APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Crim. No. 80-00166-1-2-3-4)
Before Aldisert and Hunter, Circuit Judges, and Rambo, District judge.*fn*
In United States v. Cuthbertson, 630 F.2d 139, (3d Cir. 1980), we held that CBS had a qualified privilege, partially overridden in that case, not to disclose unpublished information in its possession in criminal cases. Earlier, in Riley v. City of Chester, 612 F.2d 708 (3d Cir. 1979), a civil case, we emphasized that special circumstances exist in a criminal case that must be considered in evaluating a witness' claim of journalists' privilege. Specifically, the trial court must consider whether the reporter is alleged to possess evidence relevant to the criminal proceeding and the effect of disclosure on two important constitutionally based concerns: the journalist's privilege not to disclose confidential sources and the constitutional right of a criminal defendant to every reasonable opportunity to develop and uncover exculpatory information. 612 F.2d at 716.
This appeal requires us to decide if a journalist, summoned as a defense witness in a criminal proceeding, may refuse to affirm or deny that she had a conversation with a particular individual who has already publicly testified that the conversation occurred and that certain matters arguably relevant to the judicial inquiry were discussed. Unlike Cuthbertson, this case implicates published information from a self-avowed source; unlike Riley, it is a criminal proceeding. We emphasize at the outset that the ultimate judicial inquiry with which this appeal is concerned seeks not the source of the reporter's information, but the motivation and the credibility of a single self-avowed source.
The case comes to us on an appeal by Jan Schaffer, a reporter for the Philadelphia Inquirer, from an order of the district court holding her in civil contempt for refusing to answer a question during a hearing on defendants' motions to dismiss their indictments. On May 22, 1980, defendants Howard L. Criden, an attorney practicing in Philadelphia, and Philadelphia City Councilmen Harry P. Jannotti, Louis C. Johanson, and George X. Schwartz were indicted by a federal grand jury in the Eastern District of Pennsylvania and charged with violations of federal laws exposed during a government undercover operation known as ABSCAM.*fn1 The indictment charges defendants with violating the Anti-Racketeering Act, 18 U.S.C. § 1962, and the Hobbs Act, 18 U.S.C. § 1951, by receiving bribes from government undercover agents posing as Arab sheiks.
Among the grounds presented for dismissing the indictment are allegations of prosecutorial misconduct and massive prejudicial pre-indictment and pretrial publicity. The charge of prosecutorial misconduct consists of an allegation that representatives of the Department of Justice and the United States Attorney's Office of the Eastern District of Pennsylvania released sensational and prejudicial information to the news media with intent to create an atmosphere inimical to the rights of the defendants. The parties concede that the ABSCAM investigation has received widespread publicity and the government has stipulated that the source of the disclosures to the press was one or more persons employed by the Department of Justice, the Federal Bureau of Investigation, and the United States Attorney's Office.
FBI officials have described ABSCAM as an operation of major proportions, apparently beginning in 1978 or earlier but not focusing on public officials until the fall of 1979. Thomas P. Puccio, chief of the Justice Department's Organized Crime Strike Force in Brooklyn, New York, was the chief prosecutor and head of the operation from its inception. Around December 12, 1979, Mr. Puccio transmitted a detailed memorandum to Phillip Heyman, Assistant Attorney General in charge of the Criminal Division of the Department of Justice, summarizing developments and analyzing applicable federal statutes. This memorandum was disseminated to top officials of the Department of Justice in Washington as well as to Robert Del Tufo, United States Attorney for the District of New Jersey, and to William Webster, Director of the FBI. The memorandum does not mention defendants.
Early in 1980, the U. S. Attorney's Office for the Eastern District of Pennsylvania became actively involved in the operation. On January 29, 1980, Peter F. Vaira, U. S. Attorney for the Eastern District of Pennsylvania, met with Brian Ross of the National Broadcasting Company. Vaira testified during the dismissal hearing that Ross was aware of certain details of the operation but that, as of the date of the meeting, he was unaware that the defendants had been implicated.
On Saturday, February 2, government agents invited Criden to New York and revealed the true nature of the ABSCAM operation to him. As part of a plan to continue the operation, Vaira and others tried to convince Criden to cooperate with them in continuing undercover operations. On that date, Ross released the ABSCAM story during an evening news broadcast on Channel 4 in New York. The news story contained films of government agents visiting the homes of certain public officials. Shortly thereafter, the New York Times, in a story written by Leslie Maitland, carried a detailed account of the operation. Neither the NBC broadcast nor the Times story contained information concerning the defendants here. Puccio and Vaira testified that the New York Times story contained much of the information found in the earlier memorandum from Puccio to Heyman and that Maitland probably had gained access to the memorandum. Government officials acknowledged in testimony before the district court that leaks to the press came from within the government. Both Puccio and Vaira denied that they were the original source of the leaks.
The testimony relevant to this appeal is Vaira's statement at the indictment dismissal hearing that he learned on February 2, 1980, that the ABSCAM operation was about to be exposed in the national media. As a favor to Schaffer, and while still negotiating with Criden, he telephoned Schaffer from Strike Force headquarters in New York, told her that the story was breaking in the national news, and advised her to "catch up" on the story. App. at 714A, 715A, 717A. Vaira was asked on direct examination if he was the source of information that appeared in Schaffer's article published by the Inquirer on Monday, February 4. He denied that he was. App. at 716A. Vaira then said that he had at least one other telephone conversation with Schaffer:
I recall that she returned a phone call and said, "I understand that there are Philadelphia city councilmen involved" and she had ... two correct names and one incorrect. I don't recall who it was.
At that point it looked to me she had some bad information.
I just said, "You are incorrect." At that time I realized she had picked up the story from Philadelphia which I thought was not a part of this bigger story, not a part of the New York Times work....
(S)he called me about two times or three times up in New York(.) (T)he third time she called me she had ... the correct names.
Q Did you then say she was correct?
A Yes .... I said, "That is all I'm going to say." In the meantime she had got some incorrect and it looked like she was going to include some incorrect names.
App. at 718A. During questioning by counsel for Criden, Vaira revealed that he first telephoned Schaffer "late in the afternoon, February 2, at sometime after an NBC-TV newscast aired at 6 or 6:30 p.m." He said that during his third conversation with Schaffer, sometime between 7:30 and 8:30 p.m. Saturday evening, he realized that she "had the full story" but that he did not confirm it. App. at 739A.
Schaffer was subpoenaed as a defense witness. Prior to her testimony, the court emphasized that it would not require her to reveal the sources of her information. App. at 983A. Schaffer's attorney objected to the court's order requiring Schaffer to testify, arguing that the government's concession that its employees were responsible for the releases obviated Schaffer's testimony. The court rejected this argument, however, reasoning that the need to preserve confidentiality of sources evaporates when the source himself has admitted his disclosure. In addition, the court stated that issues of Vaira's motivation and credibility remained unresolved. App. at 983A-84A.
When Schaffer's attorney continued to press the motion to quash the subpoena, the court denied the motion in a ruling that is critical to this appeal. It indicated that questions regarding the balance between the journalist's privilege and the defendant's right to a fair trial must "be made on the question by question basis." Following a sidebar conference counsel for defendant Schwartz continued the direct examination. Schaffer disclosed her occupation and her acquaintance with Vaira before the colloquy at issue occurred:
Q On February 2, 1980, did you have a conversation with Mr. Vaira concerning ABSCAM?
MR. KOHN: That's objected to your Honor.
THE COURT: Objection overruled.
MR. SPRAGUE: Would you answer that question.
MISS SCHAFFER: May I confer with counsel?
Your Honor, I am going to respectfully decline-
THE COURT: You are directed to answer the question ...