United States v. Smith ( 1998 )

REVISED - March 20, 1998
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-30320
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
FRANK SMITH,
Defendant,
TAYLOR HENRY;
WDSU-TELEVISION INC.,
Movants-Appellees.
Appeal from the United States District Court
for the Eastern District of Louisiana
February 23, 1998
Before POLITZ, Chief Judge, HIGGINBOTHAM and DeMOSS, Circuit
Judges.
HIGGINBOTHAM, Circuit Judge:
The government appeals from a district court order quashing a
subpoena compelling the production at a criminal trial of a
videotape recording of an interview of the defendant by a local
television station. The district court held that the
newsreporters’ qualified privilege protected from disclosure to the
government of unaired portions of the interview conducted by Taylor
Henry on behalf of WDSU-Television, Inc. Finding that there is no
privilege under the circumstances of this case, we vacate the
district court’s order and remand for further proceedings.
I.
On March 21, 1996, two successive fires destroyed the
MacFrugal’s Regional Distribution Center in New Orleans, Louisiana.
After federal agents spoke with him, Frank Smith, an employee at
the center, became aware that he was under suspicion for setting
the fires. On March 27, 1996, Smith contacted WDSU-TV and
represented that he had information regarding the cause of the
fires. That day, Taylor Henry, a reporter with WDSU-TV, videotaped
his interview with Smith. During the interview, Smith accused
others of burning down the structure.
Later that same day, Smith met with New Orleans Fire
Department Superintendent Warren McDaniels. Superintendent
McDaniels, with Smith’s consent, tape recorded their conversation.
Smith informed Superintendent McDaniels that after the first fire
occurred, he overheard the manager and assistant manager of the
distribution center plotting to set the second blaze, at the
direction of the MacFrugal’s Corporate Office in California.
Superintendent McDaniels later provided his tape recording to the
government.
The next day, the Bureau of Alcohol, Tobacco, and Firearms
also interviewed Smith. Again, Smith repeated his story about
overhearing a plot to set the second fire, but the version of
events he gave to the BATF differed slightly from the one he
provided to Superintendent McDaniels.
On April 2, 1996, the government arrested Smith on charges
that he had set the first of the two fires. Following his arrest,
WDSU-TV televised a small portion of its interview with Smith. In
2
the ten second segment aired on television, Smith claimed that he
overheard the manager and assistant manager of the distribution
center plotting to set the second fire. Smith’s face was obscured
in the footage, but he was identified by name. On April 26, 1996,
a grand jury indicted Smith and charged him with setting the first
of the two fires at the distribution center. By this time, the
BATF had determined that an electrical overload had caused the
second fire, not arson. The BATF’s conclusion, of course, rendered
suspicious Smith’s assertions that he had overheard a plot to set
the second fire.
The government decided that it wanted as evidence the entire
WDSU-TV interview, hoping that it would contain more of Smith’s
allegedly false accusations. On April 23, 1996, the government
requested that WDSU-TV provide it with a copy of both the televised
and untelevised portions of the interview. WDSU-TV expressed a
general willingness to cooperate with the prosecution, but it
refused to turn over any footage to the government absent a
subpoena. The government then obtained a subpoena for the aired
portion of the interview, with which WDSU-TV complied.
To procure a subpoena for the untelevised portions of the
videotape, the Attorney General’s Guidelines required the
prosecutors first to obtain the Attorney General’s authorization.
On May 16, 1996, after receiving the necessary approval, the
government filed a motion asking the district court to issue a Rule
17(c) subpoena to Taylor Henry and WDSU-TV (collectively WDSU-TV
hereinafter) for the untelevised portion of their interview
3
videotape. Believing that the videotape might contain exculpatory
evidence, Smith later joined the government’s subpoena request.
WDSU-TV responded by moving to quash the subpoena on First
Amendment grounds, claiming a newsreporters’ privilege. On July 2,
1996, the district court issued an order granting WDSU-TV’s motion,
citing WDSU-TV’s First Amendment rights. On July 24, 1996, the
government filed notice of interlocutory appeal from the court’s
order. However, on October 22, 1996, the government agreed to a
request by WDSU-TV to dismiss its appeal without prejudice, so that
the district court could inspect the videotaped interview in
camera. After doing so, the district court entered a second order
on February 25, 1997, confirming its initial decision to quash the
subpoena. The court ruled that the government’s interest in the
interview was not sufficient to defeat WDSU-TV’s qualified
privilege, as the videotape contained evidence that was cumulative
of what the government already possessed. On March 21, 1997, the
government reinstated its original appeal. Although Smith
originally joined in the government’s subpoena request, he neither
joined nor opposed any of its appeals.
II.
Before reaching the merits of the district court’s order, we
must first consider our jurisdiction. WDSU-TV asserts that the
government may not appeal from the district court’s order quashing
the subpoena. It argues both that the order was not an appealable
final order under 28 U.S.C. § 1291 and that the government may not
avail itself of the appellate route set forth in 18 U.S.C. § 3731.
4
We need not reach WDSU-TV’s § 1291 argument, however, because we
find jurisdiction to entertain this appeal pursuant to § 3731.
Title 18, U.S.C. § 3731, permits the United States to appeal
orders “suppressing or excluding” evidence in criminal cases so
long as the relevant United States Attorney “certifies to the
district court that the appeal is not taken for purpose of delay
and that the evidence is substantial proof of a fact material in
the proceeding.” 18 U.S.C. § 3731. The government must take its
appeal under § 3731 within thirty days of the district court order
being challenged. See id.
We have little difficulty concluding that § 3731 affords the
government a basis for an appeal. Section 3731 provides the
government with as broad a right to appeal as the Constitution will
permit. See United States v. Wilson, 420 U.S. 332, 337 (1975).
Here, the district court’s order quashing the WDSU-TV subpoena is
a ruling that effectively “suppress[es] or exclud[es] evidence . .
. in a criminal proceeding,” as the district court denied the
government the videotaped evidence on the basis of privilege.
Furthermore, Smith’s allegedly false allegations contained in the
videotape make it “substantial proof of a fact material in the
proceeding.” Finally, the government’s appeal certainly was not
brought for “the purpose of delay,” as the defendant has in no way
opposed the appeal or complained about delay.
WDSU-TV, however, contends that the government’s appeal under
§ 3731 was untimely. The district court entered its first quashing
order on July 2, 1996. Pursuant to § 3731, the government
5
certified its appeal from that order, but it did not do so until
October 21, 1996, as it was confused about the statutory basis for
its appeal. Upon WDSU-TV’s request, the government voluntarily
dismissed its first appeal without prejudice to its reinstatement,
to allow the district court to review the videotaped evidence in
camera. After the district court again quashed the subpoena
following the in camera inspection, the government reinstated its
original appeal. However, it did not file a new certificate.
Hence, WDSU-TV claims that the government is now barred from
appealing under § 3731, as the government missed the thirty-day
certification deadline following both court orders.
As we have previously stressed, § 3731’s timing requirements
are not jurisdictional; we may still entertain § 3731 appeals
certified in an untimely manner. See United States v. Crumpler,
507 F.2d 624, 624 (5th Cir. 1975). Whether the government met the
thirty-day time limit is relevant only in considering the
“equities” of its appeal. See United States v. Miller, 952 F.2d
866, 875 (5th Cir.), cert. denied, 505 U.S. 1220 (1992). We find
that the equities here all lie in the government’s favor.
First, the government effectively complied with the thirty-day
time limit in its appeal from the second district court order. As
the statute instructs, before appealing the first time the
government considered whether its appeal would delay justice and
whether it sought substantial proof of a material fact. Although
the district court later ruled that the videotaped evidence was
cumulative, the government in its reinstated appeal need not have
6
reconsidered its appellate strategy in light of the district
court’s decision. Rather, the government was entitled to maintain
its position that it was seeking important evidence for non-
dilatory purposes. The reinstated appeal was filed within thirty
days of the second district court order. Thus, we view the
government’s reinstated appeal as incorporating the proper, but
untimely, § 3731 certification from its first appeal.
Second, the purpose of § 3731’s thirty-day appellate deadline
is to prevent the government from denying a speedy trial to a
defendant by needlessly appealing evidentiary rulings. See United
States v. Herman, 544 F.2d 791, 794 (5th Cir. 1977). The defendant
therefore is the person that might be harmed by the government’s
stalling tactics, not a third party in possession of evidence.
Here, the defendant himself joined in the government’s subpoena for
the videotape and has not opposed this appeal, so presumably he is
not concerned about delay.
Thus, the equities in this appeal favor the government. The
government effectively complied with the time limit in the statute.
To the extent that the government did not follow the precise letter
of the law, the defendant, the person meant to be protected by §
3731, suffered no harm. Accordingly, we find it appropriate to
exercise appellate jurisdiction under 18 U.S.C. § 3731.
III.
The district court held that reporters possess a qualified
privilege not to divulge nonconfidential information in criminal
cases. It based this conclusion on a reading of our major
7
pronouncement on the newsreporters’ privilege, Miller v.
Transamerican Press, 621 F.2d 721, 725 (5th Cir. 1980), cert.
denied, 450 U.S. 1041 (1981), and on precedents from other
circuits. Applying the privilege after an in camera inspection of
the evidence, the court determined that the government was not
entitled to the videotape outtakes, as they were cumulative of what
the government already had in its possession. We find, however,
that the district court erred in granting WDSU-TV a privilege under
these circumstances.
Any discussion of the newsreporters’ privilege must start with
an examination of Branzburg v. Hayes, 408 U.S. 665 (1972), the
Supreme Court’s most detailed exposition on the subject. In
Branzburg, various grand juries subpoenaed newsreporters and
ordered them to testify as to the identity of the confidential
sources for their stories. The newsreporters refused to comply
with the subpoenas, citing the First Amendment. The Supreme Court,
however, rejected their freedom-of-the-press argument, concluding
that newsreporters have the same obligation to testify before a
grand jury as any other citizen. See id. at 690. Although the
Court recognized that it would be a burden, albeit an “uncertain”
one, for newsreporters to reveal their sources, it held that the
public’s interest in law enforcement outweighed the concerns of the
press. See id. at 690-91. Consequently, the Court explicitly
rejected a qualified newsreporters’ privilege shielding
confidential source information from grand juries. See id. at 702-
08. The Court instructed that the needs of the press are not to be
8
weighed against the needs of the government in considering grand
jury subpoenas. See id. at 705-06.
Although the opinion of the Branzburg Court was joined by five
justices, one of those five, Justice Powell, added a brief
concurrence. For this reason, we have previously construed
Branzburg as a plurality opinion. See In re Selcraig, 705 F.2d
789, 793 (5th Cir. 1983) (analyzing Branzburg). In his concurring
opinion, Justice Powell stated:
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.
Branzburg, 408 U.S. at 710 (Powell, J., concurring).
Although some courts have taken from Justice Powell’s
concurrence a mandate to construct a broad, qualified
newsreporters’ privilege in criminal cases, see, e.g., United
States v. LaRouche Campaign, 841 F.2d 1176, 1182 (1st Cir. 1988);
United States v. Cuthbertson, 630 F.2d 139, 147 (3d Cir. 1980),
cert. denied, 449 U.S. 1126 (1981), we decline to do so. Justice
Powell’s separate writing only emphasizes that at a certain point,
the First Amendment must protect the press from government
intrusion. To Justice Powell, however, that point occurs only when
the “grand jury investigation is not being conducted in good
faith.” Branzburg, 408 U.S. at 710 (Powell, J., concurring).
Justice Powell reasoned that “if the newsman is called upon to give
information bearing only a remote and tenuous relationship to the
9
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.” Id. Justice Powell
had in mind the “harassment of newsmen.” Id. at 709; see also In re
Grand Jury Proceedings, 5 F.3d 397, 401 (9th Cir. 1993) (reading
Branzburg and concluding that Justice Powell meant only to protect
newsreporters from intentional harassment by the government), cert.
denied, 510 U.S. 1041 (1994); In re Grand Jury Proceedings, 810
F.2d 580, 587-88 (6th Cir. 1987) (same). In the end, Justice
Powell’s concurrence highlighted a limit on the government’s
subpoena power also recognized by the plurality opinion. See
Branzburg, 408 U.S. at 699-700 (noting that the Court was not
reaching the question of an abusive grand jury investigation). It
did not argue for a general qualified privilege for newsreporters
in criminal cases.1 A single subpoena issued only after considered
decision by the Attorney General of the United States to compel
production of evidence at a federal trial of a multicount felony
1
Subsequent statements by the Supreme Court and individual
justices confirm this understanding of Branzburg. See University
of Pa. v. EEOC, 493 U.S. 182, 201 (1990) (“In Branzburg, the Court
rejected the notion that under the First Amendment a reporter could
not be required to appear or to testify as to information obtained
in confidence without a special showing that the reporter’s
testimony was necessary.”); New York Times, Co. v. Jascalevich, 439
U.S. 1301, 1302 (1978) (White, J., in chambers) (denying stay)
(“There is no present authority in this Court that a newsman need
not produce documents material to the prosecution or defense of a
criminal case, or that the obligation to obey an otherwise valid
subpoena served on a newsman is conditioned upon the showing of
special circumstances.”) (citation to Branzburg omitted).
10
indictment is no harassment. Calling it such presupposes a clear
privilege. On the facts, that is not this case.
WDSU-TV is not here seeking a privilege against disclosing
confidential source information, which the Court rejected in
Branzburg. Rather, it argues that journalists deserve a qualified
privilege in their nonconfidential work product, so as to protect
the media as an institution. According to WDSU-TV, such a
privilege would be akin to the attorney work-product privilege,
designed to promote effective representation of clients, and the
executive privilege, intended to aid the operation of the executive
branch. WDSU-TV argues that it deserves a similar, “institutional”
privilege, because even the disclosure of nonconfidential
information to the government can unduly burden its First Amendment
rights. It contends that absent a privilege, prosecutors will
“‘annex’ the news media as ‘an investigative arm of government.’”
Branzburg, 408 U.S. at 709 (Powell, J., concurring). On this
theory, future news-sources will be wary of the media’s close
connection to the government, so they will hesitate before
approaching reporters, even for on-the-record interviews. In
addition, WDSU-TV argues that without a privilege, the media will
be swamped with criminal discovery requests. Having to respond to
these requests would hamper the media’s ability to provide the
public with newsworthy information. As a result, contends WDSU-TV,
rather than comply with future demands for evidence, the media
might instead simply destroy its work product once it was printed
or aired, thereby depriving itself of valuable archival material.
11
Alternatively, WDSU-TV fears that the press might hesitate before
reporting on important matters that could get it enmeshed in
criminal litigation.2
We find little support in either the plurality or the
concurring opinions of Branzburg for the sort of privilege that
WDSU-TV asks us to recognize.3 The newsreporters in Branzburg
argued compellingly as to how forcing them to divulge confidential
source information might ruin their ability to procure news in the
future. It is not difficult to imagine why confidential sources
would be reluctant to approach the media if they knew that the
press could be compelled to disclose their identities. Despite the
newsreporters’ strong First Amendment arguments, however, the
Branzburg Court rejected their call for a privilege. Here, on the
other hand, the danger that sources will dry up is less
substantial. WDSU-TV seeks to protect only nonconfidential
2
Several circuits have considered similar arguments and
extended the newsreporters’ privilege to nonconfidential work
product, either in civil or criminal cases. See Shoen v. Shoen, 5
F.3d 1289, 1294-95 (9th Cir. 1993) (civil case); LaRouche Campaign,
841 F.2d at 1182 (criminal case); von Bulow v. von Bulow, 811 F.2d
136, 143 (2d Cir.) (implying applicability in civil cases), cert.
denied, 481 U.S. 1015 (1987); Cuthbertson, 630 F.2d at 147(criminal case). On the other hand, at least one circuit has
tacitly rejected a reporter’s privilege in a criminal case where
the information sought was nonconfidential. See In re Shain, 978
F.2d 850, 853 (4th Cir. 1992).
3
In reaching this conclusion, we consider only the interests
of the government in promoting effective law enforcement. Smith
also may have a Sixth Amendment interest in the outtakes to permit
him to conduct an effective defense. Because Smith did not join in
the government’s appeal, however, the government cannot assert and
we cannot rely upon Smith’s rights. See United States v. Fortna,
796 F.2d 724, 732 (5th Cir.) (holding that Sixth Amendment rights
of a defendant cannot be asserted vicariously), cert. denied, 479
U.S. 950 (1986).
12
information obtained from a person who wanted it aired when he gave
it and joined the government in seeking its production at trial.
It is not the “rights” of the informant that are here at issue.
Rather it is the rights of the newsmen. So it is that the press
argues that there is an in terrorem effect. Relatedly, the press
argues that the burdens will grow if this discovery is ordered
because it will make the press an arm of the prosecution. Yet
there is little reason to fear that on-the-record sources will
avoid the press simply because the media might turn over
nonconfidential statements to the government. Presumably, on-the-
record sources expect beforehand that the government, along with
the rest of the public, will view their nonconfidential statements
when they are aired by the media. WDSU-TV’s fears that
nonconfidential sources will shy away from the media because of its
unholy alliance with the government are speculative at best.
The other policy rationales advanced by WDSU-TV for a
nonconfidential information privilege are similarly unpersuasive.
Responding to discovery may well take valuable time, decreasing to
that extent resources available for newsreporting. Yet in the
immediate sense, the press here is not differently situated from
any other business that may find itself possessing evidence
relevant to a criminal trial. It has a relevant and protectible
interest in not being unduly burdened, as, for example, by overly
broad subpoenas for large amounts of data of dubious relevance.
But this burden is case specific. Not surprisingly, the Supreme
Court has consistently refused to exempt the media from the reach
13
of generally-applicable laws, simply because those laws might
indirectly burden its newsgathering function. See, e.g., Oklahoma
Press Publ’g Co. v. Walling, 327 U.S. 186, 192-94 (1946) (applying
Fair Labor Standards Act to the media, over First Amendment
objection); Associated Press v. United States, 326 U.S. 1, 7 (1945)
(applying Sherman Act to the media, over First Amendment
objection); Associated Press v. NLRB, 301 U.S. 103, 132-33 (1937)
(applying National Labor Relations Act to the media, over First
Amendment objection); Grosjean v. American Press Co., 297 U.S. 233,
250 (1936) (holding that the media is subject to nondiscriminatory
forms of taxation). We are pointed to no empirical basis for
assertions that the media will avoid important stories or destroy
its archives in response to rare requests for criminal discovery.
Indeed, in holding that the press is not exempt from government
searches and seizures, the Supreme Court considered and rejected
policy arguments parallel to those asserted here by WDSU-TV. See
Zurcher v. Stanford Daily, 436 U.S. 547, 563-67 (1978).
WDSU-TV, however, attempts to escape from the balance
Branzburg struck between the public’s interest in effective law
enforcement and the press’s First Amendment rights by arguing that
the Branzburg decision only applies to grand jury proceedings, not
the trial setting we have before us now. See, e.g., Riley v. City
of Chester, 612 F.2d 708, 714 (3d Cir. 1979) (limiting Branzburg to
grand jury context). Although the district court agreed with WDSU-
TV, we find little persuasive force in this distinction. Surely
the public has as great an interest in convicting its criminals as
14
it does in indicting them. As the Supreme Court has stated in the
context of the executive privilege: “The right to the production of
all evidence at a criminal trial . . . has constitutional
dimensions. . . . [T]he allowance of the privilege to withhold
evidence that is demonstrably relevant in a criminal trial would
cut deeply into the guarantee of due process of the law and gravely
impair the basic function of the courts.” United States v. Nixon,
418 U.S. 683, 711-12 (1974). Moreover, the Branzburg Court gave no
indication that it meant to limit its holding to grand jury
subpoenas:
On the records now before us, we perceive no basis for holding
that the public interest in law enforcement and in ensuring
effective grand jury proceedings is insufficient to override
the consequential, but uncertain, burden on news gathering
that is said to result from insisting that reporters, like
other citizens, respond to relevant questions put to them in
the course of a valid grand jury investigation or criminal
trial.
Branzburg, 408 U.S. at 690-91 (emphasis added).
Branzburg will protect the press if the government attempts to
harass it. Short of such harassment, the media must bear the same
burden of producing evidence of criminal wrongdoing as any other
citizen. As the Supreme Court has admonished, evidentiary
privileges are generally disfavored in the law. See Herbert v.
Lando, 441 U.S. 153, 175 (1979). We see no reason to create a new
one here and compelling reasons not to do so.
IV.
Thus, we find that Branzburg precludes the form of privilege
recognized by the district court and urged on us by WDSU-TV.
Nevertheless, WDSU-TV contends that our panel need not consider the
15
merits of a new privilege, for we are bound to apply one already
established by our court in Miller v. Transamerican Press, Inc.,
621 F.2d 721 (5th Cir. 1980), cert. denied, 450 U.S. 1041 (1981).
In Miller, we held that in civil libel suits, reporters possess a
qualified privilege not to disclose the identity of confidential
informants. To defeat this privilege, the discoverer must show
that: 1) the information is relevant; 2) it cannot be obtained by
alternative means; and 3) there is a compelling interest in the
information. See id. at 726. Miller concluded that this privilege
was justified because the balance of interests favored the press in
civil libel cases, unlike the grand jury proceedings considered in
Branzburg. See id. at 725. In In re Selcraig, 705 F.2d 789, 792
(5th Cir. 1983), we iterated the existence of the newsreporters’
privilege. We held in Selcraig that “the first amendment shields
a reporter from being required to disclose the identity of persons
who have imparted information to him in confidence,” but that this
privilege can be overcome in civil libel cases. Id. at 792.4
We disagree with WDSU-TV that Miller controls this case, as
the Miller privilege differs from the privilege sought here in two
critical respects. First, Miller was a civil matter, while we have
before us a criminal prosecution. The Branzburg Court emphasized
that the public’s interest in effective law enforcement outweighed
the press’s entitlement to a First Amendment privilege against the
4
Other courts have agreed with ours and recognized a qualified
reporter’s privilege in civil cases. See, e.g., Zerilli v. Smith,
656 F.2d 705, 711-12 (D.C. Cir. 1981); Silkwood v. Kerr-McGee
Corp., 563 F.2d 433, 437 (10th Cir. 1977).
16
disclosure of information. See Branzburg, 408 U.S. at 690.
Because the public has much less of an interest in the outcome of
civil litigation, in civil cases like Miller the interests of the
press may weigh far more heavily in favor of some sort of
privilege. Cf. Zerilli v. Smith, 656 F.2d 705, 711 (D.C. Cir.
1981) (“Although Branzburg may limit the scope of the reporter’s
First Amendment privilege in criminal proceedings, this circuit has
previously held that in civil cases, where the public interest in
effective criminal law enforcement is absent, that case is not
controlling.”).
The second important difference between this case and Miller
relates to confidentiality. As we have previously noted in the
context of testimonial privileges, the existence of a confidential
relationship that the law should foster is critical to the
establishment of a privilege. See ACLU v. Finch, 638 F.2d 1336,
1344 (5th Cir. Unit A Mar. 1981). Both Miller and Selcraig
recognized privileges meant to protect newsreporters from
unnecessarily revealing the identities of confidential sources.
Here, however, the confidentiality issue is absent. As we have
observed, WDSU-TV interviewed Smith “on the record,” so there was
no expectation between Smith and the television station that any of
the information he provided was to be kept in confidence. Indeed,
the lower court was faced with the polar opposite of
confidentiality: WDSU-TV refused to produce to Smith his own
statements given to the television station on the record. We have
never recognized a privilege for reporters not to reveal
17
nonconfidential information. In fact, this court has theorized
that confidentiality is a prerequisite for the newsreporters’
privilege. See Pressey v. Patterson, 898 F.2d 1018, 1022 n.4 (5th
Cir. 1990) (“Although the question is not directly before us, we
have strong doubts whether the trial judge was correct in enforcing
this privilege insofar as these tapes were concerned. As far as we
can discern from the record, Resier was a divulged source, not a
confidential source.”).
We conclude that newsreporters enjoy no qualified privilege
not to disclose nonconfidential information in criminal cases.
Therefore, we pay no heed to the district court’s determination,
both before and after its in camera inspection of the videotape,
that the requested evidence was cumulative of the defendant’s
statements already possessed by the government. As WDSU-TV enjoys
no privilege here, the district court need never have conducted an
in camera inspection. Likewise, the district court’s pre-
inspection conclusion that the videotape outtakes were cumulative
cannot be disentangled from its rulings regarding privilege.
Regardless, the district court’s orders reflect a balancing of
relevance against a found protected interest under the First
Amendment. There is no finding that meeting the calls of the
subpoena will be burdensome. Rather, the district court concluded
that the government lacked sufficient need. However, absent a
privilege, the government’s burden in requesting the subpoena was
to demonstrate that the evidence sought was relevant, that it was
admissible, and that it had been identified with adequate
18
specificity. See United States v. Arditti, 955 F.2d 331, 345 (5th
Cir.), cert. denied, 506 U.S. 998 (1992). Multiple contradictory
stories told by a defendant can demonstrate a consciousness of
guilt. See, e.g., United States v. Simone, 205 F.2d 480, 482 (2d
Cir. 1953) (permitting inference of guilt from defendants’
contradictory statements given in four interviews with government
agents). The subpoenaed evidence was relevant and not cumulative.
Accordingly, the government satisfied its Rule 17(c) burden and is
entitled to the videotapes.
V.
The order of the district court quashing the subpoena of WDSU-
TV and Taylor Henry is vacated and this case is remanded for
further proceedings.
VACATED AND REMANDED.
19