The opinion of the court was delivered by: MUIR
Presently pending before the Court are motions filed by the Patriot News Company and Philadelphia Newspapers, Inc. seeking access to a document containing the names of unindicted co-conspirators in this case. The Government and Defendant Smith oppose release of the document to the newspapers and Defendant Stoneman does not. The major dispute between the newspapers on the one hand and the government and Defendant Smith on the other hand involves the question of what standard is applicable to the newspapers' motions.
On October 22, 1984, a Grand Jury returned a 16-count, 39-page indictment charging two corporations and five individuals with violations of federal law in connection with a scheme to obtain lucrative contracts from Pennsylvania state and local governments through bribery of public officials. The indictment charges that the defendants conspired to bribe, among others, R. Budd Dwyer, the Treasurer of the Commonwealth of Pennsylvania, and Leroy Zimmerman, the Attorney General of the Commonwealth of Pennsylvania.
Two of the five individual defendants have pled guilty to a single count of conspiracy to commit mail fraud, see 18 U.S.C. § 1341, and to violate the Interstate Transportation in Aid of Racketeering statute, 18 U.S.C. § 1952(a)(3), in violation of 18 U.S.C. § 371. Defendant David I. Herbert entered his guilty plea on November 9, 1984. Herbert was, at the time of the conspiracy, the state director of the Bureau of Social Security for Public Employees for the Commonwealth of Pennsylvania. Defendant John R. Torquato, Jr. entered his guilty plea on December 17, 1984. Defendant Judy Ellis pled guilty on December 21, 1984 to a single count of Interstate Transportation in Aid of Racketeering. 18 U.S.C. § 1952(a)(3). The remaining individual Defendants, Alan R. Stoneman, a California attorney, and William T. Smith, Jr., a Pennsylvania attorney, have pled not guilty to the charges against them. A jury has been selected for the trial of the case and trial probably will commence within the next month.
Count I of the indictment, the conspiracy charge, states in para. 2 that the two corporate and five individual Defendants "and others, known and unknown," conspired to commit the federal offenses noted above. On November 26, 1984, Defendant Stoneman filed a motion for a bill of particulars pursuant to Rule 7(f) of the Federal Rules of Criminal Procedure in which he requested that the government disclose to him the names of the persons referred to in para. 2, Count I of the indictment, i.e., the unindicted co-conspirators. Defendant Smith filed a parallel request on December 20, 1984. On December 21, 1984, the Government filed a brief in opposition to Stoneman's motion for a bill of particulars in which the Government indicated that it would provide the Defendants with the names of the unindicted co-conspirators "upon direction of the court" but requested that the Court order that the names of the unindicted co-conspirators be kept confidential and, if filed with the Court, sealed by the Clerk of Court.
On January 8, 1985, the Court ordered the Government to provide the Defendants with the names of the unindicted co-conspirators. The January 8 order also ordered that the information be kept confidential as requested by the Government but contained a provision whereby the public might apply for modification of the confidentiality provisions of the order. The following is the full text of the dispositive portions of the January 8, 1985 order:
2. Information provided by the Government pursuant to para. 1 above shall not be disclosed by the Defendants or their counsel except upon leave of Court.
3. If information provided by the Government pursuant to para. 1 above is filed with the Clerk, the Clerk of Court shall seal the document(s) containing such information.
4. The provisions of this order relating to confidentiality of the names of unindicted co-conspirators may be modified by the Court on application of any interested person or body upon notice and for good cause shown.
On January 11, 1985, the Government filed the list containing the names of the unindicted co-conspirators with the Clerk of Court and the Clerk placed the document under seal. On January 15, 1985, the Patriot News Company filed an application for modification of the Court's January 8, 1985 order insofar as it provides for confidentiality of the names of the unindicted co-conspirators. On January 17, 1985, Philadelphia Newspapers, Inc. filed a motion requesting access to the document containing the names of the unindicted co-conspirators. In orders dated January 15 and January 21, 1985, the Court scheduled a hearing on the newspapers' motions and established a schedule for the submission of briefs regarding the newspapers' motions. On January 29, 1985, the Court granted the newspapers' motions for leave to intervene in this case for the limited purpose of moving for access to the list of unindicted co-conspirators.
The hearing on the newspapers' motions was held on Tuesday, January 29, 1985. The parties were allowed to present any evidence they deemed relevant to the newspapers' motions. The Government presented testimony by Special Agent Donald Jordan of the Federal Bureau of Investigation. The newspapers and Defendant Smith cross-examined Special Agent Jordan.
Following the presentation of evidence, the parties presented oral argument on the question of what standard the Court should apply in ruling on the newspapers' motions. At the conclusion of the hearing, the Court invited the parties to submit proposed findings of fact and conclusions of law. All interested parties submitted proposed findings and conclusions by February 6, 1985. The following are the Court's findings of fact, discussion, and conclusions of law. The nature of this matter is such that many of the Court's findings are not based directly on evidence presented at the hearing but are instead based on matters of public record and inferences drawn from those matters or evidence presented at the hearing or both.
1. On October 22, 1984, the indictment in this case was filed charging the named defendants in Count I with conspiring with each other "and others, known and unknown" to commit mail fraud and interstate transportation in aid of racketeering, in violation of 18 U.S.C. § 371.
2. The overt acts alleged in Count I of the indictment refer to several public and elected officials and other individuals who have not been indicted (James Scanlon, James Scanlon's family, Scott O'Donnell, Robert Rade Stone, Eugene Scanlon, Bob Scanlon, Barbara Scanlon, the wife of David I. Herbert, R. Budd Dwyer, Mark Phencie, Patrick T. Boyle, Michael Trant, Leroy Zimmerman, and unnamed state legislators) but none of them are referred to therein as co-conspirators nor are they alleged therein to have committed criminal conduct.
3. On November 26, 1984, Defendant Stoneman filed a motion for a bill of particulars under Rule 7(f), F.R.Crim.P. requesting the Government to furnish him with responses to 38 requests for particulars, including the names of all co-conspirators then known to the Government and unidentified in paragraph 2, Count I of the indictment.
5. On December 21, 1984, the Government filed a brief in opposition to Stoneman's motion for a bill of particulars in which it stated, inter alia, that it would identify known unindicted co-conspirators for the defendant upon direction of the Court, but requested that the Court issue a protective order directing the information be kept confidential by defense counsel and be sealed with the Court.
6. The Government gave the following statement of reasons for its request for the protective order:
. . . so as to avoid the generation of prejudicial pretrial publicity or other abuse of this information. The Government makes this request because the names of some of the unindicted co-conspirators will obviously be elected public officials and public employees who are under active and continuing investigation. If the Defendant Stoneman were to make this information public, it could have an obvious detrimental effect on that continuing investigation.
7. On December 31, 1984, the Government filed a response to Defendant Smith's consolidated pretrial motions in which it reiterated its position regarding naming of unindicted co-conspirators.
8. On January 7, 1985, Defendant Smith filed a reply to the Government's response in which he stated that he did not oppose the Government's proposal concerning a protective order provided that he would be permitted to use the information in legitimate pretrial preparation.
9. On January 8, 1985, the Court granted the defendants' motions for a bill of particulars and the Government's request for a protective order regarding the names of the unindicted co-conspirators on the stated ground that the parties' requests appeared to be "reasonable" at that juncture.
10. The Court's January 8, 1985 order directed the Government to provide the defendants with the names of the unindicted co-conspirators referred to in paragraph 2, Count I of the indictment and further directed that information provided by the Government pursuant to the Court's order should not be disclosed by the defendants or their counsel except upon leave of Court; that if the information provided by the Government was filed with the Clerk, the Clerk of Court should seal the document(s) containing such information; and that the Court's order relating to the confidentiality of the information could be modified by the Court upon application of any interested person or body upon notice and for good cause shown.
11. On January 11, 1985, the Government filed a two-page document under seal with the Clerk of Court setting forth the required information ...