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IN RE WILLIAMS

May 8, 1991

IN RE GRAND JURY SUBPOENA OF JANET WILLIAMS. IN RE GRAND JURY SUBPOENA (PITTSBURGH POST-GAZETTE). IN RE GRAND JURY SUBPOENA OF WPXI, INC., COX ENTERPRISES, INC. IN RE GRAND JURY SUBPOENA (WESTINGHOUSE BROADCASTING).


The opinion of the court was delivered by: Lee, District Judge.

MEMORANDUM OPINION

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 Judge.*fn2

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 media.

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 production of:

  Any and all original documents received by
  [respondent's name] by United States mail
  pertaining to the Criminal trial of United States
  of America v. Charles K. Porter, et al., at
  Criminal No. 90-35 in Pittsburgh, Pennsylvania,
  including Federal Bureau of Investigation reports
  (FD-302's) prepared by special Agent

  Roger Greenbank on January 21, 1988, or April 18,
  1989, and the envelope in which the documents were
  mailed.

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.

DISCUSSION OF ISSUES

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 case.

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[03] 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 source.*fn3

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 confidentiality.

FINDINGS OF FACT

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, 1990.)

5. The FD-302's received by Mr. Bucsko describe interviews with Marvin "Babe" Droznek, a witness called by the Government during the Porter trial. In those interviews, Droznek related rumors about corruption involving various public officials, including a retired Federal Judge who was the father of one of the prosecutors in the Porter trial. The Court previously had ruled that the information contained in the FD-302's of Marvin Droznek was irrelevant and inadmissible in the Porter trial for use during cross examination. (Tr. at 21, 22, 34, December 20, 1990.)

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, ...

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