In re Special Proceedings

373 F.3d 37

In re SPECIAL PROCEEDINGS.

No. 03-2052.

No. 04-1383.

United States Court of Appeals, First Circuit.

Heard May 7, 2004.

Decided June 21, 2004.

COPYRIGHT MATERIAL OMITTED

Jonathan M. Albano with whom Bingham McCutchen LLP, William P. Robinson III, Edwards & Angell, LLP, Susan E. Weiner, Brande M. Stellings and National Broadcasting Company, Inc. were on brief for appellant-third-party witness James Taricani.

Laura R. Handman, Jeffrey L. Fisher, Davis Wright Tremaine LLP, Henry S. Hoberman, ABC, Inc., David A. Schulz, The Associated Press, Levine Sullivan Koch & Schulz, L.L.P., Jonathan S. Piper, Blethen Maine Newspapers, Preti Flaherty Beliveau Pachios & Haley LLC, Susanna M. Lowy, CBS Broadcasting Inc., David C. Vigilante, Cable News Network LP, LLLP, Stuart D. Karle, Dow Jones & Company, Inc., Barbara W. Wall, Gannett Company, Inc., Eve B. Burton, Jonathan Donnellan, The Hearst Corporation, Gordon Yamate, Knight-Ridder, Inc., Kenneth M. Vittor, William Farley, The McGraw-Hill Companies, Inc., George Freeman, The New York Times Company, Rene P. Milam, Newspaper Association of America, Stephen Fuzesi, Jr., Newsweek, Inc., Jan F. Constantine, NYP Holdings, Inc., Russell F. Coleman, The Providence Journal Company, Belo Corp., Lucy A. Dalglish, The Reporters Committee for Freedom of the Press, Robin Bierstedt, Time Inc., Stephanie S. Abrutyn, Karlene Goller, Tribune Company, Eric N. Lieberman and WP Company LLC, d/b/a The Washington Post, on brief for ABC, Inc., The Associated Press, Blethen Maine Newspapers, CBS Broadcasting Inc., Cable News Network LP, LLLP, Dow Jones & Company, Inc., Gannett Company, Inc., Globe Newspaper Company, Inc., The Hearst Corporation, Knight-Ridder, Inc., The McGraw-Hill Companies, Inc., The New York Times Company, Newspaper Association of America, Newsweek, Inc., NYP Holdings, Inc., The Providence Journal Company, The Reporters Committee for Freedom of the Press, Time Inc., Tribune Company, and The WP Company LLC, d/b/a The Washington Post, Amici Curiae.

Marc DeSisto with whom DeSisto Law, Joan McPhee, William S. Eggeling and Ropes & Gray LLP were on brief for appellee United States of America and the Special Prosecutor.

Before BOUDIN, Chief Judge, LIPEZ and HOWARD, Circuit Judges.

BOUDIN, Chief Judge.

This appeal is an outgrowth of two federal corruption cases involving city officials in Providence, Rhode Island. One set of indictments — the Glancy case — named tax officials Joseph Pannone, David Ead, and Rosemary Glancy. See In re Special Proceedings, 291 F.Supp.2d 44, 47 (D.R.I.2003). The second indictment — the Corrente case — also named Pannone in addition to Frank Corrente, who was Providence Mayor Vincent A. Cianci, Jr.'s administrative director; a superseding indictment handed down in the Corrente case on April 2, 2001, added the mayor and three other defendants. Id.

On August 8, 2000, while Corrente was awaiting trial and the grand jury investigation of other, later named defendants was continuing, the district court entered a protective order prohibiting counsel in the Corrente case from disclosing the contents of audio and video surveillance tapes that had been made by law enforcement officials and furnished to defense counsel during discovery. The aim was to safeguard the on-going grand jury investigation of Cianci and to avoid pretrial publicity that could prejudice the defendants' right to a fair trial. In re Special Proceedings, 291 F.Supp.2d at 47.

The order, assented to by both sides, read:

Upon Motion of the government, and with the consent of all parties, and for good cause having been shown, it is hereby ORDERED that the consensual audio and video recordings ("Recordings") discoverable in the above-captioned matter shall be subject to the following protective order. Counsel are hereby ordered not to disclose the contents of said Recordings to any persons other than the defendant or those deemed essential by counsel for the preparation of their client's defense, or in the case of the government, in the preparation for trial or as part of any continuing investigation. All motions or other filings which cite any portion of the Recordings other than by reference shall be filed under seal until further order of this Court. Nothing in this order shall prevent any party from moving for relief from this order for good cause shown.

The order was entered by Judge Lagueux. On April 10, 2001, just after the handing down of the superseding indictment, the case was transferred to Chief Judge Torres.

On February 1, 2001, while the grand jury investigation of Cianci was still in progress, James Taricani, an investigative television reporter, and his employer WJAR Channel 10, a Providence television station owned and operated by NBC, aired one of the videotapes. In re Special Proceedings, 291 F.Supp.2d at 46-47. The tape in question showed a government witness handing Corrente an envelope that allegedly contained a cash bribe for Corrente and/or Cianci. Id. at 47. Who leaked the tape was not disclosed: Taricani said he had given the source a pledge of confidentiality.

Defendants then asked the district court to investigate whether any participant in the case had violated the protective order by leaking the tape to Taricani and, if so, to impose appropriate sanctions. On May 31, 2001, the district court issued an order stating in part:

The release and/or disclosure of the contents of the aforesaid videotape is a serious matter. Such acts, if continued could threaten the rights of all parties to a fair trial. In addition, the release and/or disclosure appear to have violated both the confidentiality of Grand Jury proceedings and the August 8, 2000, protective order. If so, such release and/or disclosure may constitute criminal contempt. See, Fed.R.Crim.P.R. 6(e).

The order continued by explaining that such a matter would ordinarily be referred to the Department of Justice for investigation; but because government prosecutors were involved in the pending case against Corrente and others, the court decided to appoint Marc DeSisto, a private attorney (who had formerly been a prosecutor), to act as special prosecutor to investigate the disclosure and to prosecute for criminal contempt anyone against whom adequate evidence was uncovered.

After interviewing approximately fourteen individuals and deposing several, and "[h]aving exhausted what he believed to be all other means of obtaining the information necessary to conclude his investigation," DeSisto sought and received the issuance of a subpoena by the court requiring Taricani to appear for a deposition. In re Special Proceedings, 291 F.Supp.2d at 47. At the deposition, Taricani refused to answer any questions regarding the identity of the person from whom he had received the tape, asserting a "newsman's privilege" not to reveal confidential sources. Id. at 47-48. DeSisto then filed a motion to compel, which the district court granted after a hearing on October 2, 2003. Id. at 47-48, 60.

Following an abortive appeal from the order compelling testimony, which this court dismissed as premature, Taricani appeared at a February 13, 2004, deposition. Again he refused to answer questions about his source for the tape. After a hearing, the district court on March 16, 2004, found Taricani in civil contempt, gave him until noon the following day to purge himself of the contempt order by answering the questions posed by the special prosecutor, and ordered him to pay a sum of $1,000 a day for each day thereafter until he complied.

Taricani then sought review, and a stay, of the civil contempt order. We granted a stay of the order pending expedited review; our stay order expressed doubts about Taricani's prospects (in light of Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972)), but said that the claimed threat to First Amendment interests justified a stay, given our expedition of the appeal and the lack of demonstrable harm from a brief further delay in the investigation.

On appeal, Taricani first argues that because the district court failed to ask the government to pursue the criminal proceeding, the appointment of the special prosecutor violated Fed.R.Crim.P. 42(a)(2), the Supreme Court decision that prompted it, Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 107 S.Ct. 2124, 95 L.Ed.2d 740 (1987), and separation of powers principles said to underlie the Young decision.

Young overturned a lower court decision appointing a self-interested special prosecutor to pursue a contempt proceeding. Young, 481 U.S. at 802, 814, 107 S.Ct. 2124. However, the Young decision also said that the rationale for a court to appoint its own prosecutor was "necessity" and therefore "a court ordinarily should first request [the government] to prosecute contempt actions, and should appoint a private prosecutor only if that request is denied." Id. at 801, 107 S.Ct. 2124. Rule 42 was amended in 2002 ("to reflect the holding in Young," advisory committee note) by adding the following language:

Appointing a Prosecutor. The court must request that the contempt be prosecuted by an attorney for the government, unless the interest of justice requires the appointment of another attorney. If the government declines the request, the court must appoint another attorney to prosecute the contempt.

Fed.R.Crim.P. 42(a)(2).

Taricani, of course, has been held in civil contempt — not criminal contempt governed by Rule 42 — but the civil contempt arose out of the investigation by, and at the request of, DeSisto who was appointed to conduct a criminal contempt investigation governed by Rule 42 and Young. Taricani's view is that the supposed Rule 42/Young violation is so fundamental that it undermines the district court's authority to compel by civil contempt answers to questions propounded by such a prosecutor in a criminal proceeding even if the court wants them answered.

Some case law suggests that...