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December 22, 1997


The opinion of the court was delivered by: MCCLURE

 December 22, 1997


 On February 19, 1997, a grand jury sitting in the Middle District of Pennsylvania returned an indictment charging defendant Matthew Porter Alexander, Jr., with: engaging in misleading conduct toward other persons with intent to influence the testimony of other persons in an official proceeding, in violation of 18 U.S.C. § 1512(b)(1) (Count One); arson affecting interstate commerce, in violation of 18 U.S.C. § 844(I) (Count Two); use of fire to commit a federal felony, in violation of 18 U.S.C. § 844(h)(1) (Count Three); interstate transportation in aid of arson, in violation of 18 U.S.C. § 1952(a)(3) (Count Four); wire fraud, in violation of 18 U.S.C. § 1343 (Counts Five, Six); and mail fraud, in violation of 18 U.S.C. § 1341 (Counts Seven through Eleven, inclusive). On Tuesday, November 25, 1997, a jury returned a verdict of guilty as to all charges.

 On Monday, November 24, 1997, the jury gave the court a message that it could not reach a verdict and, contrary to the court's instruction, indicated the vote count. That note has been unsealed by the court. Remaining sealed at this time are various motions and the orders related thereto.

 On December 2, 1997, we issued an order stating that it was the court's intention to unseal the remainder of the record, as at least one member of the media has indicated that he desires access to the sealed documents. However, we permitted the parties to file objections to the unsealing.

 Before the court is Porter's notice of objection to the unsealing of any of the documents remaining under seal, some 24 documents in all.



 In late October, 1994, letters were received at the three institutions *fn1" within the Allenwood Federal Corrections Complex, White Deer, Union County, addressed to the warden of each facility. The letters (all copies of the same letter) set forth White racist sentiments and identified "KKK" *fn2" as the sender. They were turned over to Special Agent Tim Childs of the Federal Bureau of Investigation either shortly after being received (for investigation of the letters themselves) or after November 21, 1994 (as part of the investigation into the fire at the Porter home).

 On October 26, 1994, a copy of the same letter was received by Michael T. Warns, Chief of Police for the Borough of Milton, Pennsylvania. Chief Warns received a second letter on November 9, 1994. The text was different from the first letter, but the sentiments and the general style of the letter were similar to the first.

 In 1994, Matthew Alexander Porter, Jr., who is Black, was an employee of the Federal Bureau of Prisons, assigned to the United States Penitentiary at Allenwood, within FCC-Allenwood. At the time of the fire, he was a corrections counselor in Unit I and had an office in Unit I-A. On Friday, November 18, 1994, Porter left work early to attend a school function, then left with his family for South Carolina. According to Porter's statements to the FBI, he took U.S. Route 15 south from Milton to Harrisburg, then traveled on Interstate Route 81 south. The Porter family arrived in Spartanburg, South Carolina, at about 9:00 a.m. on the following day. Porter was due back at work the following Tuesday.

 At 2:00 a.m. on Monday, November 21, 1994, Porter's immediate supervisor, Don Troutman, received a telephone call from Porter asking for time off on the following Tuesday and Wednesday to visit his sick grandmother. Porter stated that he was calling from Roanoke, Virginia. Troutman approved the request.

 Before the call, unbeknownst to Troutman, the Porter home, a rented townhouse on Georgetown Lane in Milton, had begun to burn. Shortly after 1:00 a.m., neighbors became aware of the fire, notified authorities, and began to knock on doors and windows of the surrounding homes to alert others.

 Investigators found that plastic trash cans at various locations in the home contained plastic bottles which in turn contained gasoline. More gasoline had been spilled on the floor of the dwelling and gasoline-soaked towels were found. No evidence of an electrical fire was found, so the Fire Marshal from the Pennsylvania State Police concluded that the fire was incendiary in nature. It was caused by the igniting of the gasoline spread throughout the structure.

 After the fire was extinguished, numerous copies of the same letters sent to the wardens and Chief Warns were found in the area around the Porter house, mostly in the back of the dwelling. Those collected at the scene were turned over to S.A. Childs for FBI investigation as the fire appeared to be racially motivated arson, i.e. a "hate crime."

 At about noon on November 21, Childs called Spartanburg and spoke to Porter's wife, who had already been notified of the fire. Porter was not there, so Childs asked to have his call returned, which Porter did at about 2:30 or 3:00 p.m. Porter told Childs that he had been in Atlanta the night before, and that he was still in South Carolina because he had called Troutman at 11:00 p.m. the night before and asked off the extra two days.

 The following day, Porter was interviewed at the request of Childs by an agent in the Spartanburg office of the FBI. At that time, Porter said that he had been in Williamsport, Pennsylvania, on the night of the fire when he called Troutman. In later interviews, Porter stated that he had been in Danville, Pennsylvania, and finally Bloomsburg, Pennsylvania, at that time. There were other inconsistencies in the statements given by Porter which will not be recited at length. *fn3"

 In December, 1994, Childs learned that Porter had purchased a second insurance policy covering the contents of his home, a "renter's policy," shortly before the fire. It was upon learning of the second policy that Porter became a suspect in the case. Both policies provided up to $ 30,000.00 in coverage. Also, it was learned that the letters found at the scene of the fire had been produced on a typewriter with print similar to that on the typewriter used at work by Porter and that the copies of the letters had been produced on a photocopier at USP-Allenwood. Moreover, the post-marks on the envelopes showed that the letters had been mailed either at the Milton Post Office or in mailboxes serviced through the Harrisburg sorting center.

 As noted, for the sake of brevity, we have omitted a number of factual matters developed at trial, such as the circumstances of the interviews of Porter. Some of the evidence omitted was of more probative value than other evidence. *fn4" However, the foregoing factual recitation is sufficient for present purposes. In addition, we think a brief overview of our rulings with respect to the subpoenas and subpoenas duces tecum is appropriate for the purpose of placing the ruling embodied in this memorandum into context.

 Porter's defense was that the letters received by Chief Warns and the wardens of the various institutions withing FCC-Allenwood were in fact the work of White racists, and that White racists, not Porter, committed the arson. Of course, if accepted as genuine, the letters certainly would support this contention.

 To support his defense, Porter sought subpoenas for a large number of persons with some knowledge of or experience with racism, both within the BOP and generally, along with supporting documentation. We concluded that not all of this evidence was "material and favorable" to the defense. That is, not every act of racism is connected, and Porter's inability to connect the evidence as to time, place, and identity of actors was fatal to his ex parte applications in many instances.

 Porter, however, argued both in his motions and at trial that such acts are connected as evidencing a pervasive atmosphere of racism and because White supremacist groups have overlapping memberships and communicate with one another, a sort of "support system" for hate groups. Taking this argument to its logical extreme, the assassination of Martin Luther King, Jr., would be evidence that Porter did not set ...

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