North Jersey Media Group Inc. v. United States

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 16-2431
_____________
NORTH JERSEY MEDIA GROUP INC, Publishers of
Northjersey.com as well as The Record and The Herald
News; BLOOMBERG LP, The owner and operator of
Bloomberg News; NBCUNIVERSAL MEDIA LLC, doing
business as WNBC TV CHANNEL 4; THE NEW YORK
TIMES COMPANY; NEW JERSEY ADVANCED MEDIA,
Publishers of NJ.com; DOW JONES & COMPANY, INC.,
The publisher of the Wall Street Journal; THE
ASSOCIATED PRESS; PUBLIC MEDIA NJ, INC, doing
business as NJTV; NEW YORK PUBLIC RADIO;
AMERICAN BROADCASTING COMPANIES, INC.;
PHILADELPHIA MEDIA NETWORK, PBC; POLITICO
v.
UNITED STATES OF AMERICA; WILLIAM E. BARONI,
JR.; BRIDGET ANNE KELLY; THE PORT AUTHORITY
OF NEW YORK AND NEW JERSEY
JOHN DOE,
Appellant
_______________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 2-16-cv-267)
District Judge: Hon. Susan D. Wigenton
_______________
Argued
June 6, 2016
Before: AMBRO, JORDAN, and SCIRICA, Circuit Judges.
(Filed )
_______________
Jenny R. Kramer [ARGUED]
Chadbourne & Parke
1301 Avenue of the Americas
New York, NY 10019
Counsel for Intervenor-Appellant, John Doe
Bruce S. Rosen [ARGUED]
McCusker Anselmi Rosen & Carvelli
210 Park Avenue – Ste. 301
Florham Park, NJ 07932
Counsel for Appellees, North Jersey Media Group Inc.,
Bloomberg LP, NBC Universal Media LLC,
DBA WNBC TV Ch 4, New York Times Co.,
Dow Jones & Co. Inc., Associated Press,
Public Media NJ Inc., DBA NJTV, New York
Public Radio, American Broadcasting Co. Inc.,
Politico,and Philadelphia Media Network PBC
Lee M. Cortes, Jr.
Mark E. Coyne
David W. Feder
Paul J. Fishman [ARGUED]
J. Fortier Imbert
Vikas Khanna
Office of United States Attorney
970 Broad Street – Rm. 700
Newark, NJ 07102
Counsel for Appellee, United States of America
Michael A. Baldassare
Dillon H. Malar
Jennifer Mara
Badlassare & Mara
570 Broad St. – Ste. 900
Newark, NJ 07102
Counsel for Defendant, William E. Baroni, Jr.
Michael D. Critchley
Critchley Kinum & Vazquez
75 Livingston Avenue – 3rd Fl.
Roseland, NJ 07068
Counsel for Defendant, Bridget Anne Kelly
David R. Kromm
Port Authority of New York & New Jersey
4 World Trade Center
150 Greenwich St.
New York, NY 10007
Counsel for Defendant, Port Authority
of New York and New Jersey
_______________
OPINION OF THE COURT
_______________
JORDAN, Circuit Judge.
For five days in September 2013, lane closures on the
George Washington Bridge caused extraordinary traffic jams
in Fort Lee, New Jersey. The closures were allegedly
orchestrated as revenge against the Mayor of Fort Lee for his
refusal to endorse New Jersey Governor Christopher J.
Christie in the Governor’s bid for reelection. Political and
legal consequences of the supposed retaliation have been
extensively covered in local and national media, and, as if by
some public reflex, the scandal has acquired a name with a “-
gate” suffix, being widely known as “Bridgegate.”
This appeal concerns the efforts of a “John Doe” to
avoid being publicly identified as an unindicted co-
conspirator in the criminal case that federal prosecutors have
brought against certain New Jersey government officials
involved in Bridgegate. A consortium of media groups took
legal steps to force the disclosure of a letter, authored by one
of the prosecutors, that purportedly identifies unindicted co-
conspirators, and the District Court ordered the letter to be
disclosed. Doe intervened and sought to block public access
to the letter. The Court denied his request and again ordered
that it be disclosed. Doe appealed, and we granted an
emergency motion for a stay and for expedited consideration
of this appeal.
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.
I. BACKGROUND
On April 23, 2015, a grand jury returned a nine-count
indictment against William E. Baroni Jr. and Bridget Anne
Kelly based on the Bridgegate political payback scheme. See
United States v. Baroni, No. 15-cr-193 (D.N.J. filed Apr. 23,
2015). 1 With the exception of Count 9, the indictment alleges
that Baroni and Kelly committed their offenses with
unidentified “others.” The only other individual identified by
name in that indictment is David Wildstein, who has already
pled guilty in a separate criminal case to two charges arising
from Bridgegate. See United States v. Wildstein, No. 15-cr-
209 (D.N.J. filed May 1, 2015). Wildstein is awaiting
sentencing. The charges against Baroni and Kelly are still
pending.
1
The indictment charged Baroni and Kelly with
conspiracy to misapply and the misapplication of government
property (Counts 1 and 2), conspiracy to commit and the
commission of wire fraud (Counts 3 through 7), and
conspiracy against and the deprivation of civil rights (Counts
8 and 9).
Following their indictment, Baroni and Kelly filed
omnibus motions for discovery of certain information. 2 They
also filed motions for a bill of particulars, 3 seeking the
identity of the unindicted co-conspirators referenced as
“others” in the indictment. Specifically, Kelly asked that the
government be ordered to provide “the identities of any and
all undisclosed or unindicted co-conspirators, aiders and
abettors, and/or any other individuals involved in any and all
alleged criminal activity.” (A-107.) Baroni likewise sought
the identity “of all unindicted co-conspirators,” as well as
“the names of the ‘others’ referred to in the Indictment.” (A-
115.)
The government opposed those requests. It argued that
the motions for a bill of particulars should be denied because
voluminous discovery and the detailed indictment had already
given the defendants more than enough information about the
criminal charges to allow them to prepare a defense. In the
government’s view, the defendants were “ask[ing] the United
2
Discovery in the Baroni and Kelly criminal matter is
subject to a protective order. The protective order applies to
“confidential discovery materials,” which includes (among
other things) “information of a personal nature.” Order
Granting Motion for Protective Order at 1, United States v.
Baroni, No. 15-cr-193 (D.N.J. Jul. 7, 2015), ECF No. 22.
3
A “bill of particulars” is “[a] formal, detailed
statement of the claims or charges brought by a plaintiff or a
prosecutor, usu[ally] filed in response to the defendant’s
request for a more specific complaint.” Black’s Law
Dictionary (10th ed. 2014).
States to reveal much of its trial strategy and prematurely
commit to specific evidentiary proofs.” (A-136.)
Nevertheless, the government said that it would, “in a
document to be filed under seal, identify any other individual
about whom [it] has sufficient evidence to designate as
having joined the conspiracy.” (A-141.)
On January 11, 2016, as promised, the government
produced to the defendants the “Conspirator Letter,”
revealing the names of any individuals the government
regarded as having joined the conspiracy. At the same time,
while it did not make a formal motion to seal the Letter, the
government sent a copy to the chambers of the judge
presiding in the case and “ask[ed] the Court to permanently
shield its disclosure from public view given the ‘sensitive
nature’ of the information contained therein.” (A-148.) 4 The
Letter was not, it seems, ever filed with the Clerk of the
District Court. The day after submission of the Conspirator
Letter, Baroni objected to its being sealed and the manner in
which the government had submitted it to the Court.
The government filed a response to Baroni’s objection.
In requesting that the Conspirator Letter be kept under seal,
the government cited a set of Department of Justice
instructions called the “U.S. Attorney’s Manual,” which
directs prosecutors to “avoid unnecessary public references to
wrongdoing by uncharged third-parties.” (A-150.) While it
thus justified maintaining the Letter’s secrecy, the
government at the same time recognized that the Court might
4
This description is taken from a letter filed by
Baroni’s attorney on January 12, 2016, objecting to the
government’s request to the Court.
later be required to rule on a request for public disclosure.
“As is always the case,” the government said, “if Baroni,
Kelly, or the [g]overnment articulates a sufficient reason for
unsealing [the Letter] at any point in the prosecution, the
Court then will address that issue.” (A-151.) The
government summed up its position by saying, “[o]ur request
that the Court maintain the [g]overnment’s letter and its
contents under seal is consistent with departmental guidance,
decisional law, and the common sense proposition that
publicizing allegations of wrongdoing by uncharged third
parties should be avoided.” (A-152.)
The District Court never issued an order directing the
government to file a bill of particulars. After the Conspirator
Letter was provided to the defense, a hearing was held to
address any lingering issues from the omnibus motions.
Baroni’s counsel indicated that his request for information
about unindicted co-conspirators was “still alive, but because
of other motions that are pending, [he could not] talk about it
[at that time].” (A-166.) The Court noted that it did not need
to rule on any motions “unless [the parties] ha[d] an issue
going forward.” (A-165.) No further discussion was
dedicated to the subject. Immediately after the hearing, the
District Court issued an order granting additional relief on the
defendants’ various motions, but it also ordered “that the
remainder of [d]efendants’ Discovery Motions” – which
included the motions for a bill of particulars – “are
DISMISSED AS MOOT as per counsels’ representations
and the discussion on the record.” (A-184 (original
emphasis).)
Meanwhile, “[s]hortly after the [g]overnment
represented that it would produce the Conspirator Letter to
the defendants, the media began reporting about” its
existence. (Opening Br. at 10.) On January 13, 2016 – two
days after the government gave the Letter to the defendants –
a consortium of news organizations (collectively, “the
Media”) 5 filed a motion to intervene in the criminal case and
for access to the Letter. 6 Among other things, the Media
sought “[t]he [g]overnment’s response to a Motion for a Bill
of Particulars, including a list of unindicted co-conspirators
emailed to the Court and Defense counsel on January 11,
2016.” Notice of Motion to Intervene and for Other Relief at
2, N. Jersey Media Grp. Inc. v. United States, No. 16-cv-267
(D.N.J. Jan. 13, 2016), ECF No. 1.
The government, consistent with its request that the
Letter be maintained under seal, did not oppose the Media’s
intervention but did oppose any disclosure of the Conspirator
Letter, arguing that “public disclosure of the information
5
Those organizations include: North Jersey Media
Group Inc., publishers of Northjersey.com as well as The
Record and The Herald News; Bloomberg L.P., the owner
and operator of Bloomberg News; NBCUniversal Media,
LLC d/b/a WNBC-TV Channel 4; The New York Times
Company; New Jersey Advance Media, publishers of nj.com;
Dow Jones & Company, Inc., the publisher of The Wall
Street Journal; the Associated Press; Public Media NJ, Inc.
d/b/a NJTV; New York Public Radio; American Broadcasting
Companies, Inc.; Philadelphia Media network; PBC; and the
website Politico.
6
The Media’s motion to intervene in the criminal case
was then assigned a separate civil action number, under
which the case has proceeded since that time.
contained in the [C]onspirator Letter is unwarranted at this
phase of the prosecution.” (A-187.) It recognized that
“evidence relating to even uncharged coconspirators may take
on significance at a conspiracy trial.” (A-188.) For example,
the identity of unindicted co-conspirators could become
relevant at trial “if the [g]overnment moves for the admission
of an out-of-court statement made in furtherance of the
conspiracy by an unindicted coconspirator under Federal Rule
of Evidence 801(d)(2)(E).” (A-188.) But, absent the need for
such a disclosure of unindicted co-conspirators, the
government asserted that the Conspirator Letter “has no
evidentiary value” (A-188), and that “Department of Justice
policy directs federal prosecutors to avoid unnecessary public
references to wrongdoing by uncharged third parties.” (A-
189.) According to the government, the Letter was
“communicated to [d]efendants only for purposes of trial
preparation” and, unlike a formal bill of particulars, had “no
adjudicatory significance at this point.” (A-193.) In
recognition of the rights of the unindicted co-conspirators
themselves, the government emphasized that they are not
charged and so “have no opportunity to challenge that
potentially injurious designation in court.” (A-189.)
On May 10, 2016, the District Court granted the
Media’s motion and ordered the disclosure of the Conspirator
Letter. See N. Jersey Media Grp. v. United States, No. 16-cv-
267, 2016 WL 2660104 (D.N.J. May 10, 2016). It reasoned
that the Letter was equivalent to a bill of particulars, to which
a right of access has historically attached. Id. at *2. The
Court then weighed the privacy interests of the unindicted co-
conspirators against the public interest in disclosure and
concluded that the balance weighed in favor of disclosure. Id.
at *3. As to the privacy interests, the Court emphasized that
“[t]he underlying events that gave rise to the Indictment have
been extensively covered by the media, such that even
persons tangentially involved have already been identified
and exposed in the press.” Id. Also, said the Court,
individuals “thus far identified” as being involved in
Bridgegate have been public employees or appointed
officials, so their privacy interests are significantly limited.
Id. The Court ordered that the Conspirator Letter be
disclosed by noon on May 13, 2016.
Then John Doe intervened. 7 He says that, up to that
point, he had “relied on the [g]overnment and its obligation
under the [U.S. Attorney’s Manual] to vindicate his
constitutional and reputational rights against being publicly
branded a criminal without a forum to contest those
accusations.” (Opening Br. at 15.) But, after the May 10th
order that the Letter be disclosed, he believed the government
“was no longer adequately representing his rights, especially
in light of its apparent intention not to appeal the court’s
order.” (Id.) Doe thus filed his emergency motion to
intervene, to proceed anonymously, and to stay the release of
the Conspirator Letter. In his motion, he made the same
arguments he makes now: that no right of access requires
7
Doe says that he “has not seen and does not have
access to the Conspirator Letter.” (Opening Br. at 16 n.5.)
The government has clarified that Doe’s name does, in fact,
appear in the letter: “John Doe has standing for purposes of
this appeal because the [g]overnment’s letter to defense
counsel in the criminal case identifies him as an unindicted
coconspirator.” (United States’s Second Letter re: Oral
Argument, filed May 20, 2016, at 1.)
disclosure of the Conspirator Letter, and that identifying him
as a co-conspirator would violate his due process rights.
The next day, May 13, 2016, the District Court granted
Doe’s motion to intervene and his request to proceed
anonymously, but denied his motion for a stay. See N. Jersey
Media Grp., Inc. v. United States, No. 16-cv-267, 2016 WL
2771805 (D.N.J. May 13, 2016). It concluded that he had not
shown any likelihood of success on the merits of his request
that the Conspirator Letter remain sealed. According to the
Court, “the Conspirator Letter was submitted … in response
to [d]efendants’ motions for bills of particulars.” (A-34.) A
copy was sent to the Court, but “[t]he document was never
labeled a courtesy copy, nor has the [g]overnment included
th[e] Court in other exchanges of mere discovery material.”
(Id.) As a consequence, the District Court “deemed the
Conspirator Letter a judicial record … .” (Id.) As to Doe’s
due process argument, the Court held that any due process
interest was satisfied because Doe “ha[d] been heard by th[e]
Court” in his request for nondisclosure. (Id.)
Doe promptly filed a notice of appeal from the May 10
and May 13 orders. We granted his emergency motion for a
stay of the District Court’s order pending appeal and for
expedited consideration of his case.
II. DISCUSSION 8
The Media has asserted a right of access to the
Conspirator Letter under both the First Amendment to the
United States Constitution and under common law. Doe and
the government say that, on this record, there is no such
right. 9
8
The District Court had jurisdiction under 28 U.S.C.
§ 1331; we exercise jurisdiction pursuant to 28 U.S.C.
§ 1291.
9
The Media also make two “waiver” arguments,
which warrant little comment. First, they claim that “Doe is
barred from arguing for the first time on appeal that this
matter is not governed by this Court’s decision in Smith”
because he did not raise that argument below. (Media
Answering Br. at 46.) In fact, Doe made that exact argument
below. He first argued that “the Conspirator Letter is not a
bill of particulars or any other judicial filing to which the
public’s presumptive right of access attaches; rather, it is
nothing more than a discovery letter that should have been
sent to the criminal defendants without being filed.” (District
Ct. Docket, No. 37-1 at 9 (original emphasis).) Directly after
that sentence, Doe used a “compare” signal to cite Smith, a
case described in greater detail herein. Doe emphasized that
the district court in that case, unlike here, had “granted the
criminal defendants motion for a bill of particulars” and the
responsive document had been filed with the Clerk of that
Court. (Id.) In both distinguishing Smith and arguing that the
Conspirator Letter is a discovery response rather than a bill of
particulars, Doe raised the precise issue we now address.
Second, the Media argues that “the [g]overnment should be
A. The First Amendment Right of Access 10
In Richmond Newspapers, Inc. v. Virginia, the
Supreme Court held that the First Amendment guarantees the
public, and thus the press, a right of access to criminal
proceedings. 448 U.S. 555 (1980). That right of access can
include documents involved in the proceedings. See Smith,
776 F.2d at 1111-12. Assessing the right of access “requires
estopped from adopting new arguments it failed to raise
below.” (Media Sur-Reply Br. at 1.) Any such arguments –
even assuming that the government did not advance them
below and that estoppel might apply – are properly before us
anyway, since Doe has advanced them consistently
throughout this litigation.
10
In general, decisions to seal documents related to
judicial proceedings are subject to review for an abuse of
discretion. Publicker Indus., Inc. v. Cohen, 733 F.2d 1059,
1071 (3d Cir. 1984). In the First Amendment context,
however, a right of access claim is subject to “substantially
broader review.” In re Capital Cities/ABC, Inc.’s Application
for Access to Sealed Transcripts, 913 F.2d 89, 92 (3d Cir.
1990). “This broader review includes independent
consideration of the district court’s order and the factual
findings inferred from the evidence before it.” Id. “In the
First Amendment context … the Supreme Court has
recognized the duty of reviewing courts to engage in an
independent factual review of the full record. Thus we have
explained that when we address a right of access claim, our
scope of review is substantially broader than that for abuse of
discretion.” United States v. Antar, 38 F.3d 1348, 1357 (3d
Cir. 1994) (internal citation and footnote omitted).
a two-prong evaluation of ‘whether the place and process
have historically been open to the press’ and ‘whether public
access plays a significant positive role in the functioning of
the particular process in question.’” PG Pub. Co. v. Aichele,
705 F.3d 91, 104 (3d Cir. 2013) (quoting Press-Enterprise
Co. v. Superior Court of Cal. for Riverside Cty., 478 U.S. 1, 8
(1986)). The first part of that test – generally referred to as
the “experience” prong – calls for, as the Court noted, a
consideration of whether there has been a tradition of opening
to the press the matter in question. United States v. Wecht,
537 F.3d 222, 233-34 (3d Cir. 2008). The second part –
called the “logic” prong – considers whether public access
plays a positive role in the judicial process by, inter alia,
“enhancing both the basic fairness of the criminal trial and the
appearance of fairness so essential to public confidence in the
system.” Id. (internal quotation marks omitted). “Where
both prongs of the test are satisfied, a qualified First
Amendment right of public access attaches.” Aichele, 705
F.3d at 104 (internal quotation marks omitted). If that right
attaches, it gives rise to a strong presumption of access, which
“may be overcome only by an overriding interest based on
findings that closure is essential to preserve higher values and
is narrowly tailored to serve that interest.” Press-Enterprise,
478 U.S. at 9 (internal quotation marks omitted).
As to the “experience” prong, the Media argue that the
Conspirator Letter is akin to a bill of particulars to which the
right of access would unquestionably attach. They are right
that our precedent does grant public access to bills of
particulars, see Smith, 776 F.2d at 1112 (“[A]ccess to bills of
particulars is protected by the First Amendment.”), but the
term “bill of particulars” does not cover each and every
document that provides additional information about a
criminal charge. A bill of particulars is of a specific nature,
and its status has legal consequences. As earlier noted, supra
note 3, “[a] bill of particulars is a formal written statement by
the prosecutor providing details of the charges against the
defendant.” 1 Fed. Prac. & Proc. Crim. § 130 (4th ed. 2016).
It effectively narrows the government’s case at trial in the
same way as the formal charging document: “there can be no
variance between the notice given in a bill of particulars and
the evidence at trial.” Smith, 776 F.2d at 1111; see also
United States v. Murray, 297 F.2d 812, 819 (2d Cir. 1962)
(“[T]he government is strictly limited to proving what it has
set forth in [a bill of particulars].”). In many instances, a bill
of particulars provides information that ought to have been in
the indictment in the first place and so protects the defendant
by “preclud[ing] double jeopardy,” shielding the defendant
from a second trial for the same acts. United States v. GAF
Corp., 928 F.2d 1253, 1260 (2d Cir. 1991); see also United
States v. Urban, 404 F.3d 754, 771 (3d Cir. 2005).
Doe and the government take the position that the
Conspirator Letter is not a bill of particulars at all but is
instead an item of pretrial discovery, to which the First
Amendment right of access has not historically been applied.
See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33 (1984)
(“[R]estraints placed on discovered, but not yet admitted,
information are not a restriction on a traditionally public
source of information.”). “With respect to experience, there
is no tradition of access to criminal discovery. To the
contrary, discovery, whether civil or criminal, is essentially a
private process because the litigants and the courts assume
that the sole purpose of discovery is to assist trial
preparation.” United States v. Kravetz, 706 F.3d 47, 54 (1st
Cir. 2013) (internal quotation marks omitted); see also United
States v. Anderson, 799 F.2d 1438, 1441 (11th Cir. 1986)
(“Historically, discovery materials were not available to the
public or press.”). 11
This difference of opinion over the character of the
Conspirator Letter is no mere battle over labels. It is the issue
that, at least on the constitutional point, decides this case.
Determining whether the Conspirator Letter is the sort of
document that would historically have been available to the
public, and thus would satisfy the “experience” prong of the
First Amendment inquiry, turns on whether it is more
properly thought of as discovery material or as a bill of
particulars.
Our opinion in United States v. Smith is our only
previous effort to grapple with a pretrial request for public
disclosure of unindicted co-conspirator information at a
similar stage in a criminal prosecution. 776 F.2d at 1112.
Although Smith ultimately concluded that the document at
issue there should not be disclosed, it nonetheless held that
both the First Amendment and common law rights of access
apply to bills of particulars. Id. at 1112-13. The defendants
in that case moved for a bill of particulars on various issues,
including a request for the names of unindicted co-
conspirators. Id. at 1105. Unlike here, the district court in
Smith actually granted the motion and ordered that the
government provide a bill of particulars listing the names of
unindicted co-conspirators. See id. at 1105-06. Also unlike
11
See also United States v. Benzer, No. 2:13-cr-18,
2015 WL 9200365, at *4 (D. Nev. Dec. 15, 2015) (collecting
authorities concluding that there is “no traditional right of
access to pretrial discovery”).
here, the government formally “filed [that] list of names in
response to th[e] order and the Clerk placed the document
under seal.” Id. at 1106. Two newspapers then intervened
and moved to unseal the list.
Under those circumstances, we considered the list to
be a bill of particulars and we held that the First Amendment
right of access applied. We first emphasized the importance
of ensuring the public’s access to the charging documents in a
criminal case:
Th[e] historic tradition of public access to the
charging document in a criminal case reflects
the importance of its role in the criminal trial
process and the public’s interest in knowing its
contents. It sets forth the charge or charges to
be tried and … thereby establishes the general
parameters of the government’s case.
Knowledge of the charge or charges is essential
to an understanding of the trial, essential to an
evaluation of the performance of counsel and
the court, and, most importantly, essential to an
appraisal of the fairness of the criminal process
to the accused.
Id. at 1112. We then noted that, “[h]istorically and
functionally, the bill of particulars is closely related to the
indictment.” Id. at 1111. Bills of particulars are regarded as
“supplements to the indictment rather than as pretrial
discovery.” Id. “[I]mportantly, a bill of particulars, like the
indictment, is designed to define and limit the government’s
case. As with the indictment, there can be no variance
between the notice given in a bill of particulars and the
evidence at trial.” Id. In short, a public right of access
attaches to a bill of particulars because the bill serves the
same purpose and has the same legal effect as a charging
document, to which the right of access unquestionably
attaches. The very function it serves – as a supplement to the
indictment – is what suggests generally open access to it. 12
Here, for at least four reasons, the Conspirator Letter
does not share the attributes of a bill of particulars and so
stands in contrast to the document in Smith. First, the
government did not treat it as a bill of particulars. In the
government’s words, it “conceptualized and treated the Letter
as a vehicle for voluntarily delivering discovery to
[d]efendants rather than as a formal bill of particulars that
was ordered by the District Court. Indeed, the [g]overnment
objected strongly to [d]efendants’ request for a bill of
particulars in its opposition to [d]efendants’ discovery
motions.” (USA Answering Br. at 13.) When the defendants
moved for a bill of particulars, the government outlined – in
great detail 13 – why such a binding document is unnecessary
in this case.
12
In the end, Smith determined that the list should
remain sealed to protect the named persons’ reputation and
privacy interests. 776 F.2d at 1113-15. We need not weigh
the public and private interests at stake in this case, however,
because – unlike in Smith – we conclude that there is no
presumptive right of access to the document in question.
13
The government’s response to the motions for bills
of particulars included a section entitled: “Defendants’
motions for bills of particulars should be denied.” (A-136.)
In that section, the government argued extensively that a bill
We recognize that the government may have avoided
this entire dispute by stating, when it gave the Letter, that
doing so was a matter of discovery and not a response to the
request for a bill of particulars. It did not do that. 14 But,
of particulars was not required, correctly citing the standards
for determining whether a bill of particulars was necessary. It
summarized its argument as follows:
The circumstances of this case obviate the
professed need for additional clarity with
respect to the allegations in the Indictment.
Count One of the Indictment is 26 pages long,
and provides a wealth of detailed information
about the nature of the charged conspiracy and
[d]efendants’ specific roles in carrying out its
aims. Moreover, discovery in this case has been
extensive, and [d]efendants have had at their
disposal for some time documentary evidence
that will be used by the [g]overnment to prove
its case. Indeed, one of [d]efendants’ complaints
is that the [g]overnment has provided too much
discovery.
(A-139.) It would require a painfully strained reading of that
response to regard it as demonstrating the government’s
acquiescence and agreement to provide the Defendants with
the bill of particulars that they were seeking.
14
The government has conceded in its briefing that it
“could have made clearer to the District Court that the
[C]onspirator Letter was a discovery letter, not a bill of
particulars,” and it reiterated that concession at oral argument.
(USA Answering Br. at 6 n.2.) We wholeheartedly agree. In
despite that failing, more than is present on this record is
needed to persuade us that the Conspirator Letter was actually
(and unbeknownst to the government) a bill of particulars,
when the prosecutors believed and stated that they were
agreeing only to share a limited set of information, the sort of
“informal correspondence” that is regularly “communicat[ed]
between the parties” to a criminal case in fulfillment of
discovery obligations. (A-186.) The government was willing
to give the Conspirator Letter to the defendants to assist them
in trial preparation, but it was not bargaining for the
constraints that would be triggered by the filing of a bill of
particulars. 15 Of course, the government cannot avoid the
fact, it muddied the waters by citing a portion of the U.S.
Attorney’s Manual that said, “[w]ith respect to bills of
particulars that identify unindicted co-conspirators,
prosecutors generally should seek leave to file such
documents under seal.” (A-192-93.) While we disagree with
the District Court’s conclusion about the status of the
Conspirator Letter, the government certainly should have
been more explicit at the time of the disclosure that it was
providing the letter as discovery material only and that it did
not intend the letter to function as a bill of particulars.
15
There are legitimate reasons why the defendants
would want to know whom the government considered
unindicted co-conspirators to be, even if the information did
not serve the function of a bill of particulars. For example,
during a trial, the government could potentially try to admit
into evidence any co-conspirator statements under the hearsay
exception in Federal Rule of Evidence 801(d)(2)(E). The
defendants would therefore be well-served to know whose
statements might be used against them. Similarly, each
legal consequences associated with a bill of particulars
merely by calling the document something else, but its
understanding of the character of its own filing is significant.
Here, that understanding was that the Conspirator Letter was
nothing more than discovery material.
The second reason for concluding that the Letter is no
bill of particulars is that, prior to the Media’s motion for
access, the District Court did not treat it as such. The Court
did not characterize the Conspirator Letter as a bill of
particulars at the time it was turned over, and never ordered
the government to file a bill of particulars, as occurred in
Smith. 16
participant in a conspiracy is liable for the actions of co-
conspirators when such actions are undertaken in furtherance
of the goals of the conspiracy. See Pinkerton v. United
States, 328 U.S. 640, 645-48 (1946). As a consequence, if the
defendants know whom the government regards as a co-
conspirator, they also know whose conduct might potentially
be attributed to them.
16
The Media cite a handful of cases in their brief in
which the government has provided bills of particulars
without court order. See, e.g., United States v. Cont’l Grp.,
Inc., 456 F. Supp. 704, 707 n.1 (E.D. Pa. 1978) (referring to a
“Voluntary Bill of Particulars”). We agree with the Media’s
contention that a bill of particulars can be provided without
court order. Even Doe acknowledges that the government
can “conced[e] a motion for a bill of particulars and fil[e] that
bill.” (Doe Reply Br. at 10.) But that only happens with the
government’s agreement to voluntarily provide a formal bill,
The third reason is that the defendants also did not
behave as though they believed the Conspirator Letter served
as a bill of particulars. One would have expected them to
insist on the filing of the Conspirator Letter, if it were to be
treated as a bill of particulars, yet the Conspirator Letter was
never filed with the Clerk. 17 It was emailed directly to the
District Court judge because of the government’s
understandable desire “to protect the sensitive information
contained in the [C]onspirator Letter by asking the District
Court to seal it.” (USA Answering Br. at 15.)
Fourth and finally, the Conspirator Letter simply does
not serve the purpose of a bill of particulars. That purpose is
which we would expect would be signaled by styling the
document as such.
17
According to Federal Rule of Criminal Procedure
7(f), “[t]he court may direct the government to file a bill of
particulars.” In Smith, we noted that Rule 7(f)’s reference to
the government’s need to “file” a bill of particulars weighed
in favor of treating it as a supplement to the indictment rather
than pretrial discovery, since Federal Rule of Criminal
Procedure 16 provides that discovery need only be disclosed
directly to the defendant in a criminal case. 776 F.2d at 1111.
Federal Rule of Criminal Procedure 49(d) states that
filings in criminal actions are governed by Federal Rule of
Civil Procedure 5(d)(2), which states: “A paper is filed by
delivering it: (A) to the clerk; or (B) to a judge who agrees to
accept it for filing, and who must then note the filing date on
the paper and promptly send it to the clerk.” Neither
happened here.
to fill in the holes in an indictment when “the indictment itself
is too vague and indefinite … to inform the defendant of the
nature of the charges brought against him.” United States v.
Moyer, 674 F.3d 192, 203 (3d Cir. 2012) (internal citations
and quotation marks omitted). The rules of criminal
procedure require an indictment to be concise. Id. The need
for concision, though, does not excuse the omission of
information necessary to inform defendants of the charges
against them and to safeguard their rights against double
jeopardy. A bill of particulars can fix such flaws. The
indictment in this case, however, did not require that kind of
repair. On the contrary, the indictment is quite specific,
running thirty-six pages and setting out the alleged role of
each defendant with specificity. It gives the defendants more
than enough information to make them aware of the crimes
with which they are charged and allows them to prepare a
defense. The Media rightly agreed at oral argument that the
indictment against Baroni and Kelly is detailed. And that
level of detail is the very thing that prevents any credible
claim that the defendants needed a bill of particulars.
The dividing line between a bill of particulars and
pretrial discovery may not always be clear, but it is in this
instance. Despite the Media’s protestations, the mere fact that
the Conspirator Letter includes information that could also
have been included in a bill of particulars does not turn it into
one. Nor does the existence of a motion for a bill of
particulars mean that all information flowing from the
government must be treated as a response to the motion. The
legal significance of a bill of particulars – supplementing and
narrowing the charging document, and thus affecting the
government’s case at trial – is not something to be lightly
created by implication. As in Smith, there may be instances
in which an indictment charging a conspiracy is so overbroad
or vaguely drafted that a bill of particulars identifying
unindicted co-conspirators is required to allow the defendant
to prepare a defense. Considering the detail of this
indictment, however, that is not a problem here.
In sum, the Conspirator Letter is not a bill of
particulars because the government did not regard it as one,
the Court did not order one, the defendants did not behave as
though they had received one, and the Letter itself did not
serve the purpose of one. The “experience” prong of the First
Amendment inquiry thus weighs against applying a
presumptive right of access to the Conspirator Letter.
That conclusion suffices to end the First Amendment
analysis, but, in the alternative, we note that the second, or
“logic,” prong of the analysis – whether public access plays a
meaningfully positive role in the functioning of the particular
process in question – also weighs in Doe’s favor. The lack of
adjudicatory significance of the Letter is manifest in two
ways. First, as just discussed, it is not needed to address any
shortcomings in the indictment and so to avoid unfairness in
the criminal proceedings. Second, the document – at least at
this stage of the proceedings – has no evidentiary
significance. The government rightly acknowledges that
there may come a point when the information in the Letter
becomes important, but it is speculative to say it ever will,
and a chance of significance is not the same as significance.
“Information wants to be free” is, in some quarters, a
popular slogan, but there are dangers to the administration of
justice in too freely granting access to information of the sort
at issue here. “For one, the purpose of the discovery rules –
to … avoid unnecessary surprise and to level the playing field
– might be undermined.” United States v. Smith, 985 F.
Supp. 2d 506, 520 (S.D.N.Y. 2013). “And, because the
discovery rules are reciprocal, there is the risk that unfettered
public access could jeopardize a defendant’s trial strategy.”
Id.
Moreover, were we to apply a right of access in this
case, it could stunt future efforts by prosecutors to resolve
pretrial discovery disputes and motions practice without
having to involve the district courts. The prosecution chose
to satisfy Baroni and Kelly’s request to know whom the
government considered to be co-conspirators. See supra note
15. It did so voluntarily, without court order. To now impose
a legal obligation on the government to comport its proof at
trial with its voluntary submission could well chill similar
efforts by the government in the future to moot pretrial
motions through voluntary disclosure. That result would be
much to the detriment of future defendants, who would
probably receive less information in discovery than they
currently do and would require judicial resolution of more
discovery disputes. The government emphasized those risks
at oral argument, and we agree they are real. We therefore
conclude that logic weighs against a First Amendment right
of access to pretrial discovery materials like the Conspirator
Letter.
That leaves for consideration only the Media’s claim
of a common law right of access to the Letter.
B. The Common Law Right of Access 18
“We have previously recognized a right of access to
judicial proceedings and judicial records, and this right of
access is beyond dispute.” Pansy v. Borough of Stroudsburg,
23 F.3d 772, 780-81 (3d Cir. 1994) (internal quotation marks
omitted); see also Nixon v. Warner Commc’ns, Inc., 435 U.S.
589 (1978) (recognizing that, in the context of criminal
proceedings, the press has a historically-based, common law
right of access to judicial records and documents). That right
is rooted in common law and predates the Constitution. Bank
of Am. Nat’l Tr. & Sav. Ass’n v. Hotel Rittenhouse Assocs.,
800 F.2d 339, 343 (3d Cir. 1986). It is, however, narrower
than the First Amendment right we have just discussed, being
focused on the specific question of “whether [the document at
issue] is considered to be a ‘judicial record.’” In re Cendant
Corp., 260 F.3d 183, 192 (3d Cir. 2001). And the answer to
that question “depends on whether [the] document has been
filed with the court, or otherwise somehow incorporated or
integrated into a district court’s adjudicatory proceedings.”
Id. A document may also be considered a “judicial record”
absent formal filing, in limited circumstances, “if a court
interprets or enforces the terms of that document, or requires
that it be submitted to the court under seal.” Id.
In Leucadia, Inc. v. Applied Extrusion Technologies,
Inc., we noted that “[n]umerous other courts have …
recognized the principle that the filing of a document gives
18
“We review decisions relating to the common law
right of access generally for abuse of discretion, though our
review of the legal principles applied is plenary.” Wecht, 484
F.3d at 208.
rise to a presumptive right of public access.” 998 F.2d 157,
161-62 (3d Cir. 1993). The act of filing, in fact, seems to be
the most significant consideration, as is evident in situations
in which we have previously granted the right of access. For
example, we have done so with papers filed in connection
with a motion for summary judgment, Republic of Philippines
v. Westinghouse Elec. Corp., 949 F.2d 653, 660-62 (3d Cir.
1991), transcripts of civil trials and exhibits admitted at trials,
Littlejohn v. Bic Corp., 851 F.2d 673, 678-80 (3d Cir. 1988),
and transcripts of a hearing for a preliminary injunction,
Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1066 (3d Cir.
1984).
But we have also held that the filing of a document
does not, on its own, bring that document within the common
law right of access. In Leucadia, we said that “there is a
presumptive right to public access to all material filed in
connection with nondiscovery pretrial motions, whether these
motions are case dispositive or not, but no such right as to
discovery motions and their supporting documents.” 998
F.2d at 165 (emphasis added). That case thus recognized the
longstanding limitation on the public’s access to discovery
materials and so limited the common law right of access, even
when discovery motions and their supporting documents are
filed with the court. A contrary ruling, we noted, “would
make raw discovery, ordinarily inaccessible to the public,
accessible merely because it had to be included in motions
precipitated by inadequate discovery responses or overly
aggressive discovery demands. This would be a holding based
more on expediency than principle.” Id. at 164. Inclusion in
a judicial filing, therefore, does not necessarily bring filed
discovery materials within the scope of the common law right
of access. See Wecht, 484 F.3d at 209 (“[D]ocuments filed
with the court are generally subject to the common law right
of access, unless attached to a discovery motion.”).
Here, it seems, the Conspirator Letter was not filed
with the Clerk’s Office but was emailed directly to the
District Court judge to ensure that the defendants would feel
some threat of adverse consequences from the Court if the
Letter were leaked to the press. 19 The government contends
that “[t]he mere act of submitting a document to the court as
part of a request to seal that same document should not
convert the document into a judicial record to which a
presumptive right of access attaches.” (USA Answering Br.
at 15.) By the government’s lights, “[i]t would be beyond
ironic if an act taken to safeguard certain information from
premature public disclosure inadvertently triggered the
public’s right to access that information.” (Id. at 16.)
Even accepting, for the moment, the notion that
emailing a document directly to a judge, without filing it with
the Clerk, can be regarded as a formal “filing,” that step was
not sufficient to bring the Letter within the common law right
of access. For the reasons we have described at length, the
Conspirator Letter is properly categorized as pretrial
discovery and thus falls under our holding in Leucadia:
discovery materials that are part of judicial filings are
generally not “judicial records” and do not fall within the
common law right of access. The fact of filing is one point to
19
We question the government’s decision to email the
Conspirator Letter directly to the judge in lieu of a formal
filing. We do not gainsay the concern that motivated that
decision, but permission should have been sought from the
District Court first.
consider but it cannot be the sole basis for applying the right
of access.
The test is more functional than that. “[T]he issue of
whether a document is a judicial record should turn on the use
the court has made of it rather than on whether it has found its
way into the clerk’s file.” Pansy, 23 F.3d at 783. To be
considered a judicial record, to which the common law right
of access properly attaches, “the item filed must be relevant to
the performance of the judicial function and useful in the
judicial process in order for it to be designated a judicial
document.” United States v. Amodeo, 44 F.3d 141, 145 (2d
Cir. 1995). In light of its present lack of adjudicatory
significance, the Conspirator Letter plays no part in the
judicial function or process. The Letter was intended as an
aid to the defense, not as an aid to the judge in rendering a
decision or for some other judicial purpose. “The court was
merely the passive repository of the letter and needed to do
nothing with it” at the time it was submitted. (USA
Answering Br. at 15.) The only reason for sending it to the
judge was to ensure that it would be protected from public
disclosure. We agree with the government that it would be a
sad irony if that step – done for the purpose of protecting the
document from disclosure – somehow meant that the letter
was now unavoidably in the public realm. We therefore hold
that the Conspirator Letter is not a judicial record to which
the common law right of access attaches. 20
20
Doe also raises a due process challenge to the
disclosure of the Conspirator Letter, but we do not need to
consider Doe’s due process rights to resolve the instant
appeal. See New Directions Treatment Servs. v. City of
Reading, 490 F.3d 293, 301 n.5 (3d Cir. 2007) (“[W]e have
III. CONCLUSION
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. 21
an obligation not to decide constitutional questions unless
necessary.”). We thus decline to address that argument. We
also will not address the Media’s argument about the
timeliness of Doe’s motion to intervene. The Media contend
that Doe “had every chance” to intervene earlier, “but instead
sat on his hands” (Media Answering Br. at 14), so his “late
application is barred” (id. at 43). The utterly undeveloped
character of the Media’s protestations about the timeliness of
intervention means that the argument is waived. John Wyeth
& Bro. Ltd. v. CIGNA Int’l Corp., 119 F.3d 1070, 1076 n.6
(3d Cir. 1997) (Alito, J.) (“[A]rguments raised in passing …
are considered waived.”).
21
Doe also appealed from the District Court’s order,
dated May 13, 2016, denying his request for a stay pending
appeal of its order requiring the release of the Conspirator
Letter. We will dismiss Doe’s appeal of that order as moot,
both because we have previously granted Doe’s request for a
stay pending appeal and because, by vacating the District
Court’s underlying order that Doe had sought to stay, there is
now no pending prospect that the Conspirator Letter will be
released.
In a motion for reconsideration dated May 17, 2016,
the Media sought release of the Conspirator Letter with Doe’s
name redacted. Having concluded that the entire Conspirator
Letter is not subject to any public right of access, we discern
no basis for the Media’s request for its partial disclosure. As
we have explained, the Media has no right of access to
pretrial discovery, which includes the entirety of the
Conspirator Letter. Accordingly, we will deny the Media’s
motion for reconsideration insofar as it requests a redacted
version of the Conspirator Letter.