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United States v. Dorfman

decided: October 1, 1982.


Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 81 CR 269 -- Prentice H. Marshall, Judge.

Cummings, Chief Judge, and Posner and Coffey, Circuit Judges.

Author: Posner

POSNER, Circuit Judge.

The appellants in No. 82-2489 are five persons charged with various federal crimes arising out of an alleged scheme to defraud a union's pension fund. Their trial is to begin in a few days. As part of the investigation that led to their indictment the government engaged in wide-ranging wiretapping for more than a year. Hundreds of persons' telephone conversations were intercepted, yielding more than 2000 reels of taped conversations. The defendants moved under 18 U.S.C. § 2518(10)(a), a part of Title III of the Federal Omnibus Crime Control and Safe Streets Act of 1968, as amended, 18 U.S.C. §§ 2510-2520, to suppress at trial the fruits of the wiretapping of their conversations, on the ground that the wiretapping was unlawful under Title III. At the evidentiary hearing on the motion, the government submitted some 200 exhibits containing wiretap materials. The district judge ordered the exhibits to be sealed. At the conclusion of the hearing he ruled that most of the wiretap evidence that the government contended was relevant to the criminal prosecution had been obtained lawfully.

This ruling precipitated a motion by newspaper publishers and broadcasters to unseal the sealed exhibits, so that they could be inspected and copied. The news media are interested in the exhibits because the defendants include senior officers of labor unions and alleged captains of "organized crime," the crimes charged include bribery of a United States Senator, and as a result of the nature of the alleged crimes and the identity of the defendants the criminal prosecution has already been publicized widely.

The district judge (in two orders that we shall treat as one for the sake of simplicity) directed that most of the sealed exhibits be unsealed; some of these, however, are not to be unsealed until the jury has been empaneled. The defendants-appellants argue that the release of any of the sealed exhibits, unless and until they are put into evidence at the trial (most of them will not be), would violate both Title III and the constitutional guarantee of a fair trial.

We must decide first whether we have jurisdiction of this appeal from what is technically an interlocutory order. We have some difficulty with the argument that the order is in effect the denial of an injunction to protect the defendants' right of privacy under Title III. Orders denying injunctions are, of course, appealable regardless of finality, 28 U.S.C. § 1292(a)(1), but Title III does not provide for injunctive relief (a deliberate omission, see S. Rep. No. 1097, 90th Cong., 2d Sess. 107 (1968)); and while it does of course provide for motions to suppress, in other contexts such motions have not been considered "injunctions" for purposes of section 1292(a)(1), as we noted just the other day in holding that these appellants could not appeal the district judge's order denying their motion to suppress the wiretap evidence as unlawfully obtained. United States v. Dorfman, 690 F.2d 1217 at 1223 (7th Cir. 1982).

The appellants also rely however on the collateral order doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 545-47, 93 L. Ed. 1528, 69 S. Ct. 1221 (1949), which permits the immediate appeal of an order that is at once so far separate from the main case that the appeal will not interrupt and delay the progress of the trial, and likely to become moot if judicial review is postponed until the final judgment in the main case is appealed. To refuse to allow immediate appeal in such a case would have no basis in the final-judgment rule (28 U.S.C. § 1291), which seeks to expedite the trial while preserving a meaningful right of judicial review of the legal rulings made at the trial.

The motion to unseal the exhibits, and this appeal insofar as it is based on Title III from the grant of that motion, compose a proceeding that is distinct from--in the practical sense of not interfering with--the criminal trial scheduled to begin shortly. There is of course a relationship between the trial and the motion; that is why we have expedited the consideration of this appeal. But the moving parties--representatives of the news media--are not parties to the criminal proceeding, and we have not been asked to stay the trial while we consider this appeal. The trial will go forward, on schedule, however the appeal is decided. This distinguishes the present case from United States v. Dorfman, supra, which held that an order denying a Title III motion to suppress wiretap evidence as unlawfully obtained is not appealable as a collateral order. Because such a motion is directed to the use of specific evidence at trial, a direct appeal from the order disposing of it could delay the trial; this appeal cannot. Cf. id., slip op. at 12.

Whichever way the district judge ruled on this motion his ruling would probably be moot as a practical matter by the time the trial was finished. If the district judge denied the motion, and the motion could not have been appealed, the exhibits that the movants wanted to use in their news stories might well lose all newsworthiness by the time the trial was over. If the district judge granted the motion, as he did, and his action could not be appealed, the privacy that the defendants claim to be entitled to under Title III would be gone forever as soon as the media began disseminating their news stories; and it is doubtful, to put it mildly, that if the appellants ultimately convinced this court or the Supreme Court that the motion had been improperly granted, they could get any monetary redress. They could not against the district judge, of course; nor, in all probability, against the news media, since "good faith reliance on a court order . . . . shall constitute a complete defense to any civil . . . . action" under Title III, 18 U.S.C. § 2520, and by hypothesis the media would be acting in reliance, presumably good-faith reliance, on a court order.

The question of appealability might be answered differently if this appeal were based solely on the appellants' argument that public disclosure of the wiretap evidence will prevent their getting a fair trial. Not only could such an appeal delay the trial, but the appellants, though not the media, could look forward to having an effective remedy if it turned out that the motion had been granted improperly--an order for a new trial. But Title III protects a different interest, privacy, which can be lost without a criminal conviction.

So we have jurisdiction, and can turn to the merits. Title III makes it a crime to disclose wiretap evidence (transcripts, logs, summaries, etc.) only if the evidence was obtained in violation of Title III and the disclosure is willful. 18 U.S.C. § 2511(1)(c). But by permitting disclosure of lawfully obtained wiretap evidence only under the specific circumstances listed in 18 U.S.C. § 2517, Title III implies that what is not permitted is forbidden (see also S. Rep. No. 1097, supra, at 91), though not necessarily under pain of criminal punishment. The implication is reinforced by the emphasis the draftsmen put on the importance of protecting privacy to the extent compatible with the law enforcement objectives of Title III. See Congressional Findings following 18 U.S.C. § 2510; S. Rep. No. 1097, supra, at 66-67; Gelbard v. United States, 408 U.S. 41, 47-51, 33 L. Ed. 2d 179, 92 S. Ct. 2357 (1972).

Now the only pertinent exception in section 2517 to this implied prohibition is in subsection (3), which (as amended in 1970) provides: "Any person who has received, by any means authorized by this chapter [Title III], any information concerning a wire or oral communication, or evidence derived therefrom intercepted in accordance with the provisions of [Title III] may disclose the contents of that communication or such derivative evidence while giving testimony under oath or affirmation in any proceeding held under the authority of the United States or of any State or political subdivision thereof." The function of this provision is obvious. Since one of the main purposes of Title III is to allow the fruits of at least some wiretaps to be used in criminal investigations and prosecutions (another, as mentioned, is to protect privacy), section 2517(3) is necessary so that the fruits of lawful wiretapping can be used as evidence in criminal proceedings. The draftsmen must have known that most criminal proceedings are conducted in public, so probably they expected (if they thought about the matter) that most testimony authorized by section 2517(3) would end up in the public domain. But we find no evidence that they wanted to create a right of public access. The privilege to disclose created by section 2517(3) continues in force "while giving testimony." There is no separate privilege to publicize testimony that was given in camera. And the right of the news media to get access to testimony is derivative from the public's right, if any. Nixon v. Warner Communications, Inc., 435 U.S. 589, 609, 55 L. Ed. 2d 570, 98 S. Ct. 1306 (1978).

The district judge in this case sealed the exhibits submitted by the government in the supprssion hearing in order to protect the defendants' right of privacy under Title III and their constitutional right to a fair trial. We need not decide whether he was required to seal the exhibits, either by Title III or by the due process clause of the Fifth Amendment (which guarantees criminal defendants the right to a fair trial and implicitly therefore at least some protection against prejudicial pretrial publicity), though we note that the strict prohibition in Title III against disclosure of unlawfully obtained wiretap evidence would be undermined by public disclosure of wiretap evidence at a suppression hearing before the judge ruled on the lawfulness of the wiretaps. See United States v. Cianfrani, 573 F.2d 835, 857 (3d Cir. 1978). The defendants in this case have argued that the judge did not go far enough to protect their rights in the suppression hearing--that he should have conducted the entire hearing in camera. No one is arguing that he should not have done what he did--seal the exhibits. Having done so, he was not authorized by any provision that we are able to find in Title III to release them to the public. The only lawful way they can be made public over the defendants' objection is by being admitted into evidence in the criminal trial or in some other public proceeding within the scope of section 2517(3). The usual disposition of evidence ...

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