Wednesday, September 7, 2016

Third Circuit Rejects Media's Right to Names of Unindicted Co-Conspirators (9/7/16)

As Judge Easterbrook famously lamented in United States v . Reynolds, 919 F.2d 435, 439 (7th Cir. 1990), a tax case, conspiracy charges in criminal cases are “inevitable because prosecutors seem to have conspiracy on their word processors as Count I; rare is the case omitting such a charge.”  That is hyperbole, but not much.  One favorite trick of prosecutors charging conspiracy counts is to allege that there are unindicted co-conspirators who are unnamed.  For example, in the Enron prosecution, the Government asserted that there were up to 114 unindicted co-conspirators not named in the indictment.  See Mary Flood, Names of Some Enron Co-Conspirators Can be Released (Houston Chronicle 12/10/2004), here. Also, in the large scale tax shelter prosecutions in the Southern District of New York beginning in 2005, unindicted co-conspirators were ubiquitous.  The naming of unindicted co-conspirators in large cases with many culpable actors reflects the truism that all of the potential co-conspirators could not be indicted, at least in the early rounds of indictments, if ever.   (Perhaps the naming of some or even legions of unindicted and unnamed co-conspirators adds some appearance of gravitas to the case that it might not otherwise have.)

Why are unindicted co-conspirators not named?  DOJ's policy, here, is:
9-11.130 - Limitation on Naming Persons as Unindicted Co-Conspirators 
In the absence of some significant justification, federal prosecutors generally should not identify unindicted co-conspirators in conspiracy indictments. The practice of naming individuals as unindicted co-conspirators in an indictment charging a criminal conspiracy has been severely criticized in United States v. Briggs, 514 F.2d 794 (5th Cir. 1975). 
Ordinarily, there is no need to name a person as an unindicted co-conspirator in an indictment in order to fulfill any legitimate prosecutorial interest or duty. For purposes of indictment itself, it is sufficient, for example, to allege that the defendant conspired with "another person or persons known." In any indictment where an allegation that the defendant conspired with "another person or persons known" is insufficient, some other generic reference should be used, such as "Employee 1" or "Company 2". The use of non-generic descriptors, like a person's actual initials, is usually an unnecessarily-specific description and should not be used. 
If identification of the person is required, it can be supplied, upon request, in a bill of particulars. See USAM 9-27.760. With respect to the trial, the person's identity and status as a co-conspirator can be established, for evidentiary purposes, through the introduction of proof sufficient to invoke the co-conspirator hearsay exception without subjecting the person to the burden of a formal accusation by a grand jury. 
In the absence of some significant justification, federal prosecutors generally should not identify unindicted co-conspirators in conspiracy indictments. See USAM 9-16.500; 9-27.760.
With that background, the Third Circuit today issued an interesting decision in a case involving media access to the names of unindicted co-conspirators in the so-called Bridgegate scandal involving the prosecution of Chris Christie's cronies appointed to positions at the Port Authority of New York where they could take out political retribution.  North Jersey Media Group Inc. v. United States, ___ F.3d ___ (3d Cir. 2016), here.  As usual, the conspiracy count in the indictment named unindicted co-conspirators.  The prosecutors identified the unindicted co-conspirators to the defense in a letter that was not part of the public record.  The media wanted to know access to the list naming the unindicted co-conspirators.  The media intervened and  moved for disclosure.  One of the unindicted co-conspirators -- identified as "John Doe" -- intervened and objected to disclosure.  The district court ordered disclosure.  John Doe appealed.  The Court of Appeals reversed.

Essentially, the holding is that list of the names of the co-conspirators was disclosed by the prosecutors to the defense as part of the discovery obligations rather than as a bill of particulars that normally would be part of the public record.  Criminal discovery is generally not on the public record.  Hence, there is no right to access to that list at this stage of the case.  Of course, those names may "out" during some later public part of the criminal proceeding, but they are not publicly available at this stage.

The Court framed the issue as follows:
Although the appeal arises out of a matter of high public interest, the issue presented is basic and undramatic. We must decide whether the letter is more akin to a bill of  particulars or to a discovery disclosure in a criminal case. That distinction is dispositive, because the former is subject to a recognized right of public access while the latter has historically been kept from public view. See United States v. Smith, 776 F.2d 1104 (3d Cir. 1985). Because we conclude that the letter in question is a part of the general discovery process, it is not subject to any First Amendment or common law right of public access, and we will vacate the District Court’s order insofar as it requires the letter to be publicly disclosed. 
Then, after analysis, the Court concludes:
Public access to judicial documents and court proceedings is a respected tradition and important legal principle, but it has bounds. “[D]iscovery traditionally has been conducted by the parties in private and has not been publically available.” Wecht, 484 F.3d at 208. That is so even in a case affected by heightened public interest. The time may come, perhaps at trial, when the information in the Conspirator Letter ought to be made public, but that time is not here yet. Because neither the First Amendment right of access nor the common law right of access applies to the Conspirator Letter, we will vacate the District Court’s order insofar as it requires disclosure of the Letter.

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