Case Information
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA, ) ) ) ) ) ) ) ) ) ) 2:05-CR-0240-GEB
Plaintiff,
ORDER REGARDING APPLICATION BY INTERVENORS FOR ACCESS TO RECORDED EXHIBITS v.
HAMID HAYAT and UMER HAYAT,
Defendants.
On March 20, 2006, the Court heard argument on the
application filed by Non-party and Intervenor KTVU, Inc. (“KTVU”) for access to videotaped exhibits introduced in the trial of Hamid Hayat and Umer Hayat (“Defendants”). KTVU was joined in the motion by Non- parties NBC Subsidiary (KNBC-TV), Inc., KNTV Television, Inc., KNSD- TV, a division of Station Venture Operations, LP, and KXTV, Inc. (“Media Non-Parties”). Grace K. Won of Farella Braun + Martel LLP appeared on behalf of KTVU and the Media Non-Parties. Johnny Griffin III appeared on behalf of Defendant Umer Hayat and Wazhma Mojaddidi appeared on behalf of Defendant Hamid Hayat. S. Robert Tice-Raskin, David Deitch, and Laura Ferris appeared on behalf of the government.
During oral argument, the Court noted it has a duty to “take[] into account . . . the privacy rights of individuals” referenced in the videotaped interviews when determining whether to grant access to the exhibits. Times Mirror Co. v. United States, 873 F.2d 1210, 1216 (9th Cir. 1989); In re Application of Newsday, Inc., 895 F.2d 74, 79-80 (2nd Cir. 1990). The Court observed it had a duty to consider “whose privacy interests might be infringed” because “all the parties who may be harmed by disclosure are typically not before the court.” Newsday, 895 F.2d at 79. In addition, the Court observed it had a duty to consider the “nature and degree of injury” to non-parties should access be granted. United States v. Amodeo, 71 F.3d 1044, 1051 (2nd Cir. 1995).
The Court noted each Defendant identified during the
interviews certain individuals, religious leaders, and/or a religious place of worship, by name and other personal identifiers, as a person or entity involved with terrorist training camps or with violent jihad against the United States. The Court observed the allegations “suppl[ied] only the barest details . . . for believing that [the individuals and the religious entity] may be engaging in criminal activity,” but that if the interviews were broadcast, they may “indicate to the public that [the individuals and the religious entity] have engaged in criminal activity.” The Times Mirror Co., 873 F.2d at 1216. The Court observed that because the individuals and the religious entity are not parties to this or any other known proceeding, they “have no forum in which to exonerate themselves” of the inflammatory accusations. Id. The Court reasoned that “the risk of serious injury to innocent [non]-parties [was] a grave one . . . [because the] injur[y] to the reputations of the [non-parties] [was] likely to be irreparable.” Id. In light of the nature and degree of the injury, the Court concluded the non-parties’ privacy interests “weigh[ed] heavily in the court’s balancing equation.” Newsday, 895 F.2d at 79.
The Court also cited a case from the Third Circuit which recognized the differences between inflammatory allegations appearing in the printed media and being broadcast over the television:
It is far worse . . . when that [information] is broadcast over a television station for all to see and hear. The differences between the various news media cannot be overlooked . . . there is an increased likelihood that [the information] will be repeated in a television broadcast, and have a greater impact, than in the printed media. United States v. Criden, 681 F.2d 919, 923 (3rd Cir. 1982) (in dissent). The Court concluded that to allow broadcast of the inflammatory accusations on television “would be fanning the flames of media interest and inviting pervasive publicity.” United States v. Mouzin, 559 F. Supp. 463, 467 (C.D. Cal. 1983). The Court declined to allow “rebroadcast of evidence which may inflict unnecessary and intensified pain on [non-]parties who . . . are entitled to such protection.” Criden, 681 F.2d at 921 (3rd Cir. 1982). Therefore, the Court concluded that the privacy interests of the individuals and the religious entity weighed in favor of a redaction of certain personal identifiers. The Court granted access to the interviews, pursuant to the following terms:
(1) On or before March 22, 2006, the government will
provide KTVU with a copy of the Hamid Hayat and Umer Hayat videotapes of the interviews that were introduced as exhibits (the “Exhibits”) at the respective trials of Defendants;
(2) KTVU will prepare a redacted copy of the Hamid Hayat and Umer Hayat videotaped interviews. KTVU will redact from the audio of those videotapes the citations noted in Exhibits A and B that are appended to docket entry 248. Exhibit A consists of (a) a copy of the Hamid Hayat transcript that includes both the redactions noted by KTVU in its moving papers and the redactions set forth by the Court at the hearing on March 20, 2006, and (b) the page and line redactions noted in tabular form. Exhibit B consists of (a) a copy of the Umer Hayat [1]
transcript that includes both the redactions noted by KTVU in its moving papers and the redactions set forth by the Court at the hearing on March 20, 2006, and (b) the page and line redactions noted in tabular form;
(3) After preparing the audio redactions, KTVU will provide the Court with a compilation of the audio redactions in a CD or DVD format for the Court’s review;
(4) Following review and approval by the Court, KTVU will provide 2 (two) copies of the redacted videotapes in a CD or DVD format to the Court’s media liaison officer, Carol Davis. These copies will be made available to the media for copying with charges for such copying to be borne by the individual media entities;
(5) KTVU will not broadcast, disseminate, make available or in any other manner publish any portions, in whole or part, of the unredacted material in the Exhibits; and
(6) Upon completing the redactions, KTVU will return the unredacted Exhibits to the government and will affirm under penalty of perjury that all copies of any unredacted material in the Exhibits, in any form, whether DVD, CD or on any computer hard drive or storage device has been destroyed. KTVU will affirm its compliance with this stipulation by submitting to the Court a declaration from an individual with authority to make this affirmation for the company.
IT IS SO ORDERED.
Dated: March 21, 2006
/s/ Garland E. Burrell, Jr. GARLAND E. BURRELL, JR. United States District Judge
[1] The page and line redactions noted in tabular form of Hamid Hayat’s interview, which has been delineated as Exhibit A-1, 28 shall be modified to include the Court ordered redaction at 23:8.