U.S. v. Wecht

Decision Date01 August 2008
Docket NumberNo. 07-4767.,07-4767.
Citation537 F.3d 222
PartiesUNITED STATES of America v. Cyril H. WECHT WPXI, Inc; Tribune-Review Publishing Company; PG Publishing Company d/b/a Pittsburgh Post-Gazette, Appellants.
CourtU.S. Court of Appeals — Third Circuit

David J. Berardinelli, Walter P. DeForest, III, DeForest, Koscelnik, Yokitis, Kaplan & Berardinelli, Pittsburgh, PA, Counsel for WPXI, Inc.

David A. Strassburger, Strassburger, McKenna, Gutnick & Potter, P.C., Pittsburgh, PA, Counsel for Tribune Review Publishing Co.

David J. Bird, W. Thomas McGough, Jr., Joseph F. Rodkey, Jr., Reed Smith LLP, Pittsburgh, PA, Counsel for PG Publishing Company.

Amy L. Barrette, Jerry S. McDevitt, Jagan N. Ranjan, Mark A. Rush, Kirkpatrick & Lockhart Preston Gates Ellis LLP, Pittsburgh, PA, Richard L. Thornburgh, Kirkpatrick & Lockhart Preston Gates Ellis LLP, Washington, D.C., Counsel for Cyril Wecht.

Rebecca R. Haywood, Office of United States Attorney, Pittsburgh, PA, Counsel for United States of America.

Before: SMITH, FISHER, and VAN ANTWERPEN, Circuit Judges.

OPINION

SMITH, Circuit Judge.

I.

We issue this opinion in support of our order filed on January 9, 2008 in the matter of United States v. Wecht. WPXI, Inc., PG Publishing Company, doing business as Pittsburgh Post-Gazette, and Tribune-Review Publishing Co. (collectively, the "Media-Intervenors"), filed a motion challenging an order of the United States District Court for the Western District of Pennsylvania announcing jury selection procedures to be used at an impending criminal trial. Specifically, the Media-Intervenors challenged the District Court's decisions (1) to empanel an anonymous trial jury, and (2) to conduct voir dire through use of a written questionnaire and without venirepersons physically present in an open courtroom until the pool of prospective jurors was reduced to 40. In our January 9 order, we vacated the District Court's order to the extent that it restricts public access to the names of trial jurors or prospective jurors.1 We denied all other relief sought.

II.

On January 20, 2006, a grand jury returned an 84-count indictment against Dr. Cyril H. Wecht. As we noted in deciding an earlier interlocutory appeal in this matter, "[t]he 84-count indictment asserts that [Wecht] unlawfully used his public office as the coroner of Allegheny County, Pennsylvania, for private financial gain." United States v. Wecht, 484 F.3d 194, 198 (3d Cir.2007). The offenses charged included theft of honest services, mail and wire fraud, and theft from an organization receiving federal funds. The case was assigned to Judge Arthur Schwab of the U.S. District Court for the Western District of Pennsylvania. During a pretrial conference on July 12, 2006, the parties reported to the District Court that they had agreed to use a 24-page questionnaire containing 69 questions in the jury selection process.2

The following day, on July 13, 2006, the Board of Judges for the Western District of Pennsylvania entered an administrative order directing that "all jurors shall be identified in court during the jury selection process by his/her assigned juror number ONLY. A prospective juror shall no longer be identified by or identify himself or herself by name." In re Jury Administration Procedures, Misc. 06-211 (W.D.Pa. July 13, 2006). The order further provided that "any and all juror lists generated by this Court for use in the jury selection process shall be deemed confidential and property of the Court and shall not be removed from the Court at any time." Id. The juror lists were available only to counsel who were required to execute a receipt for the list and to return it upon completion of jury selection.

A day later, on July 14, Judge Schwab issued a pretrial order addressing the use of the jury questionnaire and establishing procedures to be employed during voir dire. Section A of the order noted that the summons to be issued to prospective jurors would be mailed together with the final juror questionnaire, a cover letter from the Court, and instructions. Section B of the order pertained to the jury questionnaire procedure. Paragraph 5 of Section B of the order stated: "Pursuant to the decision of the Board of Judges of this District, counsel shall not have access to the names and addresses of the prospective jurors. Therefore, Jury Administrator Morder is instructed to remove and retain the last page of the Jury Questionnaire setting forth the prospective jurors' names and current addresses." Although this directive was more restrictive than the July 13, 2006 standing order, neither Wecht nor the Government objected. Paragraph 6 of Section B of the order scheduled a hearing for September 19, 2006, to permit counsel to review the completed jury questionnaires, albeit without the names and addresses of the jurors, and to confer among themselves as to prospective jurors that they did not believe should be part of the venire. Jury selection was scheduled for October 11, 2006.

In mid-September, after hearing oral arguments in the first Wecht appeal, this Court granted a stay of the trial pending its resolution of the various appeals. United States v. Wecht, No. 06-3098 (3d Cir. Sept. 15, 2006). As a result, the 300 venire members who had been summoned were released. After we issued our mandate, Judge Schwab entered an order on November 26, 2007, announcing the jury selection procedures he would follow. The order stated in the first paragraph that the "jury will be anonymous." The Court directed the jury administrator to issue 400 summonses. This time, however, the summons would not be accompanied by the juror questionnaire. Instead, the venire members would be called in groups of sixty to appear in the jury assembly room where they would receive the standard jury orientation and complete the jury questionnaire fashioned for this case. During the afternoon of each session, the jury administrator would provide four copies of the completed jury questionnaire to the District Court. The Court would then provide the questionnaire to counsel to review for the purpose of making challenges for cause and obtaining information for peremptory challenges. The District Court instructed that it would rule on any challenges for cause each afternoon or the following morning. Final selection of the petit jury was tentatively scheduled to begin on January 23, 2008, during which the parties would exercise their peremptory challenges.

Wecht objected inter alia to jury anonymity, the limitation on access to the questionnaires, and the fact that the District Court's order did "not indicate whether the voir dire questions will be given to each group in open court or even at all prior to the for cause determinations...." In a subsequent filing, Wecht objected to the removal of the signature page from the jury questionnaire and requested that each prospective juror be subject to voir dire in open court. On December 4, the Media-Intervenors filed a petition with the District Court objecting to the anonymous jury and the lack of in-person, public voir dire in open court.

On December 21, 2007, Judge Schwab issued a 64-page order reviewing the procedural history relative to jury selection and voir dire. Order of Court Re: Jury Selection, Voir Dire, And Other Pretrial Issues, No. 2:06-cr-00026-AJS (W.D.Pa. Dec. 21, 2007) ("Dec. 21 Order"). In this order, Judge Schwab reiterated his earlier declaration that the "jury will be anonymous," but noted that he preferred the term "innominate jury."3 Dec. 21 Order at 21 n. 5. Additionally, Judge Schwab opined that the voir dire process would provide the parties with ample information about the jurors. Dec. 21 Order at 21 n. 5. After setting forth the factors to be considered in deciding whether to empanel an anonymous jury, Judge Schwab adhered to his earlier ruling to empanel such a jury. Dec. 21 Order at 28-30. Noting that the Media-Intervenors had challenged the Board of Judges' order (Misc.06-211) as unconstitutional, he disclaimed any reliance on this order as the basis of his decision. Dec. 21 Order at 18 n. 4.

In his December 21 order, Judge Schwab also explained that "[t]he court will be reviewing the Jury Questionnaire in open court at the same time as counsel, so rulings may be made on the record, with media in attendance to hear the reason(s) for each `for cause' dismissal, by juror number." Dec. 21 Order at 33. The order further noted that "the Court, as it always has done throughout this case, will provide the media access to the Courtroom during the six (6) day initial jury selection process (including all rulings on the record re: `for cause' decisions); and during voir dire process of the pool of 40 jurors using the individual voir dire questions...." Dec. 21 Order at 37.

Judge Schwab explained that "the final jury selection process will commence on January 23, 2008, and copies of the completed Jury Questionnaires of the pool of 40 prospective jurors will be returned only to the counsel, parties, and the Court (with a copy of the last page of the Jury Questionnaire identifying the names and addresses in order by juror number)." Dec. 21 Order at 44. During this final stage of the process, the District Judge noted that he would ask ten voir dire questions of each prospective juror. Dec. 21 Order at 40-41 (listing the questions). The order specified that the Media-Intervenors would, at the conclusion of the trial, be given access to review the jury questionnaire, excluding the last page which contained the juror's name and address. Dec. 21 Order at 34-35. The order contains no indication that the Media-Intervenors would be given access to the names or addresses of the prospective and trial jurors at any time before or after Wecht's trial.

The Media-Intervenors timely appealed the December 21 order. They moved for summary reversal under Third Circuit Internal Operating...

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