*1 * * *
We will GRANT the Petition for Review BIA, order of the VACATE the
order, and REMAND for further proceed-
ings consistent with this opinion.
UNITED America, STATES of
Appellant in No. 06-3195
Cyril H. WECHT, Appellant
in No. 06-3098
WPXI, Inc., Appellant Intervenor
in Nos. 06-3099 and 06-3202 Publishing
PG Co. Pittsburgh d/b/a
Post-Gazette, Appellant Intervenor
Nos. 06-3212 and 06-3213
Tribune-Review Publishing Co., and
Hearst-Argyle Stations, Inc. d/b/a
WTAE-TV, Intervenors. Cyril re: Dr. H. Wecht. 06-3098,
Nos. 06-3099, 06-3195, 06-3202,
06-3212, 06-3213, 06-3704.
United States Court Appeals,
Third Circuit.
Argued Sept. 2006.
Filed: April
As July Amended *3 L. Richard (Argued), McDevitt
Jerry S. Bar- L. Rush, Amy A. Mark Thornburgh, & Kirkpatrick Ranjan, rette, J. Nicholas LLP, Pitts- Graham Nicholson Lockhart H. Wecht. Cyril burgh, Liti- Appellate (Argued), Letter Douglas A. Division, Richard Counsel, Civil gation Section, Appellate (Argued), Friedman Depart- Division, States United Criminal DC, Mary Justice, Washington, ment *4 Attorney, States Buchanan, United Beth General, Attorney Keisler, Assistant Peter United Eberhardt, Assistant L. Robert Haywood Ross Attorney, Rebecca States Attor- States United Assistant (Argued), Office (Argued), Stallings Stephen S. ney, PA, Pittsburgh, Attorney, States of United of America. States for United J. David (Argued), P. DeForest Walter Kos- Bobb, DeForest Berardinelli, George PA, Pittsburgh, Kaplan, & Yokitis celnik WPXI, Inc. Intervenors for Thomas W. (Argued), Bird J. David Jr., Reed Rodkey, Joseph F. McGough, PA, Interve- Pittsburgh, LLP, Smith Pitts- Publishing Co. D/B/A PG nors Post-Gazette. burgh (Argued), Strass- Strassburger A. David P.C., Potter, & McKenna, Gutnick burger, Tribune- Intervenor PA, for Pittsburgh, Hearst-Argyle Publishing Co. Review WTAE-TV. Stations, Inc. D/B/A FISHER, and FUENTES, Before: Judges. BRIGHT,* Circuit COURT THE OF OPINION Judge. FUENTES, Circuit forensic Wecht, acclaimed Cyril Dr. January indicted pathologist, designation. by * States Bright, United H. Myron Honorable Circuit, sitting Eighth Appeals 2006, for the crimes of theft of honest part of this investigation, Orsini signed services, fraud, mail fraud, wire and theft affidavits April 2005 for three search from an organization receiving federal warrants, the execution of which were cov- funds. The 84-count indictment asserts ered local television stations and news- that he unlawfully used his office papers. as the coroner of Allegheny County, Wecht asserts that his indictment was Pennsylvania, private gain. financial “drafted as much for media attention as alleges that Wecht, Dr. legal merit,” and that the U.S. Attorney for example, billed private clients improp- “personally contributed to the extensive erly, falsified transportation records, used exposure media by calling a highly unusual County employees for work related to his press conference which was widely attend- private practice, provided cadavers to ed the media.” Id. 11-12. Wecht a local college in exchange for laboratory claims the U.S. Attorney’s comments “de- space. Wecht has denied these charges, monizefd]” him and “portrayed [him] as a claiming they are unsupported and politi- craven bodysnatcher.” Id. at 13-14. cally motivated. His trial was scheduled to begin in *5 2006, October but we have Soon after the indictment, Wecht and stayed it pending disposition of three ap- government worked on a proposed plications (1) that are before us: Weeht’s Order, Pretrial which they discussed with challenge of Local Rule 83.1 of the U.S. the Court at two status conferences. On District Court for the Western District of March 2006, the District Court adopted Pennsylvania, which limits attorney the final proposed Pretrial Order without speech (2) about cases, the government’s objection from either party.1 The Pretrial appeal of the District Court’s decision to Order contained provisions various rele- unseal records, certain (3) and Weeht’s vant to the matters presently before us. petition for an order disqualifying the tri- Section 9 of the Pretrial Order incorporat- al judge. ed Western District of Pennsylvania Local Rule 83.1. The Rule is entitled “Free
I. FACTUAL AND PROCEDURAL Press —Fair Trial Provisions” and limits BACKGROUND what attorneys can say about ongoing After an FBI investigation led by Spe- criminal cases. Specifically, attorneys cial Agent Bradley Orsini, Wecht was in- may not release information that “a rea- dicted on January 20, 2006. Wecht con- person sonable expect would to be dissemi- tends that his indictment stemmed from nated by ... means communica- his public with feud Stephen Zappala, the tion ... if there ais reasonable likelihood Allegheny County District Attorney. Ac- that such dissemination will interfere with cording Wecht, this feud was “caused by a fair trial or prejudice otherwise the due Zappala’s failure to investigate or prose- justice.” administration of W.D.PA.LR cute white policemen who had killed 83.1(A). black In addition, the Rule prohibits citizens in deaths ruled a species of homi- attorneys from making public statements cide by Dr. Wecht.” Wecht Br. at 7. about a number subjects, including: the Wecht claims that in order to end their defendant’s prior criminal record or repu- public debate, Zappala prompted an tation, FBI the existence a confession, investigation into Weeht’s activities. As identity of prospective witnesses, the pos- 1. At an stage earlier government appeal; raised the defense apparently did not raise some objections that are not relevant to this objections during the drafting process. provided government April On of the merits or the plea, guilty a sibility of about list of preliminary awith Wecht 83.1(C)(l)-(6). The W.D.PA.LR case. more consisted exhibits The exhibits. govern- required also Order Pretrial data- electronic in an 240,000 pages than relevant materials over turn toment counsel at 31. Pet. Wecht base.3 government anticipated impeachment com- did submission that believed ag- addition, it provided In witnesses. re- Order, which Pretrial with the ply deadlines set of and schedule gressive exhibits provide government quired discovery. motions pretrial App. at trial. use “intend[ed]” it a half two 6, 2006—about April On asserted addition, Wecht’s indictment— filing after months all the review possible not be would request a granted District Pre- by the allotted time in the earlier submitted government, April on held conference aAt Order. trial seal. motion file a leave day, determined substance state did request Pretrial with complied had government motion. underlying matter subject hope his expressed Order a mo- filed Wecht morning, following productively together work motion evidence. suppress tion list. joint exhibit had Orsini Agent part, alleged, after weeks four 3, 2006—about May On war- search his parts material falsified ordered had the Court had generally he affidavits rant records— the Orsini provide within truthfulness reputation poor protec- for a filed thereafter, government, Shortly FBI.2 *6 of disclosure prohibiting order tive per- Court’s the District obtained having on response filed Wecht records. the a motion day, filed previous the mission protec- proposed to objecting May 10 on ruling parte ex seeking an seal under newspapers 12, two May On order. tive de- provide must government whether and Post-Gazette Pittsburgh (the rec- personnel certain with counsel fense Tribune-Review) tele- two and Pittsburgh confer- a status At Orsini. Agent of ords WTAE) moved (WPXI and stations vision for McDevitt, counsel lead ence, Jerry n Meanwhile, in intervene.4 to successfully to supposed was how he Wecht, asked counsel early May, and April seal, late and filed motion to respond press comments a number made not.” “[y]ou are replied, Court District were case, of which some regarding District day, the same that Later 262. JA that suggesting stories to response requiring order a sealed issued Court ad- with Wecht charge government Orsini copies provide to government one that charges and fraud tax ditional to first allowing to Wecht records a wit- intimidated had associates Wecht’s “after consul- order protective for move District asked government The ness. JA defendant.” counsel with tation addi- provided Apparently, "Counsel suppress stated to 2.The bringing days following in the exhibits tional proffer, way of represents, Wecht Dr. 300,000. pages the total number wit- repeatedly interviewed they have rep- Orsini's knowledge of personal ness com- the media allowed Court 4. The personally who tactics utation May confer- in the participate panies to Department during a lie by him asked motions granted their ence, formally his misconduct.” into investigation Justice May 30. on intervene n.7. JA Court to address the propriety of these address the issue of certain boxes that comments to the press light of the Pre- were seized by the FBI at private Wecht’s trial Order’s limitations. office. Although Agent Orsini testified at the suppression
At a hearing, conference on May 12, McDevitt did the Court use the personnel reminded parties records the limits placed cross-examine him. their public McDevitt comments stated at about oral argument the case suggested he believed an either order party could the District move for contempt had prohibited if either him from believed op- doing so. posing Also on June violated the Pretrial Court ruled Order. that Local Court, however, Rule permitted 83.1 did not violate briefing on the First Amend- whether Local ment. Rule 83.1 imposed and the unconsti- media outlets appeal tutional prior this ruling. restraints on speech. parties also discussed government’s ex- On June the District Court denied hibits; defense counsel reiterated that he the balance of Wecht’s motion to suppress could not review the materials and make as well as his motion to unseal the Orsini objections by the Pretrial Order’s deadline. personnel documents. Court, howev- The Judge then scheduled days four er, granted the media outlets’ motion to hearings in early June go through the unseal, finding “[ejven though the ma- exhibits with parties. Finally, terial is quite likely irrelevant and not Judge also set a schedule the parties to trial, admissible at has not brief whether Orsini’s records should be established a compelling interest or good unsealed, and he instructed cause to justify the continual sealing” of it. confer and joint file a proposed protocol JA 44. The District stayed
for any future sealing of documents. A order pending the government’s appeal. days later, few while awaiting briefing on On June in response the sealing of the Orsini records, mo- the Court tion to reconsider its
issued a protective admitting all of order prohibiting de- the government’s exhibits, fendant from reproducing the records or Court ruled on specific objections disclosing their contents *7 open court. n Wecht had submitted a week earlier. The Despite the May 12 conference, prob- Court also sharply criticized the defense’s lems with government’s the exhibits con- failure to comply with pretrial require- tinued. Wecht did not submit specific ob- ments and announced that following the jections to the exhibits the Pretrial trial he would schedule a hearing to deter- Order’s May 15 deadline. May 17, On the mine whether counsel’s actions constituted District Court issued an order admitting contempt. all of government’s the exhibits subject only to relevancy objections Finally, June might filed mo- result from tion rulings on requesting the motion to sup- the Judge recuse him- press any or self motion to dismiss. the case. On The May Judge denied the 26, Wecht motion, moved for and Wecht reconsideration now of seeks a writ of order, which he mandamus now ordering characterizes the as a Judge’s disqualifi- “suspension of cation. the rules of evidence.” Wecht Pet. at 28. short, In there are now three applica- On May 31, the District Court denied tions before us. First, Wecht challenges most elements of Wecht’s suppression mo- the constitutionality of Local Rule 83.1 and
tion but scheduled a June 8 hearing to its limitations on attorney speech about (including record criminal prior 1. The Second, the cases. ongoing charges of indictments, other or arrests, grant- decision Court’s District the appeals of reputation or character crime), the or the unseal to outlets’ media the ing or lawyer that the accused, except the petitions Third, Wecht records. Orsini statement a factual may make firm law District the disqualifying an order residence, name, age, accused’s of the Judge. status, if the and family occupation, 28 U.S.C. jurisdiction We apprehended, not been has accused regarding appeal Wecht’s review to § prosecution the associated lawyer 83.1 Rule Local constitutionality of the necessary any information may release unsealing appeal government’s to warn or apprehension to aid his/her petition Wecht’s regard order. may any dangers he/she of ju- we have Judge, of disqualification present; un- mandamus of writs issue risdiction any of or contents existence The 2. reasons 1651(a). For § 28 U.S.C. der giv- admission, statement or confession, District vacate will follow, we or refusal accused, or by the en 83.1, Rule Local as to decision Court’s state- make accused failure argued; than reasons for different though ment; order; unsealing Court’s District affirm any examina- disqualify performance 3. petition deny Wecht’s or refusal accused’s or the or tests tions judge. trial or examination to an submit failure test; DISCUSSION II. credibility testimony or identity, 4. The 83.1 Rule Local
A.
witnesses, except
prospective
shortly after
mentioned,
previously
As
announce
may
firm
lawor
lawyer
indictment,
announce-
if the
victim
identity of
aof
terms
agreed
law;
prohibited
otherwise
is not
ment
provi-
incorporated
Order
Pretrial
guilty
plea
aof
possibility
Pennsylvania
Western
sions
offense;
a lesser
or
charged
offense
states:
Rule
Rule 83.1.
Local
guilt
accused’s
to the
opinion
Any
firm
law
lawyer or
duty of the
is the
It
merits
or as
or innocence
release
authorize
or
release
not to
case.
in the
evidence
or
case
reason-
opinion
information
83.1(C).
W.D.PA.LR
dissemi-
to be
expect
person
able
*8
any)
by
entry
(for
after
dissemination
two months
by
nated
About
communication,
con-
notified
government
Order,
public
means
Pretrial
crimi-
imminent
statements
or
about
pending
with
nection
For
press.
or
made
attorneys
with
he/she
litigation
nal
aof
su-
a reason-
associated,
possibility
is
if there
regarding
is
example,
firm
Jerry
indictment,
dissemination
counsel
lead
such
likelihood
able
perseding
“[i]f
other-
station
trial
a fair
television
a
interfere
told
will
McDevitt
if
know
farm, you
due administration
a
lived
prejudice
ever
wise
you
you
manure
cowof
bunch
a
take
justice.
you
manure, all
cowof
existing pile
anonit
put
Rule
addition, the
83.1(A). In
W.D.PA.LR
smell.”
bigger
make
is
does
making
attorneys
prohibits
Rush, another
Mark
And
Br.
subjects:
number
about
statements
Weeht’s attorneys, commented to a news- note that
it is well-established that
paper that “when [Agent Orsini’s] truthful-
First
protects
Amendment
potential recipi-
put
ness
issue,
is
those search warrants
speech
ents of
as well
speakers.
See,
will fall.” JA 277.
re-
e.g., Va. State Bd.
Pharmacy v. Va.
quested that the Court “address this mat- Citizens
Council,
Consumer
Inc., 425 U.S.
ter” at the upcoming status conference “by 748, 756,
96 S.Ct.
At the conference, is afforded the Court the communication, reminded to its the parties of source their obligations to its recipients (foot- both.”) under the Pretrial omitted). Order note and suggested that either party could move for contempt if either believed opposing counsel was violating Third-Party Standing order. McDevitt argued that the Rule was We previously addressed the stand
unconstitutional, and parties, including ing of third parties to challenge gag orders the media outlets, subsequently submitted in FOCUS v. Allegheny County Court of briefs on the issue. The District Court Pleas, Common Cir.1996).5 determined that the Rule struck “a wise There, we noted that “putative recipients and permissible balance between the of speech usually have standing chal rights of all to a trial, fair by an lenge orders silencing speakers,” would-be untainted jury, and rights of attorneys “plaintiffs still must show that the to speak to the media.” JA 37. On ap- gag orders have caused them injury in fact peal, Wecht and the media contend that and that their injury likely to be re the Rule violates the First Amendment dressed a favorable decision.” Id. at imposing overly broad restrictions on 838. Accordingly, we held that “third par speech. ties have standing to challenge a gag order In addition to defending the constitu- only when there is reason to believe that tionality of Rule, ar- the individual subject to the gag order is gues that Wecht and his counsel have willing to speak and is being restrained waived First Amendment claims be- from doing so.” Id. at 838-39. cause they agreed to proposed Pretrial Order. The government contends that The government contends this waiver precludes also the media com- Weeht’s attorneys cannot be “willing” panies from asserting third-party standing. speakers because they agreed to include The media outlets, by contrast, assert that the language of Local Rule 83.1 in the they have third-party standing bring Pretrial Order. This argument however, First Amendment claims on behalf of the misconstrues the purpose of the “willing public, irrespective of Weeht’s possible speaker” rule as well as the requirements waiver. They claim that the public has a for standing. We have previously deter strong interest in hearing counsel’s views mined that media outlets have “standing to *9 about cases, criminal particularly high-pro- challenge protective orders and confiden prosecutions file such as one, this and they tiality orders” as long as they can demon- 5. We exercise plenary review over standing be a "gag order” as that typically term is Calio, issues. Bienerv. (3d used, 210 the same third-party standing principles Cir.2004). Although Local may Rule 83.1 not apply.
203
That Wecht’s
or modified.
is lifted
order
to their
obstacle
is an
order
the
that
strate
Order
a Pretrial
to
attorneys consented
Bor-
Pansy v.
access.
to obtain
attempt
no
is of
con-
Rule 83.1
(3d
Local
incorporating
777
F.3d
Stroudsburg, 23
ough of
can
outlets
media
the
long as
interve-
as
that
sequence
we held
Cir.1994).
Pansy,
In
the
speak about
challenge
to
to
want
counsel
standing
that
show
had
newspapers
nor
their
limits
Rule
a settlement
that the
over
order
and believe
confidentiality
case
a
have
newspapers
outlets
the
media
The
Because
ability to do so.
agreement.
settlement
stand-
to the
and have
access
gained
requirement
have
might
satisfied
right
law
constitutionality
common
the
through
challenge the
agreement
to
ing
to
Right
Pennsylvania
the
access
83.1.6
Rule
Local
liti-
the
that
matter
not
Act, it did
Know
asser-
government’s
Contrary to the
not
had
matter
underlying
the
in
gants
by
decided
cases
that
tions,
believe
we
when
confidentiality order
objected
hold-
our
support
appeals
courts of
other
entered.
it was
Co.,&
Jones
Dow
See, e.g.,
re
ing.
settlement
like the
Physical
Cir.1988) (holding
603, 605-08
F.2d
course,
the
not
are, of
Pansy
in
agreement
can
order
gag
a
consenting to
parties
that
be
may not
may or
that
speech
as
same
The
speakers).
willing
be
nevertheless
through
obtaining redress
Unlike
uttered.
Liggett
v.
Citizen
Public
cites
government
way
only
documents, the
existing
to
access
in
(1st Cir.1988),
Inc.,
F.2d
Group,
can
gag order
a
challenging
party
a third
organiza-
health
public
group
a
it
information
the
receive
will
it
that
show
sought
by Public Citizen
represented
tions
ais
there
demonstrating that
by
is
seeks
produced
discovery materials
to
access
the “will-
purpose
willing speaker.
fo-
company.
therefore,
is
tobacco
requirement,
speaker”
ing
that
observation
Court’s
the
those
cuses
to
interests
party’s
third
tie
to
“op-
had
underlying case
an
in
there
plaintiffs
that
to ensure
speaker,
stage.”
every
by a
order
protective
redressed
posed
would
that
fact
injury
ignores,
undisputed
Here, it is
n. 12.
at 787
Id.
decision.
favorable
made
was
speak
willing
this statement
however,
are
that
attorneys
ob-
83.1
“[b]ecause
Rule
Local
the conclusion
support
the case
about
or-
extent
To the
protective
so.
to do
ability
modification
taining a
their
limits
matter,
where
guarantee
future
arises
will,
practical
an occasion
as a
der
public
in the
make
desires
to documents
access
Citizen
Public
case,
has
we believe
Citizen
about
Public
possession,
statements
plaintiffs’
interest
Id.
legitimate
modification.”
seek
media
standing
being inhibited
to reach
reasoning
comments
those
similar
Employing
limitations.
in Oklahoma
overly restrictive
result,
opposite
Publishing
Oklahoma
Ass’n
Hospital
con
hold
we
Accordingly,
Cir.1984), denied
(10th
Co.,
F.2d
limiting
order
an
sent
it
standing because
company
publishing
standing
third-party
is irrelevant
speech
obtaining
succeed
unlikely “would
it
can
party
the third
as
long
analysis
the docu-
seeks—access
redress
subject to
individual
demonstrate
protec-
to lift
Court]
[the
ments —were
freely if
more
speak
the media.
arguments as
same
of whether
question
reach
need not
We
he raises
standing since
has
also
*10
204
tive orders.” Id. at 1425.7 We read these
likelihood standard satisfies
the First
cases as
e
our
supporting
conclusion that the Amendment’s requirements.
Se
In re
standing inquiry should
focus
whether Morrissey,
(4th
third parties would obtain the
In addition,
information
the government suggests a
n
they seek if successful on the merits of
limiting construction, under which com
their claims.
ments about
subjects
in Section C are
only considered presumptively prejudicial.
2.
the Local Rule
Modification of
We find it unnecessary to address
Having determined that the media
the parties’
arguments.
constitutional
In
outlets have standing, we next address the
stead, we choose to invoke our supervisory
substance of their challenge.
In Gentile
authority over the application of a local
v. State Bar
Nevada, 501
1030,
U.S.
rule of practice and procedure. As the
111
2720,
S.Ct.
115 L.Ed.2d
(1991),
888
Supreme Court
noted,
has
courts of ap
Supreme
Court determined that a lo peals are authorized to
‘proce
“mandate
cal rule prohibiting attorney speech that
dures deemed desirable from the viewpoint
had
“substantial
likelihood of material
judicial
sound
practice although in no
prejudice” on a criminal trial did not vio wise commanded by statute or by the Con
”
late the First Amendment.
1063,
Id. at
stitution.’
Thomas Arn,
v.
140,
U.S.
205 effect; isit materially prejudicial a have arrangements); fee attorney-client over view, applying of Co., to points neutral Supply & Lumber Triangle v. Dunbar ain participating Cir.1987) attorneys (invoking to all (3d equally 126, 129 F.2d merely postpones cer- mandating case; and it authority and pending supervisory requirements notice after until and attorneys’ comments pleading tain on based dismissal seek substan- by the supported when While trial. default). apparent preju- counsel’s preventing in interest tial state proceeding adjudicative to an dice super our exercise we now Accordingly, its duty protect to a have who those district require that to authority visory its face on limited is the Rule prohibit to integrity, 83.1 Rule Local apply courts having a sub- likely to only substantially speech preventing is that speech only proc materially prejudic- criminal ongoing of likelihood prejudice stantial materially au supervisory “our Although eedings.9 proceeding. ing So lightly,” invoked be not thority should we Although 2720. 111 S.Ct. Id. Inc., F.2d Singer, & Butcher v. well the con- address had occasion have appro it Cir.1991), believe we (3d 289, 295 rule, we restrictive a more stitutionality of of rea a number for here do so priate likelihood the substantial stated have both importantly, most Perhaps sons. of integrity “fairly balances standard previ have Court Court Supreme constitu- attorneys’ with system justice likelihood” the “substantial ously approved Scarfo, States ex rights.” United Supreme tional As standard. Cir.2001). attorney (3d Gentile, limitations in plained evils: principal at two “are aimed speech likelihood addition, substantial influence likely to are (1) comments Model ABA consistent is standard (2) trial, and of the outcome actual Conduct Professional of Rules prejudice likely to are comments See Justice. Criminal ABA Standards panel can if an untainted venire, even jury 3.6 R. Conduct Profl of Rules Model U.S. found.” ultimately 8-1.1 Justice Crim. (2002); Standards spe Supreme The 2720. 111 S.Ct. reason- a adopted ed.1992). ABA likeli “substantial noted cifically 1968, but in standard likelihood able standard hood” over recommendations amended ob- those achieve narrowly tailored is developments response years attorneys’ of regulation jectives. Model ABA’s of wake In the law.10 only applies limited—it is speech every decision, the Gentile to Rules likely substantially speech ABA's adopts the 83.2 il Procedure of all rules the local applies holding This Conduct. Professional of Rules Model Presently, Circuit. our courts district a to have appears of Delaware District 53,1 in the Procedure Criminal Rule Local attorney communications governing rule local Pennsylvania contains District Eastern Civil cases, Rule though Local criminal The Mid- standard. likelihood” “reasonable adopt the ABA’s 83.6(d)(2) does Procedure Rule Local Pennsylvania, in District dle civil Conduct Professional Rules Model Jersey, in Local of New 83.2, District proceedings. 101.1, already Procedure Criminal Rule Court, Rule Local According material District likelihood" "substantial was first since the same standard, has remained 83.1 as does prejudice objections without adopted in Islands, Rule Criminal Local where Virgin public. attorneys of Civ- Rule Local incorporates 1.2 Procedure *12 206
state,11 as well aas of majority federal B. Unsealing the Orsini Records courts,12 district now apply rules that are judicial Our process is generally open an more protective speech of than the reason- one permits the public to attend trials able likelihood standard. Moreover, as a judicial view records. openness This result of the changes impose, we district “promotes public confidence judicial in the courts our Circuit will now apply the system,” possibilities “diminishes injus- same trial publicity standard, one that is tice, incompetence, perjury, fraud,” also consistent with the rules of the Com- and “provide[s] the public with a more monwealth of Pennsylvania and the States complete understanding judicial of the sys- of New Jersey and Delaware.13 Among tem.” Littlejohn v. BIC Corp., 851 F.2d benefits, other lawyers practicing in multi- 673, (3d Cir.1988). 678 Under certain lim- ple jurisdictions will be subject now to the ited circumstances, however, may courts same standards.14 restrict or altogether close judicial pro- public. cesses Finally, we note that neither party defends the categorical restrictions of Sec case, this the District Court allowed tion C. Consistent with the ABA Model the government to submit a motion under Rule and the rules most jurisdictions, seal regarding potential obligations un- we will read Section C to provide attorneys der Brady v. Maryland, 83, 373 U.S. 83 with examples subjects that are likely to 1194, S.Ct. (1963), L.Ed.2d 215 be materially prejudicial if spoken about. Giglio v. States, United 405 U.S. 11.Forty-five currently states apply a "sub- 12. Our research discloses that ninety- stantially likely to materially prejudice” stan- courts, four federal that, district there are fifty dard, including each eleven states either through their own local by rules or identified the Gentile Court having as adopting rules, state or ABA apply standards reasonable likelihood standard at the are protective time. more speech. these, Of Of not, five states that do apply forty-four apply two simi- substantial likelihood stan- lar dards, standards: prohibits Maine speech prohibit while six comments that "poses a danger substantial pose interference serious and imminent/immedi- with the justice,” administration ate threat Me. or present Bar. clear and danger to the 3.7(j); R. Virginia prohibits justice. administration of communications Thirty-five district that "will have a apply courts substantial likelihood of in- reasonable likelihood standards terfering with the or rules fairness of that are protective the trial less speech. jury,” Sup.Ct. Va. 6:2-3.6(a). R. Seven districts only have some categorical speech, restrictions on and two ap- districts The three other apply states standards pear not to have a rule addressing pub- trial appear to be even protective more attorney licity. speech. prohibits Illinois speech that "would pose a serious and imminent threat to the Pennsylvania Rule of Professional Conduct adjudicative fairness of an proceeding.” Ill. largely 3.6 adopts the language of the ABA Sup.Ct. R. Profl Conduct 3.6. New Mexico Rule, Model professional do rules of con- prohibits "false; statements that are or [that] duct Jersey New and Delaware. N.J. Ct. R. create[ a present ] clear and danger of preju- 3.6; R., Profl Conduct Del. Ct. Lawyers' R. dicing the proceeding.” N.M. R. Prof. Con- Profl Conduct 3.6. duct Oklahoma, 16-306. And in lawyers are prohibited milking from public statements 14. We also note that stated at that "will have an imminent and materially argument oral that it "would objec- have no prejudicial effect on the fact-finding process tion whatsoever” to a substantial likelihood adjudicatory proceeding relating standard, only that it did not believe we matter and involving lay fact-finders should declare a rule unconstitutional without possibility of incarceration.” Oída. R. Profl good reason. Arg. Oral Sept. Tr. Conduct 3.6. ("Tr.”). sealed remain should (1972).15 Specif- 763, 31 L.Ed.2d S.Ct. proceed- public “integrity sought permission ically, access per- required ing” certain withhold addition 44. In *13 Dis- JA The records. Orsini. Orsini Agent to the of records sonnel Orsini requiring of the unsealing order ordering a sealed the to issued Court trict the protec- the copies modified provide records,16 to the Court government the it allowing to reference eliminating its to records order Orsini tive “after order stayed However, protective a Court the to move first records. the for defendant.” ap- to government the consultation permit to its order parties the between Discussions that argues 67. now JA government The peal.17 sub- government the and fruitless proved public the because erred Court order protective a moved sequently or com- Amendment First not have does Orsini of the disclosure public prohibiting materials. the to access right law mon the objections, Despite records. to unseal opinion Court’s District The while protective the granted Court state explicitly does records the to allow briefing schedule setting also The decision. its based it grounds what whether the issue address to parties the had government the that stated Court be unsealed. should the documents inter- compelling “a failed demonstrate inter- outlets time, media the this At continual the justify cause good or est briefs submitted and case the in vened that hold expressly did not sealing,” but com- media sealing. The the challenging com- Amendment First had a public the sig- had a public the that asserted panies We Id documents. to the right law mon about information interest nificant a com- (1) has public that both believe govern- in the figure Orsini, key Agent records, and Orsini to the right law mon prosecution and investigation ment’s records to unseal (2) decision that ar- outlets addition, media Wecht. trial pursuant appropriate interest had that gued discretionary powers.18 general court’s including place, took process legal to withhold application government’s To Right Law Common Public’s The 1. rulings the related Documents Judicial Access Court. District that, noted previously have We concluded Court District exists, in there is well-settled why “[i]t to demonstrate had failed government seal continue separately we should turn must that the Brady held 15. unsealing affirm if we defendants, motion its exculpatory evidence over records. falls evidence impeachment Giglio held Brady. Bra- See expressed in rule within the Dis- appealed outlets 1194; Giglio, 405 17. media 87, S.Ct. dy, 373 U.S. unsealing stay its such, Court's decision we trict when As 763. S.Ct. U.S. its abused believe do not We we order. opinion, this Brady materials refer we established the standard discretion evidence. impeachment Giglio include Westinghouse Philippines Republic Cir.1991). (3d 653, 656 Corp., 949 F.2d Elec. on the our discussion Although we focus exhib- as were attached records Orsini concurrence, colleague criticizes our motion, In his our in camera government’s to the rec- sealing of the initial Court's District well. papers to the holding applies because issue not address doWe ords. the motion explained seal- challenge the initial none personnel in the information summarized appeal. ing on argued has records, both criminal cases, and civil a common public has a common law right law public right access judicial pro- Orsini records. ceedings and records.” Goldstein v. In general, the common law right (In Forbes re Corp.), Cendant 260 F.3d attaches to any document that is consid (3d Cir.2001); see also United “judicial ered a record,” which “depends Criden, States v. on whether [the] document has been filed Cir.1981) (“[T]he courts of this country court, with the or otherwise somehow in recognize a general right to inspect and corporated or integrated into a district copy public records documents, includ- court’s adjudicatory proceedings.” Gold *14 ing judicial documents.”).19 records and stein, 192; 260 F.3d see also United We review relating decisions to the com- Martin, States v. 964, (3d 746 F.2d 968 mon right law of access generally (“The Cir.1984) common right law of ac abuse discretion, of though our review of cess is not limited evidence, but rather legal principles applied plenary. is See encompasses judicial all records and docu
In re Capital Cities/ABC, Inc., 913 F.2d ments. It includes transcripts, evidence, 89, (3d 92 Cir.1990); United States v. pleadings, and other materials submitted Smith, (3d 111, 787 Cir.1986). F.2d 113 ....”) by litigants (citation and internal
quotation
omitted).
marks
public’s
?
common law right to
argues, however,
judicial
access
records “is not absolute.”
that the Orsini records are discovery mate
Littlejohn, 851 F.2d
Instead,
at 678.
when rials that cannot
subject
to the common
right exists,
is a
there
“strong pre
law right of access.
sumption” that
public
may view the
notes that discovery traditionally has been
See,
records.
e.g., Bank
Am. Nat’l
of
conducted by
parties
private
and
Trust
Sav.&
Ass’n v. Hotel Rittenhouse
has not been publically
See,
available.
e.g.,
Assocs.,
339,
(3d
800 F.2d
Cir.1986).
344
Seattle Times
v. Rhinehart,
Co.
467 U.S.
When parties assert that the need for con 20, 33, 104
2199,
S.Ct.
(1984)
209
the defen-
discovery by
subject to
possibly
than
indictment
supplements
govern-
And the
Brady”).
under
dants
United
discovery”);
civil
equivalent
are
Brady materials
correct
is
ment
Anderson,
F.2d
v.
States
is shared
information
discovery
like
civil
Cir.1986) (“Discovery, whether
(11th
through
process
for trial
preparation
process
private
essentially
criminal, is
in-
not
and does
private
generally
is
courts as-
litigants
because
court.
discovery is volve
purpose
the sole
sume
preparation.”).
time, obligations
trial
to assist
same
At
proce-
by rules
governed
Brady are
are
discovery materials
When
See United
by the Constitution.
dure
na
court,
private
trial
with
filed
(3d
577, 579
F.2d
Kaplan,
v.
States
conflict
into
discovery comes
ture
Maryland
Brady
Cir.1977) (“The
v.
rule
records.
judicial
access
right to
public’s
require-
constitutional
is founded
in Leuca
such
situation
considered
We
state
both
trial, binding on
a fair
ment
Technolo
Extrusion
dia,
Applied
Inc.
a rule of
It
courts.
federal
Cir.1993),
Inc.,
F.2d
gies,
materials,
addition, Brady
*15
In
discovery.”).
discovery ma
attached
had
party
where
turned over
discovery, are
unlike civil
court.
the
with
filed
a motion
to
terials
during its
the
defense
government
the
disadvan
and
benefits
discussing the
After
behalf
criminals
alleged
of
prosecution
right
law
common
the
extending
of
tages
guided
arewe
Although
public.
the
that
materials,
concluded
we
such
Leucadia,
that
we believe
in
reasoning
our
law]
[common
presumptive
is a
“there
pre-
materials
Brady
nature
unique
the
filed
material
to all
access
public
right to
dis-
the
seamlessly applying
us from
vents
pretrial
nondiscovery
with
connection
in
Leu-
that
dichotomy
covery-nondiscovery
are case
motions
these
motions, whether
context.
the
civil
established
cadia
as to
right
not,
no such
dispositive
we
that
argued
has
government
supporting
their
and
discovery motions
process
camera
cripple the
words, would
other
Id. at 165.
documents.”
that
hold
if we
materials
Brady
potential
general
are
court
with the
filed
documents
attaches
access
right
law
common
the
right of
law
common
the
subject
ly
that
acknowledge
We
records.
Orsini
the
discovery mo
ato
access,
attached
unless
extending the common
implications
the
tion.
for in
submitted
documents
right
law
Orsini
argues
government
alone
unclear, and this
“are
review
camera
estab
we
exception
fall within
records
Leucadia, 998
restraint.”
should
filed
they were
because
in Leucadia
lished
Nevertheless, we believe
at
F.2d
Ac
review.
for in camera
motion
awith
circumstances
particular
under the
materi
Brady
government,
cording to
law
a common
have
case,
public does
motion for
discovery and
constitute
als
records.
the Orsini
access
right to
discovery
therefore
review
camera
filed
were
First,
the Orsini
we
*16
would have
Wecht to
guishes Brady materials from traditional
use
records,
the
but even a ruling prohibit-
civil discovery between private parties.
ing their use would have
yet
constituted
Fourth,
there can be little question that
another
important
judicial decision that
particular
the
documents at issue here are
public
the
would have had an
interest
of significant interest
public.
the
The
evaluating. For
reasons,
these
we con-
records concern the conduct of an FBI
clude that
public
the
has a common law
official who played a prominent role in a
right to access the Orsini records.
highly publicized investigation of a well-
known defendant accused of abusing his
The
has suggested that al-
public office.
the probative
While
value of
lowing public access
Brady
documents
the documents is open
debate,
they are
filed with the trial court for in camera
of at least some relevance to Wecht’s re-
review might result in
production
less
of
peated assertions that Agent Orsini lacks
such
material
the government going
veracity
that
and
his affidavits in support
forward. Because we trust
gov-
that the
of the search warrants were “infected with
ernment will continue to fulfill its constitu-
his deliberate and reckless falsehoods.”
tional obligations diligently and with an
App. 67.
caution,
abundance of
we find little merit
20. The suppression motion was filed after the
McDevitt did
attempt
not even
to use the
government’s application to file an "underly-
records
the suppression hearing. As dis-
ing motion" under seal but
filing
before the
of
greater
cussed at
length below in Section 3.C
the motion for in camera review.
opinion,
of this
we believe the source of this
controversy stems from confusion about the
21. Whether McDevitt could have in fact used
scope of
May
application
to use
suppression
documents at the
hearing was
the records and the Court's
June
order
hotly disputed by
argu-
oral
denying
application.
that
ment.
The
has asserted that
modified.
order
protective
and
sealed
addition,
deci-
our
argument.
this
there
determined
District Court
The
facts
particular
based
today is
sion
rec-
keeping
“good
not
cause”
suggest
certainly do not
We
case.
of
their dissem-
preventing
sealed
ords
when
attaches
right
law
common
District
believe
We
ination.
govern-
determine
courts
district
that it
authority,
its
within
well
acted
As one
materials.
disclose
need
ment
its discretion.
abuse
certainly did not
noted,
has
appeals
courts
sister
our
undis-
...
“for
access
orders
public
protective
may
issue
“[g]ranting
Courts
it with
furnish
Federal
16 of
Rule
cause” under
good
coverable
merits
also
on the
See
bear
Procedure.
do
of Criminal
materials
Rules
right
civil
has a
in the
(noting
public
at 786
F.3d
Pansy,
to which
trial
defen-
that a
effect,
would,
give
well-established
“it is
context that
access
has
protec-
the court
an order
discovery to
obtain
wishing to
party
dant
States
must demon-
discovery
United
material
entitled.”
is not
over
ruled he
tion
Cir.1995).
for the
cause’ exists
‘good
Wolfson,
strate
Fed.R.Civ.P.
(quoting
protection”)
To
Courts
District
aon
Discretion
established
26(c)).
cause
“Good
Sealing Or-
clearly
Protective
will
Amend
work
showing
disclosure
party
injury
ders
and serious
defined
injury must
seeking closure.
it would
also believe
We
allegations
Broad
specificity.
shown
to un
for the
proper
been
exam-
by specific
harm, unsubstantiated
general
to its
pursuant
records
seal
sup-
reasoning, do not
or articulated
ples
Generally, docu
discretionary powers.
(citation
Id.
showing.”
cause
good
port
are available
trial court
filed with
ments
omitted).
marks
quotation
internal
and the
party
opposing
for both
also
must
determination
cause
good
government’s
Because
to view.
infor-
in the
interest
public’s
balance
over cer
turn
obligation
concerned
disclosure
injuries that
against
mation
defense,
it asked
*17
the
to
tain materials
at 787-91.
Id.
cause.
would
seal.
papers
file its
to
permission
would
although the
This meant
Group,
Liggett
Cipollone
and
docket,
defense
the
the
noted
Cir.1986),
ex
(3d
we
1108
Inc.,
F.2d
785
the filed
view
able to
not be
public
an umbrella
there
when
plained
contents.
their
or learn
papers
justifying
burden
“the
order
protective
docu
every
and
confidentiality of each
the
gov-
the
ultimately ordered
The Court
by protective
a
covered
to be
sought
ment
materi-
copies
turn over
to
ernment
seeking
party
on the
remains
to
order
first
allowed
to
defense
als
later
1122. We
at
Id.
order.”
otherwise,
protective
order;
protective
a
move
reasoning
“our
in Leueadia
stated
infor-
have disseminated
could
non-party
a
when
force
equal
applies
briefing, the
After
public.
mation
or settled
pending
in a
intervene
moves
prohibiting
order
protective
a
issued
modify
purpose
limited
lawsuit
dissemi-
reproducing
the defense
docu
inspecting
order
protective
a
ing
disclosing their
records,
fromor
nating
at 166.
F.2d
seal.”
filed under
ments
Upon intervention
open court.
contents
all
had viewed
Here,
the defense
once
reconsid-
outlets, the Court
media
by the
outlets
media
material
stake,
relevant
interests
various
ered
Dis-
for the
intervened,
proper
it was
had
be un-
should
records
determined
trict
consider whether there
‘good
cause’
protect
exists to
this informa
good
for continuing
cause
tion,
the sealing and
then it must determine whether the
protective orders.
Pansy,
See
Los Angeles
F.3d at
Times has
right
a
to Exhibit 8
(“The
appropriate approach in
under the
consid-
common law right
access,
ering motions to modify
separate and
confidentiality
independent
or-
basis for obtain
ing
ders is to use the
information.”);
same
this
balancing test that
SEC v. TheS
treet.com,
is used
in determining
Cir.2001)
whether
grant
such
(explaining
orders
that although
the first instance ...
there was no
public right
access,
At that
stage, the sealing order
prevented
district court
still “could
public
reasonably conclude,
direct
access
in the
documents while
ex
ercise of its
informed
protective
discretion,
prohibited
...
the intervention of a
enterprise
counsel from
media
disseminating informa-
the limited purpose of
tion
gaining
public.
access
the sealed
required
the striking
District courts should balance the rele-
of a new balance
privacy
between
rights
vant
irrespective
interests
of whether the
and the interest of
general
public”).
public
has First Amendment or common
Although
party
seeking
prevent
dis
right
law
to the materials.
In Pansy, we
closure bears the burden of demonstrating
rejected the argument of intervenor news-
good cause, the balancing does not include
papers
public
that the
had right
of access
the “strong presumption” in favor of ac
ato
agreement
settlement
the parties had
cess that
upon
occurs
a finding of a com
not filed and the district court had not mon
right.22
law
enforced.
213
of
recusal
seeks
Weeht
(noting that the
2199
36,
S.Ct.
104
U.S. at
provisions
under
Judge
two
Court
District
weigh
position
the best
in“is
judge
trial
statute, 28 U.S.C.
recusal
federal
of the
of
and interests
needs
competing
fairly the
455(a)
455(b)(1).
455(a)
Section
§
§
and
Accord-
discovery”).
affected
magis
judge, or
“[a]ny justice,
states
deci-
District Court’s
affirm
we
ingly,
dis
shall
States
United
judge
trate
justify the
cause did
good
sion
in which
proceeding
in any
himself
qualify
sealing
protective
and
continuance
reasonably
ques
might
impartiality
his
orders.
for
test
recusal
“The
tioned.”
person,
455(a)
a reasonable
is whether
§
Disqualification
Petition
C.
facts,
con
of all
knowledge
with
Judge
might
impartiality
judge’s
clude
a motion re-
filed
2006, Weeht
In June
In re Kens
questioned.”
reasonably be
himself
recuse
Judge
questing
(3d
Ltd.,
220
F.3d
353
Int’l
ington
the mo-
Judge denied
The
case.
from the
455(b)(1), in relevant
Cir.2003).
§
Section
of man-
a writ
seeks
now
tion, Weeht
has
Judge
when
recusal
requires
part,
disqualifica-
Judge’s
ordering the
damus
evidentia-
disputed
knowledge of
“personal
Judge’s
contends
Weeht
tion.
proceeding.” We
concerning the
facts
ry
case, comments
management
Judge’s applica
the District Court
review
or
bias
counsel,
rulings demonstrate
abuse of discre
standards
of these
tion
Specifical-
bias.
appearance
create
(3d
Antar,
In re
tion.
that:
argues
ly, Weeht
Cir.1995).
in ex
engaged
improperly
Judge
1. The
judi
a number
cites
Weeht
gov-
parte communications
during
made
and comments
rulings
cial
records.
the Orsini
about
ernment
that there
not assert
case,
he does
sus-
issued several
has
Judge
2. The
as
sources—defined
extrajudicial
are
Orsini.
Agent
concerning
pect orders
proceed
official
“source[s] outside
an order
Judge entered
The
3.
him
to recuse
Judge
ings” requiring
—
rules of evi-
“effectively repealed
Bertoli,
F.3d
States
United
self.
one fell
“admitted
dence”
Cir.1994).
Supreme
1384, 1412
prose-
240,000
pages
swoop over
States,
Liteky v. United
stated
2.
Pet. at
Weeht
cution evidence.”
1147, 127 L.Ed.2d
540, 114 S.Ct.
U.S.
antagonism
has exhibited
Judge
4. The
theory,
wrong in
(1994),
is
that “[i]t
through
towards
the mark
far off
too
may not be
though
at-
contempt
personal
threats
many
matter,
suggest,
practical
aas
tacks.
‘extrajudicial source’
have, that
opinions
mo-
denied defense
has
Judge
disqualify
establishing
only basis
or
analysis
sufficient
without
tions
Id. at
prejudice.”
ing bias
explanation.
not cite
party does
1147. When
S.Ct.
sources,
Judge’s opinions
ma-
extrajudicial
improperly reviewed
*19
“deep-seated”
into
must reveal
remarks
were
offered
terials
antagOv
or
hearing.
“favoritism
degree”
suppression
“high
at
evidence
im
judgment
fair
make
nism that would
bor-
inappropriately
has
Judge
7.
555-56, 114 S.Ct.
Id.
possible.”
techniques
management
case
rowed
com-
a number
law.
has raised
from civil
Weeht
remarks, prac-
Judge’s
about
plaints
the case.
“prejudged”
has
Judge
tices, and rulings. We
grouped
have
right to evidence material to his defense.”
Wecht’s allegations
Bocra,
into
categories
five
1. Ex Parte Practice government filed its application for permission to submit “underlying mo- Wecht first asserts that the Dis tion” seal, Wecht provided with trict Judge improperly engaged no information about the content of the parte ex communications with govern motion. When defense counsel asked ment about the Orsini records and other status conference the day next how he was wise inappropriately handled motions re to respond motion, the Court replied garding records. It is important at “[y]ou are not.” JA 262. Later day, the outset to clarify what these “communi the Court issued an parte ex ruling that cations” are. Wecht has not alleged appears on the docket only an order on Judge met attorneys government’s sealed motion without or otherwise discussed matters in the case indicating disposition. Certainly, the with them the presence outside of defense District Court could have provided Wecht Instead, counsel. complains Wecht with more information process about the filed an- parte ex without revealing the contents of the docu- and that the District Court issued an ex ments. But we fail to any see evidence of parte ruling. bias the Court’s provide failure to that, correct general, ex information. parte proceedings are disfavored. Howev- Two other facts undercut suggestion er, there are a number of circumstances of bias in the Judge’s treatment of the where parte ex applications to the court Orsini First, records. Judge rejected are appropriate, and Wecht appears to the government’s argument it need overlook previous our statements endors- not turn over the Orsini records to the ing the in camera inspection of materials defense. Wecht argues that because the that may need to be turned over to the records were relevant to April his sup- have, defense. We for example, stated pression motion, the Judge should have that “[t]he submission of discovery materi- ordered their immediate disclosure instead als to the court for an in camera inspec- of allowing the government to move for a tion and decision as to which materials are protective order. Perhaps the government discoverable is commonly used when the should have applied for protective or- Government’s need for preserving confi- der quickly more Judge or the should dentiality over the materials must be bal- required it,23 but defense counsel received anced with the defendant’s constitutional the documents in plenty of time to supple- 23. Wecht also faults the inviting allegedly preordaining that it would government to apply for protective granted. government's motion, sealed
215 Order, which includ- 1 Pretrial March the use the or motion suppression the ment pretrial for deadlines and hear- ed schedules suppression 8 the June records 3(c) or- discovery. Section not have and motions would counsel Defense ing.24 defen- provide in their to government the the information dered to use able been to use at Judge intend[ed] had the “it even exhibits 7 motion with April dant initial defense while April disclosure. by immediate trial” ordered exhib- designate” its “preliminarily towas at some discussed Second, Judge the to were 48. Counsel May 5. JA process sealing and parte ex length the “in an effort to May 11 or before meet on May 12 status at the the with joint admissibility of exhib- the upon agree defense listened Judge The conference. with an the its,” jointly provide and “cursory de- the complaint counsel’s objec- indicating chart binder and docket on the exhibit to seal of motions scriptions” 49. The JA May 15. to exhibits tions information. insufficient provided objections at and the then address government encouraged Judge 7 an June up with for scheduled and come confer conferences or before defense motions and the sealing government protocol Id. Both the upon 8. agreed and hearing, the drafting of the in Later in the going participated forward. arguments with no adopted Judge listened it was and Order Pretrial willingness his expressed media from defendant. objections 17, the May On process. improve however, 21 April arose, Problems establishing a new an issued prelimi- a provided government when par- all of that accounted protocol exhibits. than 1350 of more nary list reasons, dis- we these For concerns. ties’ 240,000 than more comprised exhibits Judge handled in how no bias cern data- in an electronic of documents pages Orsini regarding government’s in excess far apparently was This base. records.25 Accord- anticipated. had the defense what Objec- 300,000 of docu- pages Exhibits Management Wecht, 2. about ing course in the provided tions been had ments previ- had government discovery, about complaints percent” 5 “probably ously estimated stem of exhibits management Judge’s help ensure can of materials review camera pro- a however, Judge issue that the requests deny defen- may though it even required was fair trial order if the tective "); eye’ 'advocate's April 7 an Judge’s benefits “the dant the records. disclose with F.2d 1501 Dupuy, to consult v. ruling States orders United hopes of presumably Cir.1985) "prosecutor sat- (noting (9th defense counsel— apply formally then exculpatory materi- agreement duty to disclose her isfied —and order. protective *21 of the exhibits would eventually be offered “mess” and explained that Wecht would App. trial. objections reserve until he understood “the basis for the [government's proffer on all government acknowledged that of these documents.” App. 763. The what they provided on April “a was Judge expressed displeasure his with the preliminary exhibit list.” Gov.App. 165. failure of the parties agree joint Wecht believed this did comply with exhibits that, and stated if necessary, the Pretrial he which required Order that the go would through each of the exhibits in provide it exhibits “intend[ed] court. He then scheduled days four use trial.” At an April conference, hearings in early June for this Judge purpose stated that government’s “I stated do think production this is the time appropriate was that he [gjovernment expected to decide really to “sit which are together” down the exhibits and and draft aren’t.” necessary Gov.App. summaries and 194-95. stipulations of fact to significantly narrow
the number of exhibits. Gov.App. 175. May On the government submitted addition to the dispute exhibit list Court, over the gov- including each ernment’s compliance its more exhibits, Pretrial Or- than 1350 and noted der, (and be) there was continues to funda- defense had objected to all of mental disagreement about how them. The government it long also indicated that should have taken defense it counsel to re- consented to the admission of five of view government’s exhibits, exhibits. Defense but set forth specific ob- counsel stated that jections firm was printing thirty others. The defense did out each of the exhibits that it submit specific materials objec- be impossible to review them in Court, the time tions to the nor they did seek an Court, allotted. The as well govern- as the extension of time to do possible, so. It is ment, wondered why printing however, these docu- defense counsel believed the ments was necessary it when had been discussion at May 12 conference meant agreed that the exhibits May should be scanned 15 deadline no longer applied. provided in electronic Further, form. Immediately after counsel stated he because the personally objections reserved reviewed until he understood each of the database, exhibits in the he did basis for exhibit, each the Court stat- not credit defense counsel’s ed: “Okay, statements fine. We will it do here in ” that printing required. While we are court one one .... App. 763. But not in a position to resolve dispute, after May we 15 deadline passed, do note that more effective Judge explained communication that all along he had still between defense counsel expected and the Judge defense counsel specific to submit might yielded objections resolution acceptable exhibits May 15. The to all parties. Instead, it appears no Judge planned one to use the exhibit chart to offered sensible suggestions as to how objections examine and make rul- initial Pretrial Order could be ings, modified leaving without for the hearings June only affecting the trial date. those exhibits questions he had about. May 11,
On and defense Though it is possible that defense coun- met to discuss the exhibits but the meeting willfully sel violated the Order, Pretrial we did not last long and accomplished little. believe more likely that there was confu- At the May conference, defense counsel sion following May It conference. government’s described the exhibits appears the Judge and counsel did not
217
or-
his
subsequently modified
have
should
the exact
effectively about
communicate
his
believe
scope. We
clarify
to
der
regarding
place
to take
that was
process
unnecessary ar-
created
evidentiary order
defense
While
exhibits.
the government’s
advancing
instead of
and confusion
gument
of
sought clarification
have
should
counsel
move the
to
order
pretrial
goals of
or
May 12 conference
at
process
that
trial. Nev-
fairly toward
swiftly and
case
Judge should
writing,
subsequently
objec-
on
rulings
subsequent
ertheless, his
expecta-
his
clearly expressed
more
have
in fact
not
he did
clear that
make
tions
days
four
scheduling of
light
of
tions
of evidence.
the rules
suspend
hearings in June.
of
the Court
minimum, we believe
aAt
that district
note
to
important
is
It
from
explanation
sought an
have
should
manage
in the
discretion
courts
wide
May 15
missing the
for
See,
v.
Yakowicz
e.g.,
their cases.
ment
to
appeared
issuing what
before
(3d
deadline
Cir.
784
F.2d
683
Pennsylvania,
In that
May 17.
on
order
drastic
be a
powers with
1982)
“broad
(referring to the
it had
that because
order,
stated
the Court
other considerations
timing and
to
respect
from
objection[s]”
“specific
not received
generally
has
court]
district
[the
that
exhibits
government’s
defendant,
of the
all
before it
cases
of the
management
only
evidence, subject
into
“admitted
were
stages
the various
through
proceed
they
... which
objections
relevancy
possible
trial”);
Titus Mer
during
before
rulings on
future
solely from
may result
Am.,
F.2d
North
Benz
cedes
Motion
any
or
Suppress
the Motion
Cir.1982) (“[B]road
discretion
omitted).
(citation
App.
Dismiss.”
in the
district courts
be accorded
should
of this
for reconsideration
moved
calendars.”).
Wecht
Fur
their
management
of the
modification
and later
order
judge on
by the
ther,
formed
“opinions
Judge
June
On
Pretrial Order.
occur
or events
introduced
of facts
basis
these
grant
not
did
that
opinion
issued
proceed
the current
in the course
ring
eviden-
specific
ruled
motions,
that
but
not consti
proceedings, do
prior
ings, or of
one
by Wecht
submitted
objections
tiary
partiality
a bias or
a basis
tute
has characterized
Wecht
before.26
week
favorit
deep-seated
display
they
unless
“suspension
aas
17May
fair
make
antagonism
or
ism
evidence.”
rules
510 U.S.
Liteky,
impossible.”
judgment
are some
1147. While we
555, 114 S.Ct.
improper
it was
think
Frankly, we
District
by some
puzzled
what
pages of
thousands
to admit
exhibits, we
managing
actions
evidence,
Court’s
especial-
into
wholesale
materials
bias, much less
they display
not believe
do
acknowledged
had
the government
ly when
antagonism
favoritism
degree
If
preliminary.
was
exhibits
its list of
for recusal.27
required
intention,
he
Judge’s
manag-
judges
colleague that trial
dissenting
in the
of comments
Citing
a number
26.
into account
take
cases must
ing
criminal
his motion
claims
opinion, Wecht
June
are
safeguards
other
court's
ire.”
“only
drew
constitutional
reconsider
Wecht, of
these com-
examine
matters.
We
in civil
at 33.
issue
Pet.
Wecht
rulings
he
any
course,
appeal
in subsection
plaints
may
below
later
has
rights,
he
failed
his
believes violated
Court's
asserts
Wecht
also
civil
use of
Court's
explain
how
management
tech-
case
use of innovative
techniques demonstrates
management
his
violates
law
civil
niques borrowed
bias.
our
agree with
We
process.
right to due
3. Rulings and Orders
addressing only the first of these hearings;
the Judge logically believed it made no
alleged
has also
that a number of
portions
sense
unseal
of the records
rulings in this case demonstrate bias on
when that was the
question
exact
before
part
of the District
Judge.
We
*23
him on June 5.
counsel,
Defense
by
note at
con-
the
“judicial
outset
rulings
trast, interpreted this order as preventing
alone almost never constitute a valid basis
him from using the records at
suppres-
for a bias
the
or partiality motion....
[They]
sion hearing well.
as
Although
can
the
only
the rarest
Court’s
circumstances evi-
lack of specificity presumably
dence
degree
the
created
favoritism or antago-
confusion, defense
required
nism
counsel
... when
should have
extrajudicial
no
sought
source
clarification
either
involved. Almost
before
invariably,
sup-
the
they
pression hearing
are
or at
proper grounds for
sidebar during it.
appeal, not for
recusal.” Liteky,
S.Ct. 1147. We will not discuss each of the rulings Wecht cites other than note that May 31, On the District Court de they are grounds for recusal. nied much of Wecht’s suppression motion
However,
because the
scheduled a
ability of
hearing for
defense
June 8 to
counsel to use the
address
Orsini
the
records at
seizure of
boxes at Wecht’s
suppression
private office,
hearing has been the
including
source of
“Box 20.” Wecht
such
disagreement,
argued
fundamental
only
we do
be-
issue was whether
it
lieve merits some
label,
discussion.
this box’s
This
Firm,”
dis-
“Wecht Law
placed
pute was particularly
outside
evident
oral
argu-
scope of the warrant. The
ment where defense
Judge apparently
counsel stated that
reviewed the box’s con
the government
“utterly
was
after
disingenu-
tents
the hearing without defendant’s
ous” in suggesting that
knowledge.
Wecht
asserts
could have been used at
suppression
Judge’s
examination of the box’s contents
hearing. Tr. 125.
On
not only
May
defense
creates an appearance of bias
counsel requested permission
§ 455(a),
under
file a
but also
“per
constitutes
sealed motion indicating
sonal knowledge
which statements
of disputed evidentiary
they
the records
would like
concerning
in facts
use
the proceeding” under
future
455(b)(1).
proceedings
§
relevant
to “pending
motions, including
right
of access is-
The District Court apparently had ac-
sues
raised
the media as well as the
cess to the contents of the box when the
suppression hearing.”
JA 371-72. The
government provided the Court with the
District Court denied the motion on
2
June
electronic database of exhibits on May 15.
stating that
grant
“to
said motion would
may
Wecht
right
be
that the label on the
disclose at
very
argument certain in- box, and not its contents,
only
is the
rele-
formation in [the Orsini
relating
records]
vant issue when determining whether the
to the issue of whether
[the records]
agents acted within the scope of the war-
should be unsealed.” JA 93.
Perhaps
rant.
the Judge should
made
have
At the time of the
ruling,
Court’s
there
clear that he intended to review
actual
were two hearings pending:
June
contents of the box in order to provide
argument on whether the Orsini records
an
counsel
opportunity to com-
should be unsealed and the June
sup-
ment.
may
grounds
upon
pression hearing. The language of the which to appeal the Judge’s ruling on his
June
order suggests that the Court was
suppression motion, but there is no evi-
threat
not as a
certainly
contempt and
do we
Nor
was biased.
Judge
dence
party.
particular
at a
directed
ap-
create
actions
Judge’s
believe
of bias.
pearance
Nevertheless,
announce
did
Furthermore,
not believe
we do
there
opinion
his June
re-
the box’s contents
if de-
review
determine
Judge’s
trial
hearing after
because,
455(b)(1)
Pretrial
§
recusal
violations
quires
counsel’s
fense
Judge’s
notes,
In his recu-
contempt.28
as
constitute
Order
in nature.
“personal”
that de-
knowledge
Judge specified
opinion,
sal
ex-
presented
had been
violated the
had
The documents
fense
to all
(1)
available
were
confer
meaningfully
failing
hibits
*24
(2)
In
them.
exhibits;
reviewed
Judge
May
the
11 about
on
the time
government
about
knowledge
words,
Judge’s
a trial exhib-
the
on
other
with the
work
a
derive
(3)
did not
to exhibits
objections
list;
file
the documents
it
the
proceedings.
(4)
June
properly
15;
outside
prepare
May
source
(5)
good faith
conference;
make
Coun-
Toward
Antagonism
Defense
objections.29
sel
they
not believe
does
Defense counsel
Contempt
Threats
a.
they
assert
Order
of
the Pretrial
violated
caused
were
deadlines
any missed
that
Judge has
that
claim
Wecht’s
by the
provided
exhibits
the voluminous
criminal con
with
counsel
“threatenfed]
However,
over
dispute
government.
the rec
distorts
five occasions”
on
tempt
occurred,
if
those
violations
whether
particular,
at 47.
Pet.
Wecht
ord.
is
contempt,
level
to the
rise
violations
discussion
Judge’s
to the
first cites
Wecht
the moment.
tous
resolve
not one
opinion,
in his June
83.1
Rule
of Local
noted,
coun-
defense
As
other
contempt
no mention
is
there
con-
adverse
any future
may appeal
facts
sel
description
Judge’s
in
than
note
now,
simply
we
For
tempt rulings.
to the
also cites
case.
of another
re-
actions with
Court’s
District
that
stated
Judge
where
12 conference
May
the level
not exhibit
contempt do
spect to
opposing
believes
any counsel
“if
Certainly,
recusal.
necessary for
of bias
the Court
violating the
is
counsel
of sched-
practice
not approve
we do
a
file
rule, they should
the local
and/or
the midst
in
contempt proceedings
uling
counsel ad
the opposing
to have
immediately
without
case
fought
hard
I will hold
contempt
in civil
judged
possible
It is
issue.
resolving the
it
believe
do not
771. We
App.
hearing.”
chill
may
punishment
of such
shadow
a threat
this as
characterize
fair
is
order,
clear
was not
June
In the
by defendant
cited
examples
two
other
28. The
Court had
alleged violations
Pre-
violations
the same
also concern
order,
to a Fourth
cites
the Court
because
May 17
In a
mind
Order.
trial
attorney found
determine
hearing would
involved
case that
a future
Circuit
stated
good
faith
acted
statements
making
contempt
had
counsel
if defense
inbe
May
meeting
Local
that mirrors
rule
when
a local
violation
example,
however,
final
exhibits.
opinion,
discuss
11 to
The recusal
83.1.
Rule
aas
characterized
certainly
cannot
mat-
which
threat,
on the
Court’s views
clarifies
opinion
July
Judge’s
20 recusal
is
ter.
would
that defense
he states
in which
appeal
adverse
opportunity
ruling.
contempt
advocacy
zealous
of defense counsel. But
Not establishing bias or partiality ...
surrounding
circumstances
the threat
expressions
are
of impatience, dissatis-
of contempt in this case
not “display
faction,
does
annoyance, and
anger,
even
deep-seated
antagonism
favoritism or
are within the bounds of what imperfect
judgment
make fair
impossible.”
women,
men and
even after
been
having
Liteky, 510
at 555,
U.S.
had been
mentioned
variety
a wide
of Liteky,
555-56,
b. Antagonistic Comments *25 The claim that the District Court Judge Defense counsel also asserts that accused counsel of “impugning Judge Co- Judge the has made a number of inappro hill” represents a skewed and unfair read- priate statements attacking them. Ac ing of the record. In response to Wecht’s cording Wecht, these include: quoting claim that he demonstrated bias in han- from the defense firm’s website to suggest dling jury questionnaires, the District that counsel fully were capable of review Court Judge merely explained that he was ing government’s the exhibits in the time following practice the of Judge Cohill, “a provided by schedule; criticizing distinguished de jurist,” and that he did not fense counsel for filing dispositive doing motions believe so “constitute[d] bias or lack earlier than required; stating of impartiality.” that consti App. 684. tutional challenges corruption We do also not credit defense counsel’s charges were merit”; “without accusing claim that the Judge “chastised” counsel defense counsel of impugning Senior Dis for filing dispositive motions earlier than trict Judge Cohill; Maurice and referring required. Wecht Pet. at 48. The District
to defense arguments counsel’s concerning Court Judge was frustrated with defense Stephen Zappala as “breathless accusa counsel for not objecting to govern- tions.” Wecht Pet. 48-50. ment’s exhibits in accordance with the schedule in comments Wecht Order, cites do Pretrial not dem- and be- onstrate an lieved counsel appearance of bias. had filed motions in Su- lieu of preme working on explained has exhibits. remarks
that are critical or of, disapproving or We find the extensive quoting from de- to, even counsel, hostile the parties, or fense counsel’s website more troublesome. cases, their ordinarily do not support a For more than a page his written opin- bias or partiality challenge. They may ion, Judge quoted passages from the do if so they reveal an opinion that website, including a paragraph touting derives from an extrajudicial source; firm’s intellectual property and technology and they will do so if they reveal such a practice, as well as more general pro- high degree of favoritism or antagonism motional statements such as lawyers “[o]ur as to make fair judgment impossible.... practice at peak profession.” our majority’s ofB I concur Section character- we believe While 417. App. my state separately to write being opinion, was counsel defense ization sealing. of document on issues overstate- views an “sarcastically ridicul[ed]” not address inap- does opinion was This passage think ment, dowe unsealing or- stay Certain- decision Pet. at Court’s See Wecht propriate. necessary not der. website ly, quoting should show herein, respect- I stated the reasons For materials reviewing the capable been majori- C Section fully dissent Nevertheless, we do fashion. timely of recusal question on ty’s opinion ... degree of “high reveals believe reassigned be this case order that im- judgment fair to make as antagonism judge. newa 555, Liteky, U.S. possible.”
S.Ct. Facts30 I. Statement of the evidence all of Having considered presented, has that Wecht arguments many years served H. Wecht Cyril Judge should agree we do and as County Coroner Allegheny as signifi- imposed has This case disqualified. for numer- pathology in forensic expert Judge, on burdens cant for district clients, as well private ous goal important pursued has who counties. in other and coroners attorneys trial. swiftly toward the matter moving alleges that essentially The Government over presided has effort, pri- his county resources used has conferences status lengthy several clients private his clients, charged vate in an motions pre-trial numerous ruled himto provided were items that certain *26 agree we Whether manner. efficient improperly county government, management Judge’s aspects awith local cadavers unclaimed exchanged inquiry. present to our irrelevant case facilities laboratory of its use college for to demonstrate has failed simply Wecht private his work. “fa- “high degree” or “deep-seated” indictment that Wecht’s claims Wecht make that antagonism or voritism by one led scheme political 555-56, arose from Id. impossible.” judgment fair asserts, part, in He enemies. political his 114 S.Ct. In par- prosecution. of selective a defense At- CONCLUSION III. the District ticular, asserts Wecht Zap- County, Stephen Allegheny torney of modify reasons, we foregoing For ain “engaged been Wecht pala, and au- supervisory our under Rule 83.1 Local failure by Zappala’s caused debate spirited unseal- District Court’s affirm thority, police- white prosecute investigate deny order, and stay of ing order in deaths citizens black had killed men who for mandamus. petition Dr. Wecht.” homicide species ruled a in concurring BRIGHT, Judge, publicly Circuit Zappala maintains Wecht dissenting part. Wecht part investigation a federal called for publicly prevent Wecht in order majority’s A of Section I concur in He states deaths. those into inquiring do gag relating opinion led Bradley Orsini Agent FBI opinion. in this issue not address necessary address with additions majority's accepts the opinion While this opinion. separate in this discussed issues facts, of them some restates statement investigation of Wecht and also the “public requested, Government alternative, corruption” investigations of other Demo- that if disclosure was required, the Court Pittsburgh. crats in Wecht also maintains limit the materials’ use to only a redacted that, aggregate, forty-seven copy and only if Orsini testified at trial. eighty-four count indictment relates to no Also, if disclosure were required, the Gov more than in allegedly $2000 fraudulent ernment asked for a protective order limit expense reimbursements. ing the use of the materials. The District Pretrial Proceedings Court ruled on the Government’s motion promptly; in a order, sealed April
On during pre-trial pro- Court ordered ceedings, the Government Government filed to turn motion permission over seeking to file “the materials underlying to Wecht’s counsel. motion under However, seal.” Although this motion the District Judge specifically docketed, was there was no “underlying stated that because the documents consti motion” attached to it on the docket. tuted Brady/Giglio material, the Govern thereafter, Shortly the District Court ment need not disclose the materials until granted the motion file the underlying (as August set forth Order). in the Pretrial seal, making no findings as Because the order sealed, only the to why the document should be sealed. Court and the Government knew its con morning, next at a pre-trial confer- tents. ence, defense pointed counsel out to the Contemporaneously April Wecht Judge: “The motion that was filed filed a motion to suppress under seal certain evi- yesterday, we don’t even know dence. motion, what it is.” The Wecht challenged responded, “That’s right.” search Defense warrants obtained in inquired further: this case “So, by Agent Orsini, says Your Honor he is going alleging rule Orsini fabri- on the motion. Is it cated something that affects statements in probable cause af- Dr. way some fidavits, because how are the warrants probable lacked we supposed respond to the motion?” cause and were “infected with [Orsini’s] The Judge replied, (Em- “You are not.” deliberate and falsehoods,” reckless *27 added.) phasis warrants were facially defective, and Orsi- ni impermissibly
The used the “underlying warrants motion” appears on the general rights docket as filed April 7, on seizure. Wecht main- the same day tained a defense counsel witness they was told could testify would Orsini know its was an agent contents. It was a filed under “with seal known bad and reputation described on FBI, within docket only including as a hav- sealed ing urged Government motion. witnesses This to perjure sealed themselves motion sought an in a parte “ex case involving in camera” his own misconduct.” ruling toas whether certain materials un motion attempted, part, to connect favorable affiant, to the Agent Orsini, the dots on between Wecht’s claim of selec- two Wecht search warrants must be tive and dis prosecution vindictive with Orsini closed as exculpatory impeachment or in and concerns about Orsini’s credibility. formation under Brady and Giglio.31 The Wecht did not learn the ex parte notes, majority As the Brady Mary- dence to Giglio defendants. In v. United land, 83, 1194, U.S. States, 83 S.Ct. 10 L.Ed.2d 150, 763, 405 U.S. 92 S.Ct. 31 L.Ed.2d (1963), Supreme Court held that (1972), the Court impeachment held that government must turn over exculpatory evi- evidence constitutes Brady material. eliminating the Wecht, thereby tions from to Orsini’s related order sealed and motion or authenticate to burden Government’s later. weeks several credibility until any of them.33 lay a foundation a motion denying 1, when May On however, rele- “possible open, left Court Orsini, the District discovery pertaining may solely result objections, vancy already or- it had mentioned Court Sup- on Motion rulings from future certain to disclose dered Government to Dismiss.” or a Motion press Two Brady/Giglio. under materials Orsini set forth procedures response In 3, Government May later, on days order, counsel defense in the order, covering protective a protective requested per- 26, May requesting a on filed motion accompany- motion parte the ex both seal under a file motion mission to limit defense documents, would ing reports of the portions what determine ultimate- if the documents use counsel’s proceedings.” in “further could use they counsel Defense them. ly disclosed this re- counsel filed defense At time filed various then media various proceed- “further anticipated quest, advising the notices, and briefs responses, (1) unsealing hearing ings” were findings neces- made had that it Court (2) possible a 5 and for June scheduled oppos- the documents sealing sary not been had hearing, which suppression protective proposed the Government’s ing had not the Court yet because conference, scheduled 12May status aAt order.32 suppress, motion ruled on present, the media hearing. for a request a which included protective a entering responded denied however, the Court May On only defense showing finally then motion, in- suppression of Wecht’s most protec- materials. sealed counsel hearing to estab- for a request from, cluding his prohibited tive order probable had falsified that Orsini lish con- “disclosing the things, other among limited affidavits, but scheduled cause In- Confidential or substance tents only respect 8 with hearing for June ap- prior court absent open formation of docu- “boxes” certain the seizure to a pursuant obtained Court proval ” ments. .... sidebar sealed submission sealed Judge established addition, the District denied Wecht’s On June for consideration briefing schedule seal a motion to file May 26 should Orsini whether to use cer- request in which hearing and set reports unsealed as Orsini from the tain statements next month—June for the that issue the date court. As open potential request, denied *28 5 a June included proceedings” “further 17, the District meantime, May on the limited a June hearing and unsealing the Government’s all of admitted 5, at the June hearing. On (which suppression 1,300 trial exhibits approximately Judge invit- District hearing, the unsealing 240,000 pages approximately constituted unsealing on briefing supplemental ed objec- considering any documents) without capably majority describes Because newspapers parties, two 32. The media counsel, Govern- stations, dispute on between intervene moved television two led ment, on heard 12, to be motions filing various May exhibits, opinion does sealing and regarding procedures of these admission issues records, and closure, case and to unseal it. not restate gag order. object issues, which effectively delayed the un- jority in this case affirms the District sealing until decision after suppression Court’s decision to unseal the Orsini hearing on “boxes” scheduled for June part documents in because District 8, 2006. Judge possessed the au- discretionary thority to
On June unseal finally documents or ordered parte (in ex its previously motion amend and exhibits unre- issued orders. I form) dacted unsealed, agree stayed that this the or- Court should affirm the der to allow the Government to appeal Court’s decision to unseal the Notably, decision. the Court denied the documents. I write separately, howev- unsealing Wecht, as to pointing er, to assert the District Court’s out that Wecht failed to demonstrate a initial sealing of the documents rested for unsealing basis Then, documents. on improper procedures and resulted order, the same the Court granted the little, a “too too late” outcome. motion as to the interveners, media ex- The District Judge’s sealing of the ex plaining that the Government had “not parte motion and accompanying docu established a compelling interest or good ments any without findings shifted the cause to justify the continued sealing of legal burden for sealing. The burden doc. no. 60.” Because of stay order, justify sealing a document or for entry the sealed materials have remained undis- of a protective order is on the party public closed and not useable seeking its sealing or protection, not, as Wecht to this day. imposed case, in this on the defendant. From this decisions, series of the Gov- Leucadia, See Inc. v. Applied Extrusion appeals ernment the District Court’s order Inc., Techs., Cir. unsealing the Orsini documents and Wecht 1993). When a court considers im has filed a petition of mandamus seeking position seal, of a it must make particu recusal of the District Judge. Although findings larized record, giving media challenge the District notice on the docket of such consider Court’s stay decision to its unsealing or- ation and rejecting alternatives to clo der, this opinion only addresses the Gov- sure. See Criden, United States v. appeal ernment’s petition (3d Cir.1982). F.2d In this recusal. case, the District Court did not make II. Discussion any such findings. The Government merely filed a motion requesting permis If this case illustrates basic princi- sion to file the underlying motion under ple justice, it is secrecy and the seal. No underlying motion was at right of the defendant and the to a tached and no reasons given justi fair were and open trial do not mix except in fying closure. Even the rare underlying and unusual mo circumstances pre- tion did not justifications address sented this case.
sealing the documents, but concerned A. District Court’s Unsealing Order whether certain documents constituted
The District Court in Brady/Giglio this case material. sealed Rather than im ex parte the motion posing without on the making any Government the burden to findings to justify sealing. its justify prac- This sealing motion, the the Court tice was improper and limited Wecht’s sealed the motion from the outset and ability to prepare his defense. The ma- then the media and Wecht were forced the rele- not witness, see the Court does toas Court briefing the spend months to testimony, even purported his vancy of be wtsealed. should why the motion continually for defendant though counsel months, while intervening those During accuser.” him the “main as to label seeks documents accompanying motion the is unseal to Thus, motion defendant’s Wecht’s sealed, denied the Court remained DENIED. was his counsel suppress and to motion the docu- any of using from prevented requested the the time Government But, at the regarding hearing the limited at ments parte motion the ex submit to permission materi- The sealed “boxes.” of the seizure yet been seal, had not matters these under relevant were Agent Orsini als about Govern- the relieved The Court resolved. suppression importance crucial cause as good to show itsof burden ment had fa- that Orsini motion, alleged which be sealed should why the documents to cause probable in statements bricated had at- then, the Government after Judge denied District Yet affidavits. of the the usefulness to eliminate tempted under seal a motion file request to Wecht’s not be stating Orsini would documents the docu- portions to determine witness, the District aas called and how.34 in court used could be ments them to unseal requests denied unsealing the docu- decision Notably, its purpose. useful they lacked because pre- explained ments, the District been ren- had Judge ulti- media, the documents cisely how the District toAs to Wecht: useless the Government dered that mately determined to have to cause good he wishes argues demonstrate Defendant failed to had may use he sealing. so that no. 60 unsealed continued doc. justify documents’ hearing any at above, therein relief information Yet, demonstrated 55), (doc. no. suppress little, the motion too late. too media is even Agent FBI Orsini trial, impeach ator gain access will though Even motion However, defendant’s since ... passed has documents, time 55) (doc. been de- has no. suppress Agent challenge them to use Wecht the defendant’s nied, part first hear- suppression testimony in the Orsini’s Secondly, since is moot.... argument benefitted thus The Government ing. indicated has the documents sealing of improper Agent Special call intend to not does in- using deprived has been Wecht 6), (see page no. doc. at trial Orsini contained Orsini Agent about formation argument at trial” use “for defendant’s or at suppression therein time as such until at moot least also is hearing. suppression Special states merely have did testify at tri- fact will in Agent Orsini mo- parte ex to unseal the discretion contends Thirdly, defendant al.... obligated exhibits, and its tion Agent Orsini Special to call intends he documents. law to unseal under not a “fact” Agent Orsini Since trial. per- seek not even could Wecht can- indicated order explains that this majority 34. The statements certain use seal to mission to mean be construed remained protective order using court and Judge restricted not unreasonable It was effect. suppres- full the "boxes” Orsini that under mean the order understand could defense counsel hearing because sion the documents he use could circumstances no Court's "lack sought clarification hearing. suppression during the Court’s disagree. I specificity.” *30 226
My basis, concurrence rests on this not on anee of impartiality when reassigning sen- the basis of the District Court’s discretion. tencing judge appeared who to have inap- propriately considered defendant’s decision
B. Recusal
the District Judge
plea
bargain); Alexander v. Primerica
Although I
(separately)
concur
in the
Inc.,
Holdings,
155,
(3d
10 F.3d
164-68
majority’s
affirming
decision
the District Cir.1993) (reassigning a case from a judge
order,
Court’s unsealing
I dissent from its
appeared
who
aligned
with the
opinion with
respect
petition
defense);
Inc.,
Haines v. Liggett Group,
mandamus requesting recusal of the Dis-
(3d
81,
Cir.1992)
975 F.2d
98
(exercising
trict Judge.
I dissent to express my opin-
supervisory power to reassign judge be-
ion that we should
remove
cause it
“impossible
for us to vindicate
Judge from this case either under 28
requirement
of ‘appearance of impar-
455(a)
§
U.S.C.
or our supervisory powers.
tiality’ in view of the statements made in
the district court’s prologue to
opin-
its
1. The Standard
Recusal
ion”). Significantly, appearance alone is
The decision to remove a judge from an
sufficient to warrant relief on mandamus
ongoing trial
be
should
considered
“
serious-
because
‘while review after final judg-
ly and made only rarely. This
may
(at
cost)
can
ment
cure the harm to a
order the recusal of a judge pursuant to 28 litigant, it
additional,
cannot cure the
sepa-
455(a)
§
U.S.C.
appearance
for the
of par-
rable harm to public confidence that sec-
tiality or reassign the
to a
case
new judge
”
tion 455 is designed to prevent.’
See
under
supervisory
powers. See 28 Alexander,
3. Other materials could be (as August withheld until set forth above, Considering all of the the ex Order). Brady require Pretrial does to the District parte motion submitted disclosure, early see United States v. Kap extrajudicial closely resembles lan, Cir.1977), 554 F.2d appearance heightens source that explained prefera this Court has that it is But, just far. bias in case so Brady ble for materials to be disclosed extrajudicial of an source consideration See, well in advance e.g., of trial. United recusal, require Liteky, does not see Starusko, 256, 261, States v. 554-55, neither U.S. S.Ct. (3d Cir.1984) (describing “longstanding parte communi- should consideration ex policy encouraging early production”); Alone, consideration cations. Court’s (“[W]e Kaplan, 554 F.2d at disapprove *34 advocacy likely parte ex would not discourage practice delayed pro evince bias sufficient to warrant relief for materials.”). Brady duction of Given such Wecht. Yet the District Court’s consider- admonition, precedent and that Wecht had parte ation of the ex motion created a suppress raising very filed motion to backdrop against rulings which its future Agent yet- concerns about Orsini that the appear, in substance and in timing, ques- addressed, undisclosed materials and that tionable. parte Government’s ex motion ex Alexander, explained this Court plained delay its desire to disclosure of the we need not decide the merits of each materials, layperson an informed would rather, allegation against judge; reasonably Why ask: would the District “appropriate-and only-inquiry to which Judge suggest delay such a to the Govern respond we must is ‘whether a reasonable ment? person, knowing acknowledged all the cir- b) May Admission Evidence. On cumstances, might question the district 2006, the Court admitted all of the Govern- ” court judge’s impartiality.’ continued 1,300 approximately ment’s trial exhibits (citation omitted). Thus, F.3d at 164 with- any objections without considering from determining evaluating out the merits and eliminating Wecht the Government’s rulings, opinion District Court’s this lay burden to authenticate or a foundation picture Judge examines the the District however, for them.40 The open, Court left painted in his courtroom and asks whether “possible objections, relevancy may facts, a layperson, given all the would rea- solely result rulings future on the sonably receiving believe Wecht was an Suppress Motion to aor Motion to Dis-
impartial trial. Judge’s ruling, miss.” The District at this
a) April 7 Sealed Order. In the sealed point, effectively eliminated the Govern- requiring the Government to turn evidentiary ment’s burdens on foundation defense, over the Orsini materials to the potentially reduced Orsini’s role in the Judge the District reminded the only Govern- case. The remaining avenue for Lindh, above, See F.Supp.2d United States v. explained 40. As in the fact section (E.D.Va.2002); Appendix see also Joint majority capably because the describes the 728-41. In neither the Hsu case nor the counsel, dispute between the Govern- practice Lindh case did a court endorse the ment, Judge and the District which led to the submitting pages advocacy nine that re- exhibits, opinion admission of these does by opposing mained unchecked or unknown here; not re-summarize it the decision's effect connection with in camera review is the relevant consideration. Brady/Giglio materials. ‘good counsel’s faith terestingly, defense involvement challenge Orsini’s challenge the ‘foundation’ objections’ the evidence was handling even and conduct Thus, subject to custody’ of defendant’s suppress. [sic] and ‘chain the motion suppress, records, the Gov- tax including personal motion to re- own pending Orsini to longer returns, no need turns, corporate tax corporate ernment would any of evidence. lay the foundation .... ledgers loss Countless general/profit reasonably would layperson An informed records of Dr. Wecht are other business Judge admit Why ask: objected to on the basis of ‘Relevance documents, 240,000pages of approximately (FRE (FRE 802); 402); Hearsay Authen- foundation, trial exhibits? without (FRE Foundation; 901); tication ” Perhaps Wecht’s ob- Custody.’ Chain that the agree majority appears specific, more jections could have been in its improperly treatment Court acted expresses exaspera- comment Court’s exhibits, infer but declines to the trial asking the with defense counsel for tion because the of bias appearance the Government to Court to estab- require con- ultimately his mistake cured However, admissibility pro- lish the basic features of objections. sidering objec- of Evi- the Federal Rules finally considered Wecht’s vided under after exhibits the Government’s dence. tions to *35 from defense pleas numerous
rejecting which the re- to Court documents modify order or reconsider his counsel to rec- may constitute business fers indeed Also, District order. pretrial however, ords; it is the bur- Government’s ultimate consideration of Wecht’s Judge’s evidence, den, proponent as failed to undo to the exhibits objections foundational elements provide the cure led to This so-called damage done. qualifies for the busi- show each document as numerous documents the admission rule exception hearsay to the ness record good no appear to have trial exhibits 803(6). no is under under FRE Wecht counsel included at trial. Wecht’s use features. stipulate to those obligation have now of items that petition a list his one partiality It is a hallmark trial exhibits. Some as been admitted burden. The put of blank to be to its photocopies party include these items covers, a nurs- without founda- a brochure for this evidence compact disc admission of seminar, multiple to have advanced ing litigation testimony appears home tion identifying fea- keeping with no goal *36 Then, after June 5. on June clarify seizure to the scope of the
unsealing hearing, the Judge invit- seizure and to assist in determining wheth- ed supplemental briefing unsealing on the er examination, to take 20.” issues, “box On cross effectively delayed which un- counsel for Wecht then attempted to ask sealing decision until after the “boxes” Agent Welsh how well suppression hearing Agent he knew scheduled for June Now, Orsini. May Counsel for the 26 motion Government ob- was jected longer no and the objec- moot because the ruling Court’s sustained the Later, unsealing relevancy. on the tion for would occur the District after the suppression hearing. Judge Agent Rather than asked Swim and counsel for counsel, hearing out defense might who Government whether go- someone was clarify have been ing testify able to its intended use custody as to the chain of (whether reports they or not “clarify would the boxes to that issue.” Counsel exhibits, Judge ment’s trial the District de- steps managing essential in a civil his reliance Guide, scribes Elements Case supra (emphasis case.” Pocket at v add- Management: Judges A Pocket Guide ed). pertaining manage- The rules to case (2006) Complex Litigation and Manual complex litigation ment of apply civil do not (4th ed.) (2006). apply These texts do not to criminal trials for Constitution specifically criminal trials. The Manual provide safeguards and case law for a fair states: "because civil and criminal case man- necessity trial. While there organiza- is a agement significantly differ ... this edition trial, efficiency tion and those interests Manual, only litigation.” deals with civil su- against rights must be balanced of a crim- added). pra (emphasis at 2 Similarly, the liberty inal a defendant: man’s is at stake. "pithy guide Pocket Guide describes itself as a the motion as to the media granted that he had responded for the Government interveners, for the the Govern- explaining that as an issue not envisioned testify compelling could agents that the ment had “not established hearing, but then custody. Agent justify Swim the contin- good chain of interest or cause about Agent Wecht, Orsini gave that he sealing testified of doc. no. 60.” As to ued it, put would seizing which after evidence the burden on him to placed the Court custody. in the chain of directly documents, Orsini as to justify unsealing but media, placed the Court the burden on testify at was scheduled Agent Orsini the Government. after hearing sometime suppression Although Orsini testified Agent Swim. ruling strange unsettling This is a hearing, pre- suppression If a in contrast to the media. as Wecht credibility with challenging his cluded from unsealed, it is unsealed to the document because of the stric- the Orsini unsealing world. The distinction between place. protective tures of materials on motion Orsini recess, the District After Wecht, media, appear- creates an exclude mind and decided to changed his hostility, partiality. if not An in- ance of scope of the custody from the chain of reasonably ask: layperson formed would has the Certainly judge a trial hearing. treat the Why did the District Court media a rele- limit examinations to discretion differently than Wecht? mind as to may change his scope vant f) argues Box 20. Wecht Review of but, layperson an informed scope, seized “box 20” be- improperly the FBI (in reasonably light of the Gov- ask would label, “Flo-for Wecht law cause the box’s parte ex mo- ernment’s statements firm,”43 placed it outside the (other than witnesses” tion that “other warrant. The “Wecht scope of the search Orsini) in the cre- “actually involved were firm, firm” to Wecht’s wife’s law law refers maintenance ation, custody, and chain of space office Defen- which shared evidence”): Was of [the] District Court concluded dant. When the Govern- to further Judge attempting 20,” it seized “box properly the FBI for founda- goal not to use Orsini ment’s cited, “plain view doctrine.” part, he curtailed custody when tion or chain Government, including the Neither party, testimony? custody chain of *37 lawfully seized that the box was argued e) On June Unsealing IS Order. June The District this doctrine. pursuant parte the ex finally ordered the Court justification for the sei- this Court devised unsealed, but motion and Orsini by ei- briefing suggestion zure without First, order. the Court in an unusual party. ther unsealing the motion denied any con- express opinion does This Wecht, failed to out that Wecht pointing of that deci- to the correctness clusion as unsealing the doc- a basis for demonstrate seizure, as the of the Then, propriety sion or the ruling, in the same uments. might reasonably layperson also only informed showed 42. The District May May Why did the District at a 12: the Orsini documents have asked on differently in- the media became conference once the media Judge appear status to treat presence. The Dis- in the media’s volved and Wecht? than Judge previously had indicated trict subject get to know Wecht would Johnson, a Flo presumably refers to 43. "Flo” materials, changed the sealed matter of Pathology. Wecht private assistant for presence. An the media’s mind once in his to decide view of the manner and method of seizure not asked this Court parties have Judge erred inquiry would have included into the con- whether the Nonetheless, in order to discern Orsini, who, respect. Agent by duct of his own District Court’s use whether the testimony, played key role the seizure suggests appear- plain view doctrine of box 20. must, extent, bias, one some ance of a trial Although judge may properly dis- may misap- have been consider whether justification cern a legal his decisions exception, plain view
plied. “Under prompting by parties, given without must authorities law enforcement prior possi- context of this case and the lawfully premises, on the discov- been misapplication ble of the plain view doc- inadvertent, and the ery must have been trine, Judge’s the District choice enhances the item must incriminating nature of suspicions favorably the Court was immediately apparent.” United have been disposed to the Government. Given the Scarfo, 685 F.2d States v. background, particularly the District added). Cir.1982) Box 20 was (emphasis Judge’s prior admission of the Govern- found, closed, storage in a room in the lid ment’s other evidence without consider- and his wife’s space shared office Wecht objections, ation of foundation or an in- given specific were Agents law office. The belonging layperson reasonably items formed ask: direction not to seize Agents Judge law office. The testi- Did the District Court Wecht strive in part fied that the box was a bit unusual reach a result favorable to the Govern- label, it bore a “Flo—for the because ment? Agents it. The testi-
Wecht law Firm” on
they
of the box and
opened
fied
the lid
Contempt
Threats of
pertaining
ongoing
files
or recent
found
argues
also
Wecht
threats of con
autopsies.
these circum-
Under
stances,
tempt
antagonistic
questionable
it is
for the District
remarks made
appear
Court to have concluded that the incrimi-
the District
contribute to an
of a
nating nature of the contents
closed ance of bias.
reassignment
“Just as
immediately apparent.
box was
if
necessary
reasonable
could
observers
improper
believe
outside contacts in
Moreover,
Judge acknowl-
decision,
judicial
fluenced a
so too is reas
edged
suppression
he also based his
signment necessary if reasonable observ
decision on his own in camera review of
judicial
ers could believe that a
decision
question
contents of
box.
judge’s
flowed from the
animus
toward
posed
to the District Court Wecht was
party
judge’s
rather than from the
applica
lawfully
whether the box was
seized. The
Kempthorne,
tion of law to fact.” Cobell v.
Court,
alerting
without
either Wecht or
(D.C.Cir.2006) (internal
Government,
reviewed contents of the
*38
omitted). Although
expres
citations
such
they
box and determined that
fell within
impatience
anger
sions of
or
are not alone
scope
By undertaking
of the warrant.
recusal,
box,
sufficient to
Liteky,
warrant
see
a
of the contents of the
rather
review
555, 114
510 U.S. at
S.Ct.
this case
considering
than
the method and manner
box,
they may contribute to the overall
appear
which the Government seized the
deprived
partiality considering
ance of
the other
opportuni-
Court
Wecht of
ty to refute the Court’s conclusions about
circumstances
above.
described
See Co
(“But
bell,
prior
making
contents
to the Court
First, May coun- opposing believes “If counsel relating to summary, the materials of the Court violating the order sel is Brady/Giglio materials Orsini constituted file a rule, they should local and/or knew disclosure Government ad- counsel opposing have the motion to would harm its case before the documents I hold a contempt and will in civil judged jury public. and the The Government ex a comment, although on hearing.” This protect this information parte sought made was party, to either applicable face (1) requests: that the two alternative com- Government’s context of the in the would never disclosed materials Orsini counsel’s defense to the Court about plaint (2) them, only or, to disclose required if specter comments. extrajudicial order, and protective redaction and proceeding was during that contempt if testified at trial. Gov- only Orsini at defense counsel.44 aimed represented to the District ernment also opinion Second, in its memorandum would not be the documents Court motion for reconsidera- denying Wecht’s plan to Wecht did useful because of the Government’s the admission tion on trial, testify at notwithstand- call Orsini exhibits, “After the stated: trial FBI appears to be the lead ing that Orsini contempt trial, will schedule investigating case. agent adjudicate whether hearing to Court, without notice The District repeatedly ignoring conduct counsel’s Wecht, parte on the ex input from relied taking without Pretrial Order this Court’s Government representations Order modify said steps to appropriate the Government requests followed so, and, if what contempt constitutes o'r unavailable by making The Court appropriate penalty.” be the Many present until the time. up unusable (4th Morrissey, 168 F.3d cited In re this rulings that followed of the Court’s ad- Cir.1999), penalty a case which to have procedure appear parte initial ex ninety days judged against counsel of the Govern- furtherance been made two years’ probation, three imprisonment, connection to to limit Orsini’s goal ment’s violating “knowingly years’ suspension or, minimum, to favor case id. at 137. a local rule.” See basis, this the unbiased On Government. province certainly it is within While reasonably question the observer would to com- judge to require of a trial impartiality. Judge’s orders, threats can repeated ply with its my recusal at the As noted outset unjust- when appearance create the bias suggest discussion, does not opinion appear- pre-existing can bolster ified or actual bias Cobell, Judge harbors that the District 333- ance of bias. See bright, undoubtedly case. He is warnings in this Judge’s 35. While to "hire a First Moreover, defense counsel expressed Court advised *39 when 44. defense expert in the rule, lawyer that’s with Amendment combined with the concerns local having difficulty you you if are to advise field contempt,” and their cumulative "risk of such understanding it.” advocacy, chilling speech effect of sincerely working, attempted and has hard RENDELL, Edward justice highly in a G. In his official
thus far to administer capacity litigated by case publicized, fought hard as Governor of the Common Pennsylvania; Yet as this Court experienced Spec counsel. wealth of Arlen before, has stated that is not the test ter, capacity In official as United his Kensington, recusal. See 294. Senator; Santorum, States Rick his In case, particular- The circumstances of this capacity official as United States Sen ly given the content and circumstances of ator motion, parte compel the conclusion ex person, knowledge
that a reasonable with facts, of all the would conclude that the RUMSFELD, Donald H. In his official Judge’s might impartiality reason- capacity Secretary as of Defense of ably questioned. be See id. 301. States, Appellant. the United Nonetheless, judge must able to rely parties, on counsel for the which have No. 05-4740. court, duty to inform of'candor Appeals, United States Court of case,
judge’s decisions. the Gov- Third Circuit. parte practice appears ernment’s ex . have influenced the Court to exclude de- Argued Nov. adversary
fense counsel from the process respect with to the Orsini documents. Filed April The chain proceedings of motions and part 'secrecy followed in flowed from the
surrounding the Orsini documents. More-
over, the flood evidence the Gov- defense,
ernment transferred to the tri- exhibits,
al and the Government’s efforts keep Orsini’s record hidden from the and the raises-serious con- propriety
cerns about the of the Govern- ease, All strategy.
ment’s in this counsel,
through obligation have an their to assist justice the courts and to see that n fairly. administered
In summary,"and reluctance, it is
my view that judge preside another should and, therefore,
over the trial of Wecht I
dissent from majority. This Court grant
should petition for manda-
mus disqualifying Judge presiding
further over the criminal trial of and authorizing the Chief
assign the
judge.
case to another
notes
motion.
review
in camera
motion
that with
to materials
referred
previously
judicial
as
them
“clearly establishes”
govern
part
as
be disclosed
must
Sec-
Goldstein,
at
F.3d
260
records.
“dis
as
obligations
constitutional
ment’s
po-
evaluated
ond,
District Court
Bo
United States
covery materials.”
records
the Orsini
relevance
Cir.1980);
tential
see
281, 285
cra,
F.2d
623
disclosed
be
they must
Inc.,
Cities/ABC,
determined
Capital
re
also In
evi-
impeachment
possible
that was
(describing “material
F.2d at
dence.
judicial
Public access to
determi-
Finally, we believe the records were rel-
“provid[es]
nations
public
with a more
evant
to Wecht’s suppression motion.
complete understanding
judicial
sys- There is little doubt that Wecht would
tem,”
“promotes
public
perception
have cited the Orsini records in his papers
Criden,
fairness.”
(in-
Notes
notes certain she submitted when al” the rea- him with judge and “discussed trial precluded from was the defense Whether confidential”). This keep the notes sons suppression hear- at the using however, does, require us to ad- appeal, below. we discuss separate issue that ing is a submission government’s whether dress Instead, only pre- we are appropriate. disagree the dissent We do Brady whether question of materials potential with the the submission sented bias, advo- papers along with reveals this case review camera for in review camera may present bias, part of position on the government's cating appearance creates See, e.g., view. Court, a one-sided judges with not believe we do trial 39, 60, Ritchie, U.S. Pennsylvania does. (1987) (noting L.Ed.2d S.Ct.
notes stated handwritten the Government’s rea- layperson tures. An informed would Although witness stand. Orsini off the sin- sonably ask: Does the Government wit- have intended to call may Government all of these documents cerely to use intend lay the founda- than Orsini to nesses other trial exhibits? event, as exhibits, tion for its of ev- wholesale admission Judge’s District reviewing Court, supposedly while the Government precluded idence day, 34,000 documents a average of An purpose. for such having to Orsini call virtually all of to have overruled seems ask: reasonably would layperson informed relevance, hear- objections as Wecht’s obviate, upon re- even Why did foundation, authentication, chain say, consideration, the Government’s burden the documents custody qualifying — it intended for evidence records, lay the foundation records, business “In- to use trial? The Court stated: records. personal Govern- admission of the denying opinion reconsideration In his memorandum c) Request ultimately unsealed), Denial to File remain June 2 sealed or response Motion Under Seal. denied defense counsel’s re- in the procedures protective set forth or- quest to even make a motion under seal. der, request May on Wecht filed to Hearing might such motion have clarified permitted seal. If file motion under Weeht’s intended use of the documents at motion, request file intended to Wecht only the unsealing hearing, but also certain statements from the use Orsini the suppression hearing. reports open court. The Court denied An layperson reasonably informed in a request docket text order on Why, if protective ask: order set forth Presumably, the District Judge June 2. procedures for requesting permission to request premature considered Wecht’s be- (which use the sealed documents hearing cause whether followed, and the op- Government did not only days would be unsealed was three pose), did the deny Wecht’s counsel away. Naturally, if the Court unsealed ask, opportunity seal, even to hearing, request the documents at that might how it use the contents of the docu- Conversely, would be moot. it would have layperson ments? Such a also would rea- discuss, inappropriate open been sonably Why, very ask: at the time when court, the contents of sealed documents in arguably relevant, the documents are most a hearing the context of on whether to would the Court restrict Wecht from even maintain the seal. asking might how he use them? oppose Yet the Government did not d) Suppression Hearing. Limited At motion and the Court did not advise de- boxes, suppression hearing on the fense counsel that it would reconsider the Agent telephoned Welsh testified that he motion if the documents remained sealed Orsini, Agent elsewhere, who was during