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UNITED STATES v. BINGHAM

June 12, 1991

UNITED STATES OF AMERICA, Plaintiff,
v.
KENNY BINGHAM, et al., Defendants


James F. Holderman, United States District Judge.


The opinion of the court was delivered by: HOLDERMAN

JAMES F. HOLDERMAN, UNITED STATES DISTRICT JUDGE

 Before the court is a motion filed by a non-party, National Broadcasting Company, Inc.'s subsidiary in Chicago, WMAQ-TV ("NBC"), to quash a subpoena duces tecum served upon NBC calling for "any and all taped interviews with Henry Leon Harris, including all outtakes."

 FACTS

 Henry Leon Harris, a former high-ranking member of the El Rukn organization and a key government witness, is currently on the witness stand in this criminal case which is being tried to a jury. The defendants on trial are fourteen alleged members of the El Rukn organization charged with racketeering and narcotics conspiracy as well as other alleged violations of the law. The trial is in its tenth week and it is expected that the trial will last several more weeks. Harris will be on the witness stand for about one week. There is a need for an expeditious determination of the issue raised by NBC's motion.

 On June 3, 1991, NBC broadcast on its nightly 10:00 p.m. news program part of an interview of Harris by WMAQ-TV anchorperson Carol Marin that was conducted in 1987. The portion of the interview of Harris broadcast on June 3, 1991 contained statements inconsistent with Harris' testimony to date in this trial.

 On June 4, 1991, defendants, pursuant to Federal Rule of Criminal Procedure 17(c), issued the subpoena duces tecum quoted above. NBC in response to the subpoena provided a videotape containing the portions of the Harris interview which were broadcast on November 2, 1987, June 6, 1988, September 20, 1988 and June 3, 1991 (the "Harris Broadcast Material"). NBC has refused to produce the outtakes of the Harris interview (the "Harris Interview Outtakes") and moved to quash the subpoena to the extent it requests production of those outtakes. *fn1"

 To properly evaluate NBC's motion to quash, the court ordered NBC to turn over the Harris Interview Outtakes to the court for an in camera review. NBC complied with this order. The court has conducted an in camera review of the Harris Interview Outtakes and compared the Outtakes to material otherwise available to the parties for their use in questioning Harris during his testimony. For the reasons stated below, the court grants NBC's motion to quash the subpoena for the videotape of the Harris Interview Outtakes and orders NBC to turn over immediately to the defendants the transcript of the Outtakes prepared by the court's official court reporter.

 DISCUSSION

 In Branzburg v. Hayes, 408 U.S. 665, 707, 92 S. Ct. 2646, 2670, 33 L. Ed. 2d 626 (1972), the Supreme Court acknowledged the existence of First Amendment protection for news-gathering. Although the Seventh Circuit has not yet addressed the question of the qualified privilege protecting journalists in their news-gathering function, several other Circuits and courts in this district have recognized a qualified news-gathering privilege. See United States v. LaRouche Campaign, 841 F.2d 1176, 1180-81 (1st Cir. 1988); United States v. Burke, 700 F.2d 70, 76-77 (2d Cir. 1983); United States v. Cuthbertson, 630 F.2d 139, 146 (3d Cir. 1980) (" Cuthbertson I "); Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 436 (10th Cir. 1977); Zerilli v. Smith, 656 F.2d 705, 712-714, 211 U.S. App. D.C. 116 (1981); Gulliver's Periodicals, Ltd. v. Chas. Levy Circulating Co., 455 F. Supp. 1197, 1202 (N.D. Ill. 1978); U.S. v. Lopez, 14 Media L. Rep. 2203 (N.D. Ill. 1987). The qualified privilege has been held to apply to criminal and civil cases. See Burke, 700 F.2d at 77. This court therefore also will recognize the existence of a qualified news-gathering privilege and applies that privilege to the Harris Interview Outtakes.

 The Supreme Court has determined that a subpoena such as that served upon NBC by the defendants under Federal Rule of Criminal Procedure 17(c) reaches only materials that are "admissible as evidence". Bowman Dairy Co. v. United States, 341 U.S. 214, 71 S. Ct. 675, 679, 95 L. Ed. 879 (1951). Harris is currently on the witness stand still on direct examination by the government. Portions of his testimony to this point are directly contradicted by portions of the Harris Broadcast Material. *fn2" Furthermore, the court, after its in camera review, has determined that numerous statements in the Harris Interview Outtakes also contradict Harris' direct examination testimony. *fn3" Consequently, the court does not believe that defendants in issuing the Rule 17(c) subpoena to NBC are on a fishing expedition. To the contrary, defendants are seeking highly relevant prior inconsistent statements by Harris.

 The videotaped statements may be admissible for impeachment purposes upon compliance with Fed. R. Evid. 613. *fn4" However, defense counsel must first question Harris pursuant to Fed. R. Evid. 613(b) before a part of the videotaped interview, whether Broadcast or Outtakes, would be admitted as extrinsic evidence to impeach Harris. While questioning Harris, defense counsel need not show to him the prior inconsistent statement but must provide it to government counsel when requested to do so pursuant to Fed. R. Evid. 613(a). However, before reaching this point, defense counsel must first know the substance of the prior statements by Harris. To gain that knowledge, defense counsel must have access to the statements. It is the access to the statements in the Outtakes that NBC seeks to avoid by its motion to quash.

 When a privilege, such as the qualified news-gathering privilege, is grounded in constitutional policy, a "demonstrated, specific need for evidence" must be shown before it can be overcome. Riley v. City of Chester, 612 F.2d 708, 716 (3d Cir. 1979), quoting United States v. Nixon, 418 U.S. 683, 713, 94 S. Ct. 3090, 3110, 41 L. Ed. 2d 1039 (1974). This court must balance the defendants' need for the material against the interests underlying the privilege in order to determine whether there ...


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