United States v. Ferle, Cr. No. 82-42.

• Citation: 563 F. Supp. 252
• Decision Date: 11 May 1983
• Docket Number: Cr. No. 82-42.
• Parties: UNITED STATES of America v. William R. FERLE, et al.
• Court: United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island

563 F. Supp. 252

UNITED STATES of America v. William R. FERLE, et al.

Cr. No. 82-42.

United States District Court, D. Rhode Island.

May 11, 1983.

Edwin J. Gale, Sp. Atty., U.S. Dept. of Justice, Providence, R.I., for plaintiff.

James Ruggiero, John F. Cicilline, Vincent Oddo, Gerrick Van Deusen, Providence, R.I., for defendants.

Knight Edwards, and John D. Deacon, Edwards & Angell, Providence, R.I., for Providence Journal Co.

MEMORANDUM

FRANCIS J. BOYLE, Chief Judge.

On July 11, 1980, an Order authorizing the interception of oral communications within the premises of 165 Atwells Avenue, Providence, Rhode Island issued pursuant to 18 U.S.C. § 2518 (1976), upon an application by the United States. The Application and Order, filed in Misc. No. 80-47, were sealed pursuant to 18 U.S.C. § 2518(8)(b).

Based in part upon information gathered from these interceptions, indictments issued in 1982 against the Defendants in this action, Frank L. Marrapese, Jr., William R. Ferle, Marie Marrapese, and Vincent Chiello. The four Defendants were tried in this Court in October of 1982, and jury verdicts of guilty were entered as to some of the charges. (CR. No. 82-42).

The United States filed a motion to unseal all documents in Misc. No. 80-47 pursuant to 18 U.S.C. § 2518(8)(b). The motion was granted in part, limiting disclosure to the Defendants and their counsel.

The Providence Journal Company, a publisher of newspapers of general circulation within the State of Rhode Island, also filed a motion in this action for disclosure of the application materials in Misc. No. 80-47 pursuant to 18 U.S.C. § 2518(8)(b). Defendants opposed this motion, on the grounds that such disclosure would jeopardize their right to a fair trial, and would violate their privacy rights and those of third parties.

Jury verdicts in this case were entered in October of 1982. Defendants' argument that their ability to obtain a fair trial would be jeopardized if these documents were unsealed is therefore moot.

18 U.S.C. § 2518(8)(b) provides that:

(b) Applications made and orders granted under this chapter shall be sealed by the judge. Custody of the applications and orders shall be wherever the judge directs. Such applications and orders shall be disclosed only upon a showing of good cause before a judge of competent jurisdiction and shall not be destroyed except on order of the issuing or denying judge, and in any event shall be kept for ten years.

The primary purpose of the "good cause" showing is to "protect the confidentiality of the government's investigation as well as the authenticity of the application and order." United States v. Florea, 541 F.2d 568, 575 (6th Cir.1976), cert. denied, 430 U.S. 945, 97 S.Ct. 1579, 51 L.Ed.2d 792 (1977). In light of the fact that the United States moved to unseal the application materials in this case, however, it must be presumed that unsealing would not impair the confidentiality of the government's investigation or affect the authenticity of the application.

In In Re Applications of Kansas City Star, 666 F.2d 1168 (8th Cir.1981), the Eighth Circuit held that "even in the absence of a government claim of confidentiality there must still be good cause for unsealing and disclosing orders and applications for electronic surveillance because the `protection of privacy was an overriding congressional concern' in the enactment of Title III. Gelbard v. United States, 408 U.S. 41, 48 92 S.Ct. 2357, 2361, 33 L.Ed.2d 179 (1972)." Id. at 1175. Because the district court in Kansas City Star had not addressed the issue of whether there was good cause to disclose the application to the public, the order unsealing the documents was vacated.

In this action, the Providence Journal Company maintains that the public's interest in access to criminal proceeding documents outweighs the Defendants' privacy rights. See generally Globe Newspaper Co. v. Superior Ct. for City of Norfolk, ___ U.S. ___, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982); Nixon v. Warner Communications, Inc., 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978). Congress has deliberately and expressly limited that right of access, however, by imposing the sealing requirements of 18 U.S.C. § 2518(8)(b) and by permitting unsealing only upon a showing of good cause. The fact that Congress imposed this limitation bears emphatic repetition.

In its Memorandum in Support of Motion for Disclosure of Electronic Surveillance Materials, the Providence Journal Company contends that there is good cause for disclosure of the documents to the press and the public (1) based on First Amendment interests in effectively covering an ongoing and newsworthy judicial proceeding, (2) in disclosure of other potential criminal activity, (3) in safeguarding against possible attempts to use judicial processes as instruments of persecution, and (4) generally for all the reasons that give rise to First Amendment and common law interests in disclosure of such materials. Thus, the Providence Journal Company concedes in this action the constitutional validity of the good cause requirement imposed by Congress. Movant has neither briefed nor argued the contention that Congress may not impose such a limitation, a contention which would create a substantially different issue from that now presented. See generally Nebraska Press Assn. v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976); Richmond Newspapers Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980); Globe Newspaper Company v. Superior Court, ___ U.S. ___, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982).

"Good cause ... means that, at least minimally, there must be a need for disclosure." Kansas City Star, 666 F.2d at 1176. The fact that a trial is completed or that the United States does not oppose an unsealing does not constitute "good cause." Nor does the desire of the news media to print the contents of a sealed application and order provide a "need for disclosure." Kansas City Star, 666 F.2d at 1177 n. 12. The legislative history of Title III includes the statement that "applications and orders may not be disclosed except incidental to the disclosure or use of the records themselves after a showing of good cause ...". S.Rep. No. 1097, 90th Cong., 2d Sess., reprinted in 1968 U.S.Code Cong. & Ad. News 2112, 2194. Certainly the First Amendment free speech and free press rights of the Providence Journal Company are entitled to protection. The Providence Journal Company does not argue, however, that the good cause restriction imposed by Congress violates those rights. The direction of the elected representatives of the public must be followed, absent a violation of a constitutional mandate. No such violation is alleged in this action.

If this Court should determine that the mere fact that the Providence Journal Company is a newspaper is, standing alone, sufficient to show good cause, then the good cause requirement imposed by Congress is essentially meaningless. Furthermore, since the Providence Journal Company has no superior right to information, see Branzburg v. Hayes, 408 U.S. 665, 684, 92 S.Ct. 2646, 2658, 33 L.Ed.2d 626 (1972), if it is entitled to the application materials, then anyone else who wished to have access would also be entitled to the information.

The privacy rights of third parties who may be affected by disclosure must also be considered upon an application to unseal pursuant to 18 U.S.C. § 2518(8)(b)...