning of 28 U.S.C. 1292(a)(1) but merely an incidental court order which is non-appealable, notwithstanding the fact that it purports to enjoin publication by the newspapers of certain information. We find it unnecessary to resolve this issue as we have concluded that the written order of October 5, 1973, is an appealable final order under 28 U.S.C. 1291, since it falls within the 'collateral order' doctrine established by the Supreme Court in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). In Cohen, the Supreme Court defined collateral orders as

'that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated . . .. We hold this order appealable because it is a final disposition of a claimed right which is not an ingredient of the cause of action and does not require consideration with it.' 337 U.S. at 546-547, 69 S.Ct. at 1226.

The order in the instant case constituted a final decision since it determined a matter independent of the issues to be resolved in the criminal proceeding itself, bound persons who were non-parties in the underlying criminal proceeding and had a substantial, continuing effect on important rights. 7

Secondly, the appellee contends that the instant appeal should be dismissed as moot since Schiavo's criminal trial has been completed and there no longer exists any restraint upon the appellants. We reject this contention and hold that this case is reviewable as a dispute 'capable of repetition, yet evading review.' Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911); see also DeFunis v. Odegaard, 416 U.S. 312, 318, 94 S.Ct. 1704, 1707, 40 L.Ed.2d 164 (1974); Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). This conclusion is not affected by the possibility that appellants may be cited for contempt of the silence order. The publication of proscribed matters in violation of the order would constitute a criminal contempt, and the merits of such an order could not ordinarily be challenged on appeal from a citation for criminal contempt. See United States v. United Mine Workers, 330 U.S. 258, 289-295, 67 S.Ct. 677, 91 L.Ed. 884 (1947); Walker v. Birmingham, 388 U.S. 307, 314-320, 87 S.Ct. 1824, 18 L.Ed.2d 1210 (1967). 8 If this case were deemed moot, it is unlikely that members of the press who are subject to a silence order would ever be able to obtain appellate review, since the underlying criminal proceeding would almost always terminate before the appellate court hears the case.


Appellants advance numerous arguments in support of their contention that the district court erred in refusing to vacate the silence order. Before reaching those arguments, however, we must address one problem not noted by appellants.

We assume for purposes of this appeal that the district court had power to enter the silence order, even though that order directly bound non-parties and governed their actions outside the presence of the court. The Sixth Amendment imposes a duty on the district courts no less than on prosecutors to take reasonable measures to ensure defendants fair trials, free of prejudice and disruption. See Sheppard v. Maxwell, 384 U.S. 333, 361-363, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966). Certainly, a federal trial judge may, to that end, restrict the actions of non-parties in his presence. See United States ex rel. Robson v. Malone, 412 F.2d 848 (7th Cir. 1969); United States v. Venuto, 182 F.2d 519 (3d Cir. 1950). In fulfilling their charge, the district courts also are authorized to restrict conduct outside the courtroom of parties, lawyers, jurors, witnesses, court officials and others connected with the trial process. Sheppard v. Maxwell, supra at 361-362, 86 S.Ct. 1507. This nucleus of clear judicial power to assure defendants fair trials underlies our assumption that the court below possessed the power to prohibit non-parties from taking actions, out of court, that would imperil efforts to provide Schiavo a fair trial. 9 This assumption does not pre-judge the possible constitutional limits on the exercise...

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