The opinion of the court was delivered by: Lee, District Judge.
Presently before the Court are the Motions of Janet Williams
and the Pittsburgh Press Company, Michael Bucsko and the
Pittsburgh Post-Gazette, WPXI, Inc., and Westinghouse
Broadcasting Company, Inc., t/d/b/a KDKA-TV, to quash subpoenas
duces tecum requiring them to produce documents relating to the
now completed criminal trial of United States v. Charles
Porter, et al., Criminal No. 90-35, Western District of
Pennsylvania, received by them from a person or persons whom
the Government seeks to identify.*fn1
Immediately prior to the closing arguments in the
Porter trial, the Government learned that copies of Federal
Bureau of Investigation reports (FD-302's) produced for the use
of defense counsel in the Porter trial were distributed to
various members of the news media. The Presiding Judge had
issued an Order prior to the commencement of the trial
restricting the disclosure or dissemination of any Jencks and
Brady material which would include copies of the FD-302's
distributed to defense counsel.
The FD-302's describe interviews with one Marvin "Babe"
Droznek, a Government witness, who related rumors of corruption
of various public officials, including a retired Federal
The Government immediately advised the Presiding Judge,
Honorable Donald E. Ziegler, who entered an ex parte Order
directing various members of the media to appear that afternoon
in his courtroom and to bring with them:
"Any and all original documents received by the
United States mail on or about October 24, 1990,
pertaining to the ongoing criminal trial of the
(sic) United States of America versus Charles J.
Porter, et al., including reports prepared by the
Federal Bureau of Investigation, FD-302's, and the
envelopes in which the documents were mailed."
The Order was obtained by the Government for the reason that
it sought to procure the envelopes and reports from members of
the news media, so that they could be examined to learn the
identity of the party who distributed the FD-302's to the news
At the same time, a Grand Jury subpoena was issued purporting
to require the news media to produce the same documents on
October 30, 1990, before a Grand Jury sitting in the District.
No Grand Jury was seated on October 25, 1990, which is the date
that the first set of subpoenas was issued and served.
At the time scheduled for production of the documents in his
Order, Judge Ziegler, on the Motion of the respondents, recused
without taking any further action.
Judge Ziegler suggested the Government should consider
presenting its Motion to another judge, either the Chief Judge
or the Miscellaneous Judge.
Thereafter, on October 26, 1990, counsel for the Post-Gazette
and its reporter, Michael Bucsko, both named as respondents in
the subpoena, advised the Government that his clients had no
documents responsive to the subpoena in that none of the
documents had been received on or about October 24, 1990.
A second set of subpoenas duces tecum was served by the
Government on November 6, 1990, upon the movants which required
The Court, after a preliminary hearing on the Motions to
Quash and after consideration of Motions of some of the
respondents for an evidentiary hearing, scheduled an
evidentiary hearing to commence December 20, 1990, so as to
enable the parties to make a complete record should there be an
appeal from the disposition of the Motions.
Prior to the evidentiary hearing, the Government filed a
Schofield affidavit wherein it identified the legal bases for
the Grand Jury investigation; that is, as a result of the
distribution of the documents, it had probable cause to believe
that the following offenses were committed: (i) obstruction of
justice in violation of 18 U.S.C. § 1503; (ii) contempt of
court in violation of 18 U.S.C. § 401; (iii) contempt of court
in violation of 18 U.S.C. § 402; and (iv) theft of government
property in violation of 18 U.S.C. § 641.
During the hearing, the Government offered testimony of three
witnesses, Assistant United States Attorney Bruce Teitelbaum,
FBI Agent Patricia Moriarty, and FBI Agent David Attenberger,
a document examiner.
The Post-Gazette adduced testimony of Michael Bucsko who
testified that he received a number of documents relating to
the Porter trial from a person whose identity was known to him
and to whom he had promised confidentiality.
The movants, other than the Pittsburgh Press, represented
that they had received materials in the United States mail from
an anonymous source.
Prior to the evidentiary hearing, by agreement of all the
movants, the Court ordered the movants to preserve the FD-302's
and the envelopes which they received pending the disposition
of the Motions to Quash.
Other members of the news media, WTAE and the Greensburg
Tribune Review also received copies of the FD-302's in the mail
but have voluntarily surrendered them to the Government.
In opposition to the Motions to Quash, the Government asserts
(i) under Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33
L.Ed.2d 626 (1972), there is no journalist's privilege in Grand
Jury proceedings; and (ii) were there such a privilege in Grand
Jury proceedings, pursuant to applicable decisions of the Third
Circuit, any such privilege must yield to the superior public
interest of the government in investigating a threat to the
fair administration of justice in a very important criminal
The Government stresses that the most significant fact in
this litigation is that the subject matter of the subpoenas is
"not oral testimony but rather the unknown physical evidence of
possible criminal activity." (Government's Supplemental
Memorandum for the United States.)
Moreover, the Government contends the news gatherer's
privilege asserted here is tantamount to the attorney-client
privilege which does not protect physical evidence, and cites
2 Weinstein's Evidence, § 501 at 501-44 (Matthew Bender,
1989) which states:
"If (a news reporter) has evidence of a crime,
such as original documents and weapons, they
should be turned over immediately."
Conversely, the movants principally argue, inter alia, that
in the present circumstances, there being no competing
constitutional interests, there is an absolute news gatherer's
privilege; or alternatively, that when constitutional interests
compete, the absolute privilege gives way to a qualified
privilege whereupon the Court must apply a balancing test to
determine the limits of the privilege, and, that on this
record, the Government has failed to establish the criteria of
that balancing test enunciated in Riley v. City of Chester,
612 F.2d 708 (3d Cir. 1979), which must be met before a news
gatherer can be compelled to disclose a confidential
The movants, other than the Post-Gazette, also assert that
the privilege extends to the reports they received from an
anonymous source because the proposed testing by the Government
could establish the identity of the confidential source, that
a confidential relationship may be created by implied
confidences not merely express confidences and, in any event,
the privilege arises by reason of statute.
Prior to the evidentiary hearing, the Court observed that the
issue of journalist's privilege is controlled by one of three
possible authorities: (i) the decision of the Supreme Court in
Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646; (ii) the
qualified privilege rule adopted by the Third Circuit in Riley
v. City of Chester, 612 F.2d 708 (3d Cir. 1979); or (iii) the
Pennsylvania Shield Law, 42 Pa. C.S. § 5942.
At the conclusion of the hearing, the Court requested the
parties to brief (i) the effect of the adoption of Rule 501,
Federal Rules of Evidence, subsequent to the Branzburg
decision; (ii) the civil-criminal distinction embodied in Rule
501; and (iii) the significance of the Pittsburgh Post-Gazette
reporter's knowledge of the source and his promise of
1. In the trial of United States of America v. Charles J.
Porter, et al., fifteen (15) defendants were charged in a 46
Count indictment; two pleaded guilty prior to trial, four were
severed, and nine defendants were tried over an eight (8) week
period on 46 counts alleging various types of criminal
activity. (See generally, Government's Exhibit No. 1; Tr. at 9,
10, 15, December 20, 1990.)
2. Prior to the start of the Porter trial, the Honorable
Donald E. Ziegler issued an Order, dated August 30, 1990,
restricting the disclosure and/or dissemination of Jencks and
Brady material to defense counsel, the defense team, or any
defendant as provided by the Government in the Porter
trial.*fn4 (See Government's Exhibit No. 2.)
3. Michael Bucsko is a reporter for the Pittsburgh
Post-Gazette, a morning newspaper of general circulation in the
Greater Pittsburgh area. (Tr. at 16, December 26, 1990.)
4. On or about one month prior to October 25, 1990, Mr.
Bucsko received from a known source to whom he promised
confidentiality, certain Porter trial documents including two
Federal Bureau of Investigation Reports (FD-302's) prepared by
Special Agent Roger Greenbank on January 21, 1988, and April
18, 1989. Mr. Bucsko is the only member of the media who
alleges to know the identity of the individual who provided him
with the copies of FD-302's. (Tr. at 15, 16, 17, December 26,
6. On the morning of October 25, 1990, after the defense had
rested in the Porter trial and shortly before the time set for
closing arguments, KDKA-TV reporter, Harold Hayes, contacted
the Offices of the United States Attorney to inform the
Government that he had received certain documents which
pertained to the ongoing Porter trial. In fact, these documents
were copies of the FD-302's in question. (Tr. at 16, 17,
December 20, 1990.)
7. At or about the same time as KDKA-TV revealed that it was
in possession of FD-302's, the Government learned that other
media representatives also received copies of the reports in
question. These media members were Michael Bucsko, reporter for
the Pittsburgh Post-Gazette, Janet Williams, reporter for the
Pittsburgh Press, Jim Urban, reporter for the Greensburg
Tribune Review, and WPXI-TV, a subsidiary of Cox Broadcasting.
(Tr. at 23, December 20, 1990.)
8. On the morning of October 25, 1990, United States Attorney
Thomas Corbett informed Judge Ziegler that he had been
contacted by KDKA-TV regarding its possession of certain
FD-302's. Based upon the information Corbett received, the
Government filed a Motion for Immediate Production of Documents
under the caption of the Porter case with the dual aim of
preserving the integrity of the judicial proceeding and aiding
the Government's investigation into the circumstances
surrounding the disclosure of these documents. (Tr. at 16, 17,
18, December 20, 1990.)
9. Prior to 1:30 p.m. on October 25, 1990, subpoenas
duces tecum returnable on October 30, 1990, were issued to
"Mike Bucsko or the Pittsburgh Post Gazette, Westinghouse
Broadcasting or Harold Hayes, Janet Williams or the Pittsburgh
Press, and Cox Broadcasting." The subpoenas read as follows:
YOU ARE ALSO COMMANDED to bring with you the
following document(s) or object(s):
Any and all original documents received by
(movant's name) by United States Mail on or about
October 24, 1990, pertaining to the ongoing
criminal trial of United States of America v.
Charles J. Porter, et al., in Pittsburgh,
Pennsylvania, including reports prepared by the
Federal Bureau of Investigation (FD-302's) and the
envelope in which the documents were mailed.*fn5
(See Movants' Exhibits "D", "H", "J", and "B").
10. On October 25, 1990, at approximately 1:30 p.m., the
Government secured an ex parte Order signed by the Honorable
Donald E. Ziegler requiring Mr. Bucsko and various other
members of the media to appear at 4:30 p.m. that afternoon in
Judge Ziegler's courtroom and to bring with them:
". . . any and all original documents received by
United States Mail on or about October 24, 1990,
pertaining to the ongoing criminal trial of the
[sic] United States of America v. Charles Porter,
et al., including reports prepared by the Federal
Bureau of Investigation (FD-302's) and the
envelopes in which they were mailed."
(See Movants' Exhibit "A.")
11. As of 4:30 p.m. on October 25, 1990, the Government had
not met with the affected members of the media which is
mandated by the policy set forth in 28 C.F.R. § 50.10(c)*fn6
regarding the undertaking of negotiations with the media prior
to the issuance of a subpoena to a media member. (Tr.
Stipulation at 100.)
12. All counsel in the Porter trial appeared before Judge
Ziegler and were asked individually by the Court whether or not
they had any knowledge or in any way participated in the
dissemination of the information covered by the Court's August
30, 1990 protective Order. Those counsel who appeared before
the Court to participate in the colloquy were:
a. For the Government: Linda L. Kelly, First
Assistant United States Attorney, Craig R. McKay,
former Chief of the Criminal Division, Bruce J.
Teitelbaum, Special Litigation Counsel to the
United States Attorney, Leo M. Dillon, Chief of
the Criminal Division and Stephen R. Kaufman,
Assistant United States Attorney.
b. For the Defendants: Melvin Schwartz, Esquire
and Harold Gondelman, Esquire, for defendant
Charles Porter, Thomas Ceraso, Esquire, for
defendant Raucci, Carl Max Janavitz, Esquire, for
defendant Chiarelli, Thomas Brown, Esquire, for
defendant Durish, Patrick Thomassey, Esquire, for
defendant William Porter, Lee Markovitz, Esquire,
for defendant Levie, Sally A. Frick, Esquire, for
defendant Sosa, ...