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United States v. Blagojevich

August 21, 2009


The opinion of the court was delivered by: James B. Zagel United States District Judge

Judge James B. Zagel


The Chicago Tribune Company ("Tribune") has sought leave to intervene for the purpose of seeking to unseal the briefs that were filed under seal relating to Defendant Cellini's motion to suppress evidence obtained during the course of court-authorized wiretaps.*fn1 Cable News Network, Inc. ("CNN") has filed a similar motion for immediate access to the same materials, which I consider here (the Tribune and CNN, collectively "media intervenors"). Defendant Cellini has not expressed a view on the issue, nor have any of the other defendants. The government concedes that it would be appropriate for the parties to file public versions of the briefs and, in fact, has already filed a proposed redacted version of its brief. However, the government maintains there are sections of the briefs, most notably some of the attached exhibits, which relate to non-public aspects of the Levine Wiretaps that should remain under seal pursuant to the statutory requirements of Title III, 18 U.S.C. §§ 2517, 2518(8)(b). In particular, the government believes the following sections of the filed briefs and exhibits should remain under seal (the "Wiretap Materials"):

(1) the entirety of the government applications and attached affidavits and any sections in the briefs that refer to facts alleged about the investigation contained in the applications and/or affidavits;

(2) the entirety of the orders authorizing the Levine Wiretaps;

(3) the entirety of the Supplemental Report, the 2517(5) Motion, and the 2517(5) Order;

(4) the sections of the Minimization Instructions that identify the names of the individuals identified as either Interceptees or Violators; and

(5) the portion of the transcripts where no corresponding recording from the Levine Wiretaps was admitted into evidence during the trial of United States v. Rezko.

The government argues that the privacy interests of the people intercepted on the Levine Wiretaps are a significant concern in this case because of the highly publicized nature of the investigation and because some of those people have never been charged or publicly identified as being intercepted in the course of the government's investigation.

As a threshold matter, the Tribune has standing to seek access to court records. See United States v. Inzunza, 303 F. Supp. 2d 1041, 1044 (S.D. Ca. 2004). The Tribune asserts legitimate media interests, and I grant the Tribune's motion to intervene such that those interests may be heard. See Globe Newspaper Co. v. Superior Court for Norfolk County, 457 U.S. 596, 609 n.25 (1982); In re Associated Press, 162 F.3d 503, 507 (7th Cir. 1998).


Title III sets forth procedures regarding court authorization of real-time surveillance of all kinds of electronic communications in criminal investigations. Such authorization normally requires, before a wiretap can commence, a court order issued by a judge who must conclude, based on an affidavit submitted by the government, that there is probable cause to believe that a crime has been, is being, or is about to be committed. Once wiretap evidence is obtained, Title III strictly limits the disclosure of such evidence as well as the applications, orders, and related filings associated with wiretaps. With regard to the disclosure of the contents of a wiretap, "the question is whether Title III specifically authorizes such disclosure, not whether Title III specifically prohibits the disclosure, for Title III prohibits all disclosures not authorized therein." Smith v. Lipton, 990 F.2d 1015, 1018 (8th Cir. 1993); see also United States v. Dorfman, 690 F.2d 1230, 1232 (7th Cir. 1982) ("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). With regard to applications made and orders granted under Title III, a separate section provides that those materials "shall be sealed by the judge." 18 U.S.C. § 2518(8)(b). "Such applications and orders shall be disclosed only upon a showing of good cause before a judge of competent jurisdiction." These limitations on disclosure are designed to protect the privacy interests of people intercepted in conversation (to the extent compatible with the law enforcement objectives of Title III), Gelbard v. United States, 408 U.S. 41, 47-48 (1972), as well as the confidentiality of the government's investigation and the authenticity of the application and order. United States v. Florea, 541 F.2d 568, 575 (6th Cir. 1976).

The common law right of access does not apply to Title III materials, whose disclosure is addressed in a comprehensive statutory scheme. City of Milwaukee v. Illinois, 451 U.S. 304, 313-14 (1981) ("[F]ederal common law . . . is resorted to [only] in absence of an applicable Act of Congress."). While the common law right of access creates a strong presumption in favor of public access to materials submitted as evidence in open court, this presumption does not apply to "materials properly submitted to the court under seal." United States v. Corbitt, 879 F.2d 224, 228 (7th Cir. 1989) (citing The Times Mirror Co. v. The Copley Press, Inc., 873 F.2d 1210, 1219) (9th Cir.) ("there is no [common law] right of access to documents which have traditionally been kept secret for important policy reasons.")). The Wiretap Materials at issue here have traditionally been kept secret for important policy reasons, and those materials were properly submitted under seal in conjunction with Defendant Cellini's motion to suppress. See In re Applications of Kansas City Star, 666 F.2d 1168, 1175 (8th Cir. 1981). At bottom, Congress, which deliberately and expressly limited the right of access to Title III materials, trumps the federal common law right of access to the documents at issue here.

Neither does the First Amendment right of access to judicial proceedings provide any broader right to disclosure of the actual wiretap evidence. With regard to such evidence, Dorfman makes clear that under Title III I am not authorized to weigh the harm of unsealing to the intercepted individuals' privacy against the newsworthiness of those documents. 690 F.2d at 1233. Dorfman further rejected the notion that the First Amendment commanded a different result. Id. at 1233-34 (right of ...

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