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explaining that the Tenth Circuit has recognized "a qualified federal common law `journalist's privilege'"
Summary of this case from New York Times Company v. GonzalesOpinion
No. 00-CR-20091-01-KHV
August 8, 2002
MEMORANDUM AND ORDER
A hearing was held in this matter on August 7, 2002. The United States appeared through Assistant United States Attorney Scott Rask. Defendant appeared in person and through counsel Terrance Campbell. Nonparty Richard Espinoza ("Espinoza") appeared through counsel Michael Abrams. At issue in the hearing was a Motion to Quash Subpoena (doc. 115) filed by Espinoza requesting this Court quash a trial subpoena on grounds that, as a journalist, he is entitled to a qualified privilege against disclosure of the information sought. Both the parties and the nonparties present consented to disposition of the Motion by the undersigned Magistrate Judge pursuant to D.Kan. Rule 72.1.1(i).
Authorizing magistrate judges to perform additional duties pursuant to 28 U.S.C. § 636(b)(3).
After considering the evidence and arguments presented at the hearing, the Court overruled Espinoza's Motion to Quash. This Memorandum and Order will memorialize the Court's oral ruling.
Facts
In this case, Defendant is charged with trafficking or attempting to traffic in counterfeit trademark merchandise. On December 9, 1998, the Kansas City Star newspaper published an article regarding seizure of the alleged counterfeit merchandise at issue and on December 22, 1998, published a more general story regarding sales of counterfeit merchandise. Both articles were written by Espinoza and both articles attributed numerous statements and/or quotes to Defendant. Thus, Espinoza is a fact witness to whether the statements were made by Defendant.
At trial, the government seeks to introduce as evidence those statements and/or quotes attributed to Defendant that appeared in the newspaper articles written by Espinoza. The government maintains that, prior to admission, it must establish that Defendant is the same individual to whom the statements are attributed in the articles. To that end, the government issued a subpoena to Espinoza.
Discussion
The Supreme Court in Branzburg v. Hayes expressly recognized that reporter's newsgathering activities qualify for First Amendment protection. While a five-to-four majority of the Court held that, in the context of a grand jury investigation into the commission of a crime, reporters had an obligation to respond to grand jury subpoenas and to answer relevant questions, the limited scope of this holding was carefully emphasized. In his concurrence, Justice Powell, the majority's fifth member, stated that
408 U.S. 665, 681 (1972).
Id. at 707 (Powell, J., concurring).
[N]o harassment of newsmen will be tolerated. If a newsman believes that the grand jury investigation is not being conducted in good faith he is not without remedy. Indeed, if the newsman is called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation, or if he has some other reason to believe that his testimony implicates confidential source relationships without a legitimate need of law enforcement, he will have access to the court on a motion to quash and an appropriate protective order may be entered. The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct. The balance of these vital constitutional and Societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions.
Id. at 709-10.
Moreover, as Judge Merhige observed in Gilbert v. Allied Chemical Corp., if one aligns Justice Powell's concurring opinion with Justice Stewart's dissent, joined by Justices Brennan and Marshall, and with Justice Douglas's dissent, a majority of five justices accepted the proposition that journalists are entitled to at least a qualified First Amendment privilege.
411 F. Supp. 505 (E.D.Va. 1976).
Id. at 509.
Following Branzburg, the Tenth Circuit also recognized a qualified federal common law "journalist's privilege." To provide guidance for the lower courts in determining when the privilege applies, the Silkwood court approved a balancing scheme that included: "(1) [w]hether the party seeking information has independently attempted to obtain the information elsewhere and has been unsuccessful; (2) [w]hether the information goes to the heart of the matter; (3) [w]hether the information is of certain relevance; and (4) [t]he type of controversy.
Silkwood v. Kerr-McGee Corp., 563 F.2d 433 (10th Cir. 1977) (citing Branzburg v. Hayes, 408 U.S. 665 (1972)).
Id. at 438 (citing Garland v. Torre, 259 F.2d 545 (2d Cir. 1958)).
Although Silkwood was decided in the context of civil litigation, the Court sees no legally-principled reason for drawing a distinction between civil and criminal cases when considering whether the reporter's interest in confidentiality should yield to the moving party's need for probative evidence. Indeed, the important social interests in the free flow of information that are protected by the reporter's qualified privilege are particularly compelling in criminal cases. Reporters are to be encouraged to investigate and expose, free from unnecessary government intrusion, evidence of criminal wrongdoing.
Silkwood was concerned with the reporter's privilege in protecting its confidential information. Here, Espinoza seeks to protect nonconfidential information. The Court is persuaded, however, that nonconfidential information gathered by a reporter or other journalist is entitled to privilege as well; thus, the Court will proceed to apply the balancing test factors to the circumstances presented.
See United States v. LaRouche Campaign, 841 F.2d 1176 (1st Cir. 1988) (holding nonconfidential information may be privileged based on application of balancing test); United States v. Sanusi, 813 F. Supp. 149 (E.D.N.Y. 1992) (same); In re Grand Jury Empaneled February 5, 1999, 99 F. Supp.2d 496 (D.N.J. 2000) (same); Kidwell v. McCutcheon, 962, F. Supp. 1477 (S.D.Fla. 1996) (same). Contra, Gonzales v. Nat'l Broadcasting Co., Inc., 155 F.3d 618 (2d Cir. 1998) (holding First Amendment did not afford journalists' privilege for nonconfidential information); U.S. v. Smith, 135 F.3d 963 (5th Cir. 1998) (same, except in criminal case)
The Court first considers whether the government independently has attempted to obtain the information elsewhere and been unsuccessful. The government maintains it requested a stipulation from defense counsel regarding the statements attributed to Defendant in the Kansas City Star newspaper articles and that Defendant declined to agree to such a stipulation, asserting his Fifth Amendment privilege. The government also maintains it attempted to negotiate this issue with Espinoza's lawyers, but to no avail. Thus, the United States contends there is no other manner by which the information known to Espinoza could be introduced during trial. Neither Defendant nor Espinoza have provided the Court or the government with possible alternatives to securing the information allegedly told to Espinoza in the interview and later published. Espinoza appears to be the only person who can confirm that the statements published were made by Defendant and thus the only source of the information sought.
The Court next considers the relevance of the information sought and the type of controversy. In this case, Defendant is charged with trafficking or attempting to traffic in counterfeit trademark merchandise. Defendant allegedly gave an on-the-record interview with Espinoza, which in turn was published by the Kansas City Star newspaper. In the published article, Defendant is attributed with numerous statements against interest that, upon review by the Court, are material to the elements of the crimes charged. Plaintiff maintains, and the Court is persuaded, that these alleged admissions are critical to the government's prosecution as they aid in establishing Defendant's knowledge and intent, which are element that must be proven in a prosecution of 18 U.S.C. § 2320.
Conclusion
The Court finds the government has made a sufficient showing regarding the relevancy, need and nature of the proposed testimony to defeat Espinoza's Motion to Quash. This determination, however, does not resolve the privileged nature of any specific testimony from Espinoza sought by the United States. It is possible that specific questions posed on direct or cross examination of Espinoza may trigger privilege issues that must be balanced on a question-by-question basis. Without knowing the specific information that will be sought, the undersigned Magistrate Judge is not in a position to balance the interests at stake as required by Silkwood.
563 F.2d 433 (10th Cir. 1977).
Accordingly, it is hereby ordered that the Motion to Quash Subpoena (doc. 115) filed by Espinoza is denied and Espinoza shall appear to testify at trial as required by the subpoena issued.
It is further ordered that, unless the trial judge orders otherwise, Espinoza's testimony shall be presented at the conclusion of the government's case-in-chief in order for the trial judge to have as much information as possible in applying any balancing test that may be required on a question-by-question basis.
IT IS SO ORDERED.
United States v. Long, 978 F.2d 850 (4th Cir. 1992)
Concurring Opinion:
The reporter's attempt to invoke the Department of Justice's regulation must fail in light of the Supreme Court's holding in United States v. Caceres, 440 U.S. 741, 99 S.Ct. 1465, 59 L.Ed.2d 733 (1979). In that case the Court held that otherwise admissible evidence need not be excluded simply because it had been obtained in violation of a departmental policy with a purely internal enforcement mechanism. Id. at 756. This case presents closely analogous facts. The Department of Justice's regulation at issue in this case was promulgated without notice and comment under the Attorney General's statutory power to "direct" the litigation of the United States and the conduct of its attorneys. 38 Fed.Reg. 29588 (1973) (citing §§ 28 U.S.C. § 516, 519). It provides an administrative mechanism for enforcement, see 28 C.F.R. § 50.10(n), and expressly disclaims any intent "to create or recognize any legally enforceable right in any person." Id. Like that at issue in Caceres, then, the regulation invoked by the reporters is of the kind to be enforced internally by a governmental department, and not by courts through exclusion of evidence.