United States v. Cianfrani

• Decision Date: 27 March 1978
• Docket Number: Crim. No. 77-412.
• Parties: UNITED STATES of America v. Henry J. CIANFRANI.
• Court: U.S. District Court — Eastern District of Pennsylvania

448 F. Supp. 1102

UNITED STATES of America v. Henry J. CIANFRANI.

Crim. No. 77-412.

United States District Court, E. D. Pennsylvania.

March 27, 1978.

Gregory T. Magarity, Frank Sherman, Philadelphia, Pa., for the government.

Nicholas J. Nastasi, Philadelphia, Pa., for defendant.

Donald L. Weinberg, Arthur E. Newbold, IV, John R. McConnell, Philadelphia, Pa., for intervenors.

OPINION

EDWARD R. BECKER, District Judge.

I. Preliminary Statement

This opinion¹ addresses the question whether a hearing on a defendant's motion to suppress as evidence the tapes of intercepted oral or wire communications and on a corresponding Government motion to authenticate those recordings for use at trial must, at the request of the defendant, be held in camera or, conversely, whether the public and the news media are entitled to access to that hearing and/or to the transcript and record thereof. Principally at issue are the tapes of certain conversations between defendant, Henry J. Cianfrani, and one Vera Domenico. These conversations were recorded by special agents of the Federal Bureau of Investigation, allegedly with the consent of Miss Domenico. One conversation was recorded by virtue of Miss Domenico's premises being "wired"; the balance were telephone conversations conducted over "tapped" telephones. If these recordings were in fact made with Miss Domenico's consent, they would appear to be within the ambit of 18 U.S.C. § 2511(2)(c), which, as one of the exceptions from the statutory proscription against the interception of wire and oral communications, see generally 18 U.S.C. §§ 2510-2520, authorizes interception of a communication when one of the parties to the communication gives prior consent to its interception.

The defendant has contended that Miss Domenico did not give a valid consent to the interception and that the tapes and transcripts thereof must therefore be suppressed as evidence obtained in violation of law. He has thus moved to suppress the evidence under 18 U.S.C. § 2518(10).

The Government, on the other hand, has moved, pursuant to the procedure set forth in United States v. Starks, 515 F.2d 112, 121 n.11 (3d Cir. 1975), for the authentication of the tapes so that they may be introduced into evidence at trial.² The hearing the openness of which is at issue is also therefore intended as a Starks hearing.

The parties to the controversy now before us are the defendant, who has asked that the hearing be held in camera, and an impressive array of members of the Fourth Estate, who have asked that it be open. This array consists of Philadelphia Newspapers, Inc. (The Philadelphia Inquirer and the Philadelphia Daily News), the Philadelphia Bulletin Company, the Associated Press, the Columbia Broadcasting System, and the Westinghouse Broadcasting Company. Recognizing the First Amendment interest of the news media in this issue, we have granted the media leave to intervene on the media access question. The United States Attorney has taken no position in the matter, leaving it "to the discretion of the Court."

On Friday, November 11, 1977, one of the media representatives called our chambers to inform us that she desired to be heard through counsel if any of the pretrial hearings that had been scheduled pursuant to prior order of this court were to be held in camera. These hearings were originally scheduled to commence on Tuesday, November 15. On November 14, we informed the media that we would permit their counsel to present oral argument with respect to their right of access to the hearing. On November 15, we held lengthy oral argument at which media counsel and defense counsel were heard on the issues.

Defense counsel argued that the hearing must be held in camera for several reasons: (1) the tapes were grand jury material which are barred from public scrutiny under Federal Rule of Criminal Procedure 6(e); (2) the wide publication of the tapes that could be expected were the hearing open to the public might infringe defendant's Sixth Amendment right to a fair trial; (3) in any event, the press is not entitled to access to a pretrial hearing, as opposed to the actual trial itself; and (4) the suppression procedures established by Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520, do not countenance public or media presence at suppression or Starks hearings.

The media countered with the argument that a pretrial suppression/authentication hearing is an integral part of the trial and that, in any event, as a judicial proceeding taking place before a United States Judge in the United States Courthouse it must presumptively be open to the public and the press. The media further argued that, on the record made in this case, the defendant had not met the burden for restricting the press' First Amendment rights imposed on him by the United States Supreme Court's landmark decision, Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976).

Nebraska Press involved the murder of six persons in a small community in Nebraska. To prevent prejudicial pretrial publicity, the district court of Lincoln County, Nebraska issued an order that, as modified by the Nebraska Supreme Court in original mandamus proceedings instituted by the news media, restrained the media from publishing or broadcasting accounts of confessions or admissions made by the accused or of facts strongly implicating him. This order was to remain in effect only until the jury was impaneled and sequestered. On certiorari, the United States Supreme Court, in an opinion by Chief Justice Burger that expressed the views of five members of the Court, reversed.

The Supreme Court held in Nebraska Press that the challenged order violated the First Amendment's guarantee of free press insofar as the record did not demonstrate that alternatives to a prior restraint on the news media would not sufficiently have mitigated the adverse effects of pretrial publicity so as to make a prior restraint unnecessary. Further, the Court said that it was unable to conclude that the record showed that the restraining order would even have served its intended purpose. The Court also held that the order prohibiting reports or commentary on judicial proceedings held in public was clearly invalid and that, to the extent to which the order prohibited publication based on information gained from other sources, the heavy burden imposed as a condition of validly securing a prior restraint was not met.

We observe that in Nebraska Press the pretrial hearings conducted by the Court were open and that the court's challenged order prohibited reporting what the media had already heard. Nebraska Press thus does not squarely address the precise question now before us, which is that of media access to the proceedings and not that of prior restraint per se. The narrow question whether to exclude the press from a Title III suppression or Starks hearing has perforce arisen before in this and other federal courthouses throughout the land and has been dealt with by federal judges wherever it has arisen on an ad hoc—though doubtless a principled—basis. We are, however, unable to find any reported opinion discussing what we find to be the enormously complex and sophisticated issues involved. The parties themselves have cited us to none.

The principal and most elusive focus of our concern has been upon the nature and scope of the media's newsgathering or access rights in various important judicial proceedings. Needless to say, whether or not the media's exclusion would fit the rubric "prior restraint," if the media has a presumptive right of access to this suppression hearing, the First Amendment issue cuts very differently than if the media does not have such a threshold right. The question yields to no easy and unitary solution given the variegated nature of judicial proceedings, both civil and criminal, which, when parsed, subsume not just pretrial suppression hearings but also such matters as pretrial discovery, settlement conferences, pretrial conferences, in camera conferences to determine various claims of privilege, bench conferences during trial, et alia.

This opinion will address all of the major contentions raised by the parties and some, although not expressly raised, that emanate from our own analysis of the issues. We shall not, however, discuss the defendant's Federal Criminal Rule 6(e) argument except to note that we consider it to be lacking in merit: the fact that tapes that were the product of a continuing Justice Department investigation of Senator Cianfrani were played to the Grand Jury does not, in our view, make them "Grand Jury material" subject to the strictures of Federal Criminal Rule 6(e).

II. The Media's Newsgathering or Access Right to Court Proceedings: A Statement of the Problem and of a General Rule

Judicial trials, and particularly criminal trials, have long been grist for the American newsman's mill. From the trial of Aaron Burr in the nascent days of the Republic to the trials of Sacco and Vanzetti, Bruno Hauptmann, Dr. Sam Sheppard, Billy Sol Estes, and the Watergate defendants, the news media have reported the events of causes célèbres in replete detail, and the public has voraciously read those accounts. With respect to press coverage of actual trials, a considerable body of case law has understandably developed focusing on how the courts should handle cases in which excessive or unfair publicity threatens a defendant's Sixth Amendment right to a fair trial and impartial jury. There has been, however, relatively little distinction in the cases between, on the one hand, the media's right to print or broadcast what it knows and, on the other, the media's right to initial access; i. e., its right to newsgathering.

The validity of this distinction was underscored recently in Herbert v. Lando, 568 F.2d 974 (2d Cir. 1977), cert. granted ___ U.S. ___, 98 S.Ct. 1483, 55 L.Ed.2d 515 (1978)....