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September 7, 1982


The opinion of the court was delivered by: Prentice H. Marshall, District Judge.


In this criminal case, defendants are charged in a multi-count indictment with crimes including conspiracy to bribe a United States Senator in violation of 18 U.S.C. § 201(b)(1) and 371 (1976). That fact would pique the public's interest. Moreover, the defendants include the President of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America ("Teamsters"), two defendants said by the government to be involved in organized crime, and two officials of the Teamsters' Central States, Southeast and Southwest Areas Pension Fund who were allegedly part of a scheme to defraud the Pension Fund, in violation of 18 U.S.C. § 1343 (1976). If that were not enough to make the matter of some considerable public interest and import, this case involves what appears to be the most pervasive wiretap in the history of the federal wiretap statute, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended, 18 U.S.C. § 2510-20 (1976 & Supp. II 1978) ("Title III").

Thus, the case has generated a substantial amount of public interest. Understandably, the publicity has distressed defendants, who fear that it may prejudice potential jurors and jeopardize defendants' right to a fair trial.

On March 22, 1982, we ruled that defendants would receive an evidentiary hearing on certain aspects of their allegations that the electronic surveillance involved in this case was unlawful. A four week evidentiary hearing followed, in which defendants ventilated their charges that the government's surveillance was tainted by various forms of misconduct, including deliberate misrepresentations made to former Chief Judge Parsons of this court in order to obtain authorization to conduct the surveillance, and that the surveillance unreasonably intruded on defendants' privacy. Allegedly to minimize the adverse publicity which they expected the hearing would generate, defendants moved that the hearing be closed to the public. We denied the motion, but ruled that Title III granted defendants a protected interest in preventing the public disclosure of their electronically intercepted conversations prior to a determination that the interception was lawful. Therefore, we ruled that surveillance materials (applications, transcripts, logs, summaries, etc.) would be received under seal as exhibits and would not be disclosed in open court. This procedure, we believed, struck an appropriate balance between the public's interest in attending judicial proceedings and defendants' protected privacy interests under Title III. Accord, United States v. Cianfrani, 573 F.2d 835, 855-60 (3d Cir. 1978). Our ruling was affirmed on appeal. See United States v. Dorfman, No. 82-1462 (7th Cir. Mar. 25, 1982). During the hearing, we adhered to the sealing procedure, and the bulk of the nearly 200 exhibits introduced into evidence at the hearing were not made public.*fn1

On June 1, 1982 we ruled that virtually all of the electronic surveillance said by the government to be relevant to the merits of the case was lawful. On July 9, 1982, defendants moved the court to reconsider its ruling. We denied the motion on July 13, 1982. Appeals have been taken from those orders by defendants and by certain non-defendants whose intercepted conversations will be offered at trial.

Now, Chicago Tribune Company, William B. Crawford, Jr., CBS, Incorporated, Dow Jones and Company, American Broadcasting Companies, Inc., National Broadcasting Company, and Field Enterprises, Incorporated, all of whom have earlier been granted leave to intervene in the case on defendants' motion to close the suppression hearing, have filed a motion in which they request that the court unseal the exhibits admitted into evidence under seal during the suppression hearing and grant them permission to inspect and copy the exhibits. Defendants oppose the motion. The motion is also opposed by non-defendants David Dorfman, Sol Schwartz, Morris Weiser, Morton J. Harris, and Ira Burman, all of whom were intercepted during the course of the government's surveillance and argue that their privacy rights would be infringed if the court permits the seal to be removed and grants the public access to the exhibits.

All parties recognize that there is a common law right to inspect and copy judicial records. Nixon v. Warner Communications, Inc., 435 U.S. 589, 597, 98 S.Ct. 1306, 1311, 55 L.Ed.2d 570 (1978) (dictum); United States v. Edwards, 672 F.2d 1289, 1292-93 (7th Cir. 1982); Belo Broadcasting Corp. v. Clark, 654 F.2d 423, 429-30 (5th Cir. 1981); In re National Broadcasting Co. (Jenrette), 653 F.2d 609, 612 (D.C. Cir. 1981); United States v. Criden, 648 F.2d 814, 819 (3d Cir. 1981); In re National Broadcasting Co. (Myers), 635 F.2d 945, 949-50 (2d Cir. 1980); United States v. Dean, 527 F. Supp. 413 (S.D.Ga. 1981); United States v. Carpentier, 526 F. Supp. 292, 295-96 (E.D.N.Y. 1981).*fn2 "What transpires in the court room is public property." Craig v. Harney, 331 U.S. 367, 374, 67 S.Ct. 1249, 1254, 91 L.Ed. 1546 (1947). Exhibits introduced at an evidentiary hearing are part of the record of a case. See United States v. Hubbard, 650 F.2d 293, 299 (D.C. Cir. 1980); United States v. Mitchell, 551 F.2d 1252, 1259-60 (D.C. Cir. 1976), rev'd on other grounds sub nom. Nixon v. Warner Communications, Inc., 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978); Fed.R.App.P. 10(a) ("The original papers and exhibits filed in the district court . . . shall constitute the record on appeal in all cases."). Thus, the common law right of access extends to exhibits used in an evidentiary hearing, especially when they are relied upon by the court in reaching its decision, as were the transcripts and other surveillance materials at issue here. See United States v. Hubbard, 650 F.2d 293, 217 (D.C. Cir. 1980); Wilk v. American Medical Association, 635 F.2d 1295, 1299 n. 7 (7th Cir. 1980); Zenith Radio Corp. v. Matsushita Electric Industrial Co., 529 F. Supp. 866, 897-901 (E.D.Pa. 1981); Hearst Corp. v. Vogt, 62 A.D.2d 840, 406 N.Y.S.2d 567 (1978). See generally Doe v. Stegall, 653 F.2d 180 (5th Cir. 1981).

  The record of a trial is no less a part of the
  proceeding than the actual examination of
  witnesses. Where, as here, the controversy
  presented to the court was limited to a single
  major issue — the validity of the search — and
  where the defendants contended that their claim of
  invalidity was proven by all the documents they
  caused to be admitted into evidence, making the
  documents available in the public record becomes
  even more important. Absent such access, the
  public's opportunity to assess the validity of the
  court[']s ruling as applied to these criminal
  defendants would be virtually nonexistent. [ ] The
  central issue in the suppression proceedings . . .
  would be obscured from the public and the
  press. . . .
    The requirement for public disclosure of the
  evidentiary record in a court proceeding which
  results in a judicial ruling naturally flows from
  the constitutional requirement that the trial be
  public. Even though a motion to suppress may not be
  a "trial" there is no difference in the ultimate
  requirement that the record be public. A judicial
  proceeding cannot be said to be public if the
  public be denied access to the evidence admitted as
  relevant to the issues before the court. It is as
  important to public disclosure of judicial
  proceedings that the public be able to read written
  evidence in the record as it is that they be able
  to hear oral testimony.

United States v. Hubbard, 650 F.2d 293, 330 (D.C. Cir. 1980) (dissenting opinion) (emphasis in original).*fn3 Here too, defendants contend that virtually all the evidence is relevant because it demonstrates, through its volume as well as its substance, the impermissibly broad scope of the government's surveillance, and because it shows that the government misled Chief Judge Parsons when it obtained authorization to conduct the surveillance. The exhibits were plainly central to the suppression hearing,*fn4 and the common law right of access is applicable to them.

Defendants and non-defendants opposing disclosure claim that the common law right of access has no application to exhibits received in evidence under seal, relying on a footnote from the Second Circuit's decision in Myers.*fn5

  If, for justifiable reasons, a particular item
  were entered into evidence under seal, the
  presumption [in favor of access] would obviously
  not apply, because for that item of evidence, the
  session of court was not public.

635 F.2d at 952 n. 4 (dictum).*fn6 However, defendants overlook the qualification contained in the Myers footnote, that the evidence be received under seal "for justifiable reasons." If there is no longer adequate justification to maintain the seal, then presumably the Myers dictum is no bar to disclosure. More fundamentally, however, if the common law presumptive right of access were to vanish merely because of the presence of a seal on evidence, serious first amendment problems would be created. We construe the common law right of access to require an adequate justification for maintaining a seal ...

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