On Appeal from the United States District Court For the Middle District (Scranton) Pennsylvania (Civil No. 84-00156-04, 05)
Before: ALDISERT, Chief Judge, STAPLETON and MANSMANN, Circuit Judges
STAPLETON, Circuit Judge :
This is an appeal from a final order denying the press access to a portion of a bill of particulars under seal pursuant to court order.*fn1 While we cannot agree with the district court's legal analysis, we affirm its decision because we conclude that the risk of serious injury to third parties from disclosure outweighs the interest of the public in access to this limited segment of the bill of particulars.
On October 22, 1984, a grand jury indicted two corporations and five individuals, including William T. Smith, Jr. and Allan R. Stoneman, charging them with violations of the Interstate Transportation in Aid of Racketeering and Mail Fraud statutes, 18 U.S.C. §§ 1341, 1952(a) (3), and with conspiracy to violate those statutes, 18 U.S.C. § 371. The indictment alleged that defendants engaged in a scheme to obtain Federal Insurance Contribution Act tax recovery contracts from state and local government entities on a no-bid basis by attempting to corruptly influence public officials and public employees.
Defendants Smith and Stoneman, pursuant to Federal rule of Criminal Procedure 7(f), separately filed motions for bills of particulars requesting, inter alia, that the government identify the unindicted co-conspirators referred to in the indictment. On January 8, 1985, while reserving decision on all other aspects of the Rule 7(f) motions, the court below simultaneously ordered identification of the unindicted co-conspirators and granted a government request for a protective order regarding their names. The dispositive portion of the January 8 order stated:
1. The Government shall provide to Defendants Stoneman and Smith the names of unindicted co-conspirators referred to in P2, Count 1 of the indictment in this case.
2. Information provided by the Government pursuant to P1 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 P1 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
On January 11, 1985, the government filed a list of names in response to this order and the Clerk placed the document under seal. Soon thereafter, the court granted motions by the Patriot news Company and Philadelphia Newspapers, Inc. to intervene in order to apply to the district court for modification of the January 8 protective order. An evidentiary hearing on the motions to modify was held on January 29th, and after briefing and argument, the court, on February 13th, refused to lift the protective order.
The trial judge filed extensive findings of fact and conclusions of law explaining the reasons for his decision. Among the significant facts so found are the following:
11. On January 11, 1985, the Government filed a two-page document under seal with the Clerk of Court setting forth the required information in compliance with the Court's order.
12. The sealed document contains the names of persons who, in the opinion of the United States Attorney, are unindicted co-conspirators in this case or who could conceivably be considered as unindicted co-conspirators due to their alleged involvement in events included in the conspiracy.
14. The persons named in the sealed documents have not been found by a grand jury to be unindicted co-conspirators.
15. All of the individuals named in the sealed document are currently under active investigation by the Federal Bureau of Investigation in the Middle District and Western District of Pennsylvania and by the Federal Grand Jury in the Middle District of Pennsylvania.
16. The FBI's investigation will probably continue for six to nine months.
17. As of January 29, 1985, the Government had not made any final decision as to whether or not any of the individuals named in the sealed document will indicted.
19. Some of the individuals identified in the sealed documents are elected officials and public employees of the Commonwealth of Pennsylvania.
21. The Goverment has not publicly identified any of the persons named in the sealed document as unindicted co-conspirators during any proceeding in this case or in any other document filed with the Court.
22. The Government's opinion concerning the names of persons who are or who could conceivably be considered as unindicted co-conspirators in this case is not currently in the public domain.
27. The disclosure of the names of the unindicted co-conspirators to the Patriot News Company and Philadelphia Newspapers, Inc. would subject the unindicted co-conspirators to publicity stigmatizing them as having been named by the United States Attorney as alleged participants in the conspiracy alleged in the indictment at a time when they have not been charged and would have no judicial forum in which to defend against
28. The publicity generated from release of the names to the media would probably subject the persons named therein to embarrassment, annoyance, ridicule, scorn, traduction, and loss of reputation in the community.
Following Seattle Times Co. v. Rhinehart, 467 U.S. 20, 104 S. Ct. 2199, 81 L. Ed. 2d 17 (1984), the district court concluded that the government need not show a compelling governmental interest and a narrowly tailored judicial response to support continued ensealment of the list of names. Rather, it found that the document could remain sealed so long as the government showed "good cause" therefor. With respect to the issue of whether good cause existed, the court first observed that release of the list would not prejudice the defendant's right to a fair trial and that the evidence regarding a possible adverse impact on the government's continuing investigation was "unpersuasive." It then concluded. however, that the risk of serious injury to the persons named on the list in the event it was made public outweighed "any common law or First Amendment right of access to the lit." The court went on to explain:
Release of the list of names of unindicted co-conspirators clearly would invade the privacy rights of those individuals. The list constitutes an informal accusation of wrongdoing by the government to which the unindicted co-conspirators would have no meaningful opportunity to respond. Unlike the Defendants in this case who have been formally charged and have had or will have the opportunity formally to respond to the charge against them or to have their guilt or innocence with respect to the charges formally determined by a jury, the unindicted co-conspirators have no such opportunity.
The trial judge concluded his opinion by holding, in the alternative that the potential for serious injury to the named individuals was sufficient to meet not only the "good cause" standard of Seattle Times but also the "compelling interest" - "narrowly tailored" response standard of Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 73 L. Ed. 2d 248, 102 S. Ct. 2613 (1982). The court expressly determined that "no less restrictive alternative exists to continued ensealment of the information which would protect the privacy ...