Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
4-12-2007
USA v. Wecht
Precedential or Non-Precedential: Precedential
Docket No. 06-3098
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007
Recommended Citation
"USA v. Wecht" (2007). 2007 Decisions. Paper 1164.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1164
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 06-3098, 06-3099, 06-3195, 06-3202, 06-3212, 06-3213 &
06-3704
UNITED STATES OF AMERICA,
Appellant in No. 06-3195
v.
CYRIL H. WECHT,
Appellant in No. 06-3098
WPXI, INC.,
Intervenor
Appellant in Nos. 06-3099
and 06-3202
PG PUBLISHING CO. D/B/A THE PITTSBURGH POST-
GAZETTE,
Intervenor
Appellant in Nos. 06-3212
and 06-3213
TRIBUNE-REVIEW PUBLISHING CO., and
HEARST-ARGYLE STATIONS, INC. D/B/A WTAE-TV,
Intervenors.
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 2:06-cr-00026)
District Judge: Honorable Arthur J. Schwab
No. 06-3704
IN RE: DR. CYRIL H. WECHT
_____
On Petition for Writ of Mandamus
Related to Western District of Pennsylvania
D.C. No. 2:06-cr-00026
District Judge: Honorable Arthur J. Schwab
Argued September 12, 2006
Before: FUENTES, FISHER, and BRIGHT,* Circuit Judges.
(Filed: April 12, 2007)
_______
Jerry S. McDevitt (ARGUED)
Richard L. Thornburgh
Mark A. Rush
Amy L. Barrette
J. Nicholas Ranjan
Kirkpatrick & Lockhart Nicholson Graham LLP
535 Smithfield Street
Pittsburgh, PA 15222
Attorneys for Cyril H. Wecht
Douglas Letter (ARGUED)
Appellate Litigation Counsel, Civil Division
950 Pennsylvania Avenue, N.W.
*
Honorable Myron H. Bright, United States Court of
Appeals for the Eighth Circuit, sitting by designation.
2
Washington, DC 20530
Richard A. Friedman (ARGUED)
Appellate Section, Criminal Division
United States Department of Justice
10th Street & Constitution Avenue, N.W.
Washington, DC 20530
Mary Beth Buchanan
United States Attorney
Peter Keisler
Assistant Attorney General
Robert L. Eberhardt
Assistant United States Attorney
Rebecca Ross Haywood (ARGUED)
Assistant United States Attorney
Stephen S. Stallings (ARGUED)
Office of United States Attorney
700 Grant Street
Suite 400
Pittsburgh, PA 15219
Attorneys for United States of America
Walter P. DeForest (ARGUED)
David J. Berardinelli
George Bobb
DeForest Koscelnik Yokitis & Kaplan
3000 Koppers Building
Pittsburgh, PA 15219
Attorneys for Intervenors WPXI, Inc.
David J. Bird (ARGUED)
W. Thomas McGough
Joseph F. Rodkey, Jr.
Reed Smith LLP
435 Sixth Avenue
Pittsburgh, PA 15219
Attorneys for Intervenors PG Publishing Co. D/B/A the
Pittsburgh Post-Gazette
David A. Strassburger (ARGUED)
Strassburger, McKenna, Gutnick & Potter, P.C.
Four Gateway Center, Suite 2200
3
444 Liberty Avenue
Pittsburgh, PA 15222
Attorney for Intervenor Tribune-Review Publishing Co.
and Hearst-Argyle Stations, Inc. D/B/A WTAE-TV
OPINION OF THE COURT
FUENTES, Circuit Judge.
Dr. Cyril Wecht, an acclaimed forensic pathologist, was
indicted on January 20, 2006, for the crimes of theft of honest
services, mail fraud, wire fraud, and theft from an organization
receiving federal funds. The 84-count indictment asserts that he
unlawfully used his public office as the coroner of Allegheny
County, Pennsylvania, for private financial gain. The government
alleges that Dr. Wecht, for example, billed private clients
improperly, falsified transportation records, used County
employees for work related to his private practice, and provided
cadavers to a local college in exchange for laboratory space.
Wecht has denied these charges, claiming they are unsupported and
politically motivated. His trial was scheduled to begin in October
2006, but we have stayed it pending disposition of three
applications that are before us: (1) Wecht’s challenge of Local Rule
83.1 of the U.S. District Court for the Western District of
Pennsylvania, which limits attorney speech about cases, (2) the
government’s appeal of the District Court’s decision to unseal
certain records, and (3) Wecht’s petition for an order disqualifying
the trial judge.
I. FACTUAL AND PROCEDURAL BACKGROUND
After an FBI investigation led by Special Agent Bradley
Orsini, Wecht was indicted on January 20, 2006. Wecht contends
that his indictment stemmed from his public feud with Stephen
Zappala, the Allegheny County District Attorney. According to
Wecht, this feud was “caused by Zappala’s failure to investigate or
prosecute white policemen who had killed black citizens in deaths
4
ruled a species of homicide by Dr. Wecht.” Wecht Br. at 7. Wecht
claims that in order to end their public debate, Zappala prompted
an FBI investigation into Wecht’s activities. As part of this
investigation, Orsini signed affidavits in April 2005 for three
search warrants, the execution of which were covered by local
television stations and newspapers.
Wecht asserts that his indictment was “drafted as much for
media attention as legal merit,” and that the U.S. Attorney
“personally contributed to the extensive media exposure by calling
a highly unusual press conference which was widely attended by
the media.” Id. at 11-12. Wecht claims the U.S. Attorney’s
comments “demonize[d]” him and “portrayed [him] as a craven
bodysnatcher.” Id. at 13-14.
Soon after the indictment, Wecht and the government
worked on a proposed Pretrial Order, which they discussed with
the Court at two status conferences. On March 1, 2006, the District
Court adopted the final proposed Pretrial Order without objection
from either party.1 The Pretrial Order contained various provisions
relevant to the matters presently before us. Section 9 of the Pretrial
Order incorporated Western District of Pennsylvania Local Rule
83.1. The Rule is entitled “Free Press—Fair Trial Provisions” and
limits what attorneys can say about ongoing criminal cases.
Specifically, attorneys may not release information that “a
reasonable person would expect to be disseminated by . . . means
of public communication . . . if there is a reasonable likelihood that
such dissemination will interfere with a fair trial or otherwise
prejudice the due administration of justice.” W.D.PA.LR 83.1(A).
In addition, the Rule prohibits attorneys from making public
statements about a number of subjects, including: the defendant’s
prior criminal record or reputation, the existence of a confession,
the identity of prospective witnesses, the possibility of a guilty
plea, or the merits of the case. W.D.PA.LR 83.1(C)(1)-(6). The
Pretrial Order also required the government to turn over materials
relevant to the impeachment of anticipated government witnesses.
1
At an earlier stage the government raised some objections
that are not relevant to this appeal; the defense apparently did not
raise any objections during the drafting process.
5
In addition, it provided an aggressive schedule and set of deadlines
for pretrial motions and discovery.
On April 6, 2006—about two and a half months after the
filing of the indictment—the District Court granted a request by the
government, submitted earlier that day, for leave to file a motion
under seal. The request did not state the substance or subject
matter of the underlying motion. The following morning, Wecht
filed a motion to suppress evidence. The motion alleged, in part,
that Agent Orsini had falsified material parts of his search warrant
affidavits and that he generally had a poor reputation for
truthfulness within the FBI.2 Shortly thereafter, the government,
having obtained the District Court’s permission the previous day,
filed a motion under seal seeking an ex parte ruling on whether the
government must provide defense counsel with certain personnel
records of Agent Orsini. At a status conference, Jerry McDevitt,
lead counsel for Wecht, asked how he was supposed to respond to
the motion filed under seal, and the District Court replied, “[y]ou
are not.” JA 262. Later that same day, the District Court issued a
sealed order requiring the government to provide copies of the
Orsini records to Wecht but allowing it to first move for a
protective order “after consultation with counsel for defendant.”
JA 67.
On April 21, the government provided Wecht with a
preliminary list of about 1350 exhibits. The exhibits consisted of
more than 240,000 pages in an electronic database.3 Wecht Pet. at
31. Wecht’s counsel believed that this submission did not comply
with the Pretrial Order, which required the government to provide
2
The motion to suppress stated that “Counsel for Dr. Wecht
represents, by way of proffer, that they have repeatedly interviewed
a witness with personal knowledge of Orsini’s reputation and
tactics and who was personally asked by him to lie during a
Department of Justice investigation into his misconduct.” JA 157
n.7.
3
Apparently, the government provided additional exhibits
in the following days bringing the total number of pages to
300,000.
6
exhibits it “intend[ed]” to use at trial. App. 44. In addition,
Wecht’s counsel asserted that it would not be possible to review all
the documents in the time allotted by the Pretrial Order. At a
conference held on April 28, the District Court determined that the
government had complied with the Pretrial Order and expressed his
hope that the parties would work together productively on a joint
exhibit list.
On May 3, 2006—about four weeks after the Court had
ordered the government to provide Wecht with the Orsini
records—the government filed a motion for a protective order
prohibiting public disclosure of the records. Wecht filed a
response on May 10 objecting to the proposed protective order. On
May 12, two newspapers (the Pittsburgh Post-Gazette and the
Pittsburgh Tribune-Review) and two television stations (WPXI and
WTAE) moved sucessfully to intervene.4 Meanwhile, in late April
and early May, defense counsel made a number of comments to the
press regarding the case, some of which were in response to stories
suggesting that the government would charge Wecht with
additional tax fraud charges and that one of Wecht’s associates had
intimidated a witness. The government asked the District Court to
address the propriety of these comments to the press in light of the
Pretrial Order’s limitations.
At a conference on May 12, the Court reminded the parties
of the limits placed on their public comments about the case and
suggested that either party could move for contempt if either
believed opposing counsel violated the Pretrial Order. The Court,
however, permitted briefing on whether Local Rule 83.1 imposed
unconstitutional prior restraints on speech. The parties also
discussed the government’s exhibits; defense counsel reiterated that
he could not review the materials and make objections by the
Pretrial Order’s deadline. The Judge then scheduled four days of
hearings in early June to go through the exhibits with the parties.
Finally, the Judge also set a schedule for the parties to brief
whether Orsini’s records should be unsealed, and he instructed the
4
The District Court allowed the media companies to
participate in the May 12 conference, and formally granted their
motions to intervene on May 30.
7
parties to confer and file a joint proposed protocol for any future
sealing of documents. A few days later, while awaiting briefing on
the sealing of the Orsini records, the Court issued a protective order
prohibiting defendant from reproducing the records or disclosing
their contents in open court.
Despite the May 12 conference, problems with the
government’s exhibits continued. Wecht did not submit specific
objections to the exhibits by the Pretrial Order’s May 15 deadline.
On May 17, the District Court issued an order admitting all of the
government’s exhibits subject only to relevancy objections that
might result from rulings on the motion to suppress or any motion
to dismiss. On May 26, Wecht moved for reconsideration of this
order, which he now characterizes as a “suspension of the rules of
evidence.” Wecht Pet. at 28.
On May 31, the District Court denied most elements of
Wecht’s suppression motion but scheduled a June 8 hearing to
address the issue of certain boxes that were seized by the FBI at
Wecht’s private office. Although Agent Orsini testified at the
suppression hearing, McDevitt did not use the personnel records to
cross-examine him. McDevitt stated at oral argument that he
believed an order of the District Court had prohibited him from
doing so. Also on June 8, the Court ruled that Local Rule 83.1 did
not violate the First Amendment. Wecht and the media outlets
appeal this ruling.
On June 13, the District Court denied the balance of
Wecht’s motion to suppress as well as his motion to unseal the
Orsini personnel documents. The Court, however, granted the
media outlets’ motion to unseal, finding that “[e]ven though the
material is quite likely irrelevant and not admissible at trial, the
government has not established a compelling interest or good cause
to justify the continual sealing” of it. JA 44. The District Court
stayed the order pending the government’s appeal.
On June 14, in response to Wecht’s motion to reconsider its
order admitting all of the government’s exhibits, the District Court
ruled on specific objections that Wecht had submitted a week
earlier. The Court also sharply criticized the defense’s failure to
comply with pretrial requirements and announced that following
8
the trial he would schedule a hearing to determine whether
counsel’s actions constituted contempt.
Finally, on June 30, Wecht filed a motion requesting that the
Judge recuse himself from the case. The Judge denied the motion,
and Wecht now seeks a writ of mandamus ordering the Judge’s
disqualification.
In short, there are now three applications before us. First,
Wecht challenges the constitutionality of Local Rule 83.1 and its
limitations on attorney speech about ongoing cases. Second, the
government appeals the District Court’s decision granting the
media outlets’ motion to unseal the Orsini records. Third, Wecht
petitions for an order disqualifying the District Court Judge.
We have jurisdiction under 28 U.S.C. § 1291 to review
Wecht’s appeal regarding the constitutionality of Local Rule 83.1
and the government’s appeal of the unsealing order. In regard to
Wecht’s petition for disqualification of the Judge, we have
jurisdiction to issue writs of mandamus under 28 U.S.C. § 1651(a).
For the reasons that follow, we will vacate the District Court’s
decision as to Local Rule 83.1, though for different reasons than
argued; affirm the District Court’s unsealing order; and deny
Wecht’s petition to disqualify the trial judge.
II. DISCUSSION
A. Local Rule 83.1
As previously mentioned, shortly after Wecht’s indictment,
the government and defense counsel agreed to the terms of a
Pretrial Order that incorporated the provisions of Western District
of Pennsylvania Local Rule 83.1. The Rule states:
It is the duty of the lawyer or law firm not to release
or authorize the release of information or opinion
which a reasonable person would expect to be
disseminated by (for dissemination by any) means of
public communication, in connection with pending
or imminent criminal litigation with which he/she or
the firm is associated, if there is a reasonable
9
likelihood that such dissemination will interfere with
a fair trial or otherwise prejudice the due
administration of justice.
W.D.PA.LR 83.1(A). In addition, the Rule prohibits attorneys
from making public statements about a number of subjects:
1. The prior criminal record (including arrests,
indictments, or other charges of crime), or the
character or reputation of the accused, except that
the lawyer or law firm may make a factual statement
of the accused’s name, age, residence, occupation,
and family status, and if the accused has not been
apprehended, a lawyer associated with the
prosecution may release any information necessary
to aid in his/her apprehension or to warn the public
of any dangers he/she may present;
2. The existence or contents of any confession,
admission, or statement given by the accused, or the
refusal or failure of the accused to make any
statement;
3. The performance of any examinations or tests or
the accused’s refusal or failure to submit to an
examination or test;
4. The identity, testimony or credibility of
prospective witnesses, except that the lawyer or law
firm may announce the identity of the victim if the
announcement is not otherwise prohibited by law;
5. The possibility of a plea of guilty to the offense
charged or a lesser offense;
6. Any opinion as to the accused’s guilt or innocence
or as to the merits of the case or the evidence in the
case.
W.D.PA.LR 83.1(C).
10
About two months after entry of the Pretrial Order, the
government notified the District Court about statements that
Wecht’s attorneys made to the press. For example, regarding the
possibility of a superseding indictment, lead counsel Jerry
McDevitt told a television station that “[i]f you ever lived on a
farm, you know that if you take a bunch of cow manure and you
put it on an existing pile of cow manure, all it does is make a
bigger smell.” Wecht Br. at 19. And Mark Rush, another of
Wecht’s attorneys, commented to a newspaper that “when [Agent
Orsini’s] truthfulness is put to issue, those search warrants will
fall.” JA 277. The government requested that the Court “address
this matter” at the upcoming status conference “by reminding
counsel of the provisions of the [Pretrial Order] and enforcing
those provisions.” JA 278.
At the conference, the Court reminded the parties of their
obligations under the Pretrial Order and suggested that either party
could move for contempt if either believed opposing counsel was
violating the order. McDevitt argued that the Rule was
unconstitutional, and the parties, including the media outlets,
subsequently submitted briefs on the issue. The District Court
determined that the Rule struck “a wise and permissible balance
between the rights of all parties to a fair trial, by an untainted jury,
and the rights of attorneys to speak to the media.” JA 37. On
appeal, Wecht and the media contend that the Rule violates the
First Amendment by imposing overly broad restrictions on speech.
In addition to defending the constitutionality of the Rule, the
government argues that Wecht and his counsel have waived any
First Amendment claims because they agreed to the proposed
Pretrial Order. The government contends that this waiver also
precludes the media companies from asserting third-party standing.
The media outlets, by contrast, assert that they have third-party
standing to bring First Amendment claims on behalf of the public,
irrespective of Wecht’s possible waiver. They claim that the public
has a strong interest in hearing counsel’s views about criminal
cases, particularly high-profile prosecutions such as this one, and
they note that it is well-established that the First Amendment
protects potential recipients of speech as well as speakers. See,
e.g., Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council,
Inc., 425 U.S. 748, 756 (1976) (“Freedom of speech presupposes
11
a willing speaker. But where a speaker exists, as is the case here,
the protection afforded is to the communication, to its source and
to its recipients both.”) (footnote omitted).
1. Third-Party Standing
We previously addressed the standing of third parties to
challenge gag orders in FOCUS v. Allegheny County Court of
Common Pleas, 75 F.3d 834 (3d Cir. 1996).5 There, we noted that
“putative recipients of speech usually have standing to challenge
orders silencing would-be speakers,” but that “plaintiffs still must
show that the gag orders have caused them injury in fact and that
their injury is likely to be redressed by a favorable decision.” Id.
at 838. Accordingly, we held that “third parties have standing to
challenge a gag order only when there is reason to believe that the
individual subject to the gag order is willing to speak and is being
restrained from doing so.” Id. at 838-39.
The government contends that Wecht’s attorneys cannot be
“willing” speakers because they agreed to include the language of
Local Rule 83.1 in the Pretrial Order. This argument however,
misconstrues the purpose of the “willing speaker” rule as well as
the requirements for standing. We have previously determined that
media outlets have “standing to challenge protective orders and
confidentiality orders” as long as they can demonstrate that the
order is an obstacle to their attempt to obtain access. Pansy v.
Borough of Stroudsburg, 23 F.3d 772, 777 (3d Cir. 1994). In
Pansy, we held that intervenor newspapers had standing to
challenge a confidentiality order over a settlement agreement.
Because the newspapers might have gained access to the settlement
agreement through the common law right of access or the
Pennsylvania Right to Know Act, it did not matter that the litigants
in the underlying matter had not objected to the confidentiality
order when it was entered.
5
We exercise plenary review over standing issues. Biener
v. Calio, 361 F.3d 206, 210 (3d Cir. 2004). Although Local Rule
83.1 may not be a “gag order” as that term is typically used, the
same third-party standing principles apply.
12
Physical documents like the settlement agreement in Pansy
are, of course, not the same as speech that may or may not be
uttered. Unlike obtaining redress through access to existing
documents, the only way a third party challenging a gag order can
show that it will receive the information it seeks is by
demonstrating that there is a willing speaker. The purpose of the
“willing speaker” requirement, therefore, is not to tie the third
party’s interests to those of the speaker, but to ensure that there is
an injury in fact that would be redressed by a favorable decision.
Here, it is undisputed that Wecht’s attorneys are willing to speak
about the case and that Local Rule 83.1 limits their ability to do so.
To the extent that an occasion arises in the future where defense
counsel desires to make public statements about the case, we
believe the media and public have a legitimate interest in those
comments not being inhibited by overly restrictive limitations.
Accordingly, we hold that the consent of the parties to an
order limiting speech is irrelevant to third-party standing analysis
as long as the third party can demonstrate that an individual subject
to the order would speak more freely if the order is lifted or
modified. That Wecht’s attorneys consented to a Pretrial Order
incorporating Local Rule 83.1 is of no consequence as long as the
media outlets can show that counsel want to speak about the case
and believe that the Rule limits their ability to do so. The media
outlets have satisfied this requirement and have standing to
challenge the constitutionality of Local Rule 83.1.6
Contrary to the government’s assertions, we believe that
cases decided by other courts of appeals support our holding. See,
e.g, In re Dow Jones & Co., 842 F.2d 603, 605-08 (2d Cir. 1988)
(holding that parties consenting to a gag order can nevertheless be
willing speakers). The government cites Public Citizen v. Liggett
Group, Inc., 858 F.2d 775 (1st Cir. 1988), in which a group of
public health organizations represented by Public Citizen sought
access to discovery materials produced by a tobacco company. The
government focuses on the Court’s observation that plaintiffs in the
underlying case had “opposed the protective order at every stage.”
6
We need not reach the question of whether Wecht also has
standing since he raises the same arguments as the media.
13
Id. at 787 n.12. The government ignores, however, that this
statement was made to support the conclusion that “[b]ecause
obtaining a modification of the protective order will, as a practical
matter, guarantee Public Citizen access to documents in the
plaintiffs’ possession, Public Citizen has standing to seek the
modification.” Id. Employing similar reasoning to reach the
opposite result, the Court in Oklahoma Hospital Ass’n v.
Oklahoma Publishing Co., 748 F.2d 1421 (10th Cir. 1984), denied
a publishing company standing because it was unlikely it “would
succeed in obtaining the redress it seeks—access to the
documents—were [the Court] to lift the protective orders.” Id. at
1425.7 We read these cases as supporting our conclusion that the
standing inquiry should focus on whether third parties would
obtain the information they seek if successful on the merits of their
claims.
2. Modification of the Local Rule
Having determined that the media outlets have standing, we
next address the substance of their challenge. In Gentile v. State
Bar of Nevada, 501 U.S. 1030 (1991), the Supreme Court
determined that a local rule prohibiting attorney speech that had a
“substantial likelihood of material prejudice” on a criminal trial did
not violate the First Amendment. Id. at 1063. The media outlets
assert that Local Rule 83.1 is unconstitutional because it prohibits
comments that have a “reasonable likelihood of prejudice,” a
standard that the Supreme Court in Gentile described as being
“less protective of lawyer speech” than the one it upheld. Id. at
1068. The media outlets also argue that Section C of the Rule
7
The government also cites American Library Association
v. Odom, 818 F.2d 81 (D.C. Cir. 1987), in which researchers
sought access to documents housed in a library. The Court applied
a “willing speaker” test and determined that there was not “a solid
basis on which to conclude that plaintiffs’ interests and the
Library’s . . . [were] congruent,” and that the Library had “not been
shown to be a willing communicator.” Id. at 87. We read Odom
as relying upon the researchers’ failure to demonstrate that they
would gain access to the documents even if successful on the
merits of their claim.
14
impermissibly creates prohibitions on all speech concerning issues
such as the defendant’s prior criminal record or reputation, the
existence of a confession, the identity of prospective witnesses, the
possibility of a guilty plea, and the merits of the case. The
government, on the other hand, contends that the reasonable
likelihood standard satisfies the First Amendment’s requirements.
See In re Morrissey, 168 F.3d 134 (4th Cir. 1999).8 In addition, the
government suggests a limiting construction, under which
comments about the subjects in Section C are only considered
presumptively prejudicial.
We find it unnecessary to address the parties’ constitutional
arguments. Instead, we choose to invoke our supervisory authority
over the application of a local rule of practice and procedure. As
the Supreme Court has noted, courts of appeals are authorized to
“mandate ‘procedures deemed desirable from the viewpoint of
sound judicial practice although in nowise commanded by statute
or by the Constitution.’” Thomas v. Arn, 474 U.S. 140, 146-47
(1985) (quoting Cupp v. Naughten, 414 U.S. 141, 146 (1973)); see
also United States v. Bazzano, 712 F.2d 826, 843 (3d Cir. 1983)
(“[T]here is no doubt that this Court has supervisory power to
promulgate rules of practice and procedure for the better
administration of the judicial process.”). We have invoked this
supervisory power in a variety of contexts. See, e.g., United States
v. Eastern Med. Billing, Inc., 230 F.3d 600, 607-12 (3d Cir. 2000)
(discussing our invocation of supervisory power to prohibit certain
jury instructions); Ryan v. Butera, Beausang, Cohen & Brennan,
193 F.3d 210, 214 (3d Cir. 1999) (exercising supervisory power
over attorney-client fee arrangements); Dunbar v. Triangle Lumber
& Supply Co., 816 F.2d 126, 129 (3d Cir. 1987) (invoking
supervisory authority and mandating certain pleading and notice
requirements when parties seek dismissal based on counsel’s
8
The government asserts the Second Circuit upheld a
reasonable likelihood standard in United States v. Cutler, 58 F.3d
825 (2d Cir. 1995). The Court, however, did not address the
constitutionality of the standard. At the outset of its discussion, the
Court held that because defendant had not taken previous steps to
appeal the relevant order, he could not now argue the restraints
were unconstitutional. See id. at 832-33.
15
apparent default).
Accordingly, we now exercise our supervisory authority to
require that district courts apply Local Rule 83.1 to prohibit only
speech that is substantially likely to materially prejudice ongoing
criminal proceedings.9 Although “our supervisory authority should
not be invoked lightly,” Sowell v. Butcher & Singer, Inc., 926 F.2d
289, 295 (3d Cir. 1991), we believe it appropriate to do so here for
a number of reasons. Perhaps most importantly, both the Supreme
Court and this Court have previously approved the “substantial
likelihood” standard. As the Supreme Court explained in Gentile,
limitations on attorney speech “are aimed at two principal evils: (1)
comments that are likely to influence the actual outcome of the
trial, and (2) comments that are likely to prejudice the jury venire,
even if an untainted panel can ultimately be found.” 501 U.S. at
1075. The Supreme Court specifically noted that the “substantial
likelihood” standard
is narrowly tailored to achieve those objectives. The
regulation of attorneys’ speech is limited—it applies
only to speech that is substantially likely to have a
materially prejudicial effect; it is neutral as to points
of view, applying equally to all attorneys
participating in a pending case; and it merely
postpones the attorneys’ comments until after the
9
This holding applies to the local rules of all the district
courts in our Circuit. Presently, Local Rule of Criminal Procedure
53.1 in the Eastern District of Pennsylvania and Local Rule 83.2 in
the Middle District of Pennsylvania contain “reasonable
likelihood” standards. The District of New Jersey, in Local Rule
of Criminal Procedure 101.1, already sets out a “substantial
likelihood of material prejudice” standard, as does the District of
the Virgin Islands, where Local Rule of Criminal Procedure 1.2
incorporates Local Rule of Civil Procedure 83.2 which adopts the
ABA’s Model Rules of Professional Conduct. The District of
Delaware appears not to have a local rule governing attorney
communications in criminal cases, though a Local Rule of Civil
Procedure 83.6(d)(2) does adopt the ABA’s Model Rules of
Professional Conduct for civil proceedings.
16
trial. While supported by the substantial state
interest in preventing prejudice to an adjudicative
proceeding by those who have a duty to protect its
integrity, the Rule is limited on its face to preventing
only speech having a substantial likelihood of
materially prejudicing that proceeding.
Id. at 1076. Although we have not had occasion to address the
constitutionality of a more restrictive rule, we have stated that the
substantial likelihood standard “fairly balances the integrity of the
justice system with attorneys’ constitutional rights.” United States
v. Scarfo, 263 F.3d 80, 93 (3d Cir. 2001).
In addition, the substantial likelihood standard is consistent
with the ABA Model Rules of Professional Conduct and the ABA
Standards for Criminal Justice. See Model Rules of Prof’l Conduct
R. 3.6 (2002); Standards for Crim. Justice 8-1.1 (3d ed. 1992). The
ABA adopted a reasonable likelihood standard in 1968, but
amended its recommendations over the years in response to
developments in the law.10 In the wake of the ABA’s Model Rules
and the Gentile decision, every state,11 as well as a majority of
10
According to the District Court, Local Rule 83.1 has
remained the same since it was first adopted in 1971 without any
objections from attorneys or the public.
11
Forty-five states currently apply a “substantially likely to
materially prejudice” standard, including each of the eleven states
identified by the Gentile Court as having a reasonable likelihood
standard at the time. Of the five states that do not, two apply
similar standards: Maine prohibits speech that “poses a substantial
danger of interference with the administration of justice,” Me. Bar.
R. 3.7(j); Virginia prohibits communications that “will have a
substantial likelihood of interfering with the fairness of the trial by
a jury,” Va. Sup. Ct. R. 6:2-3.6(a).
The three other states apply standards that appear to be even
more protective of attorney speech. Illinois prohibits speech that
“would pose a serious and imminent threat to the fairness of an
adjudicative proceeding.” Ill. Sup. Ct. R. Prof’l Conduct 3.6. New
17
federal district courts,12 now apply rules that are more protective of
speech than the reasonable likelihood standard. Moreover, the
changes we impose on the federal courts in Pennsylvania will make
their rules on trial publicity consistent with the rules of the
commonwealth of Pennsylvania13 and other district courts in our
circuit. Among other benefits, lawyers practicing in multiple
jurisdictions will now be subject to the same standards.14
Mexico prohibits statements that are “false; or [that] create[] a clear
and present danger of prejudicing the proceeding.” N.M. R. Prof.
Conduct 16-306. And in Oklahoma, lawyers are prohibited from
making public statements that “will have an imminent and
materially prejudicial effect on the fact-finding process in an
adjudicatory proceeding relating to the matter and involving lay
fact-finders or the possibility of incarceration.” Okla. R. Prof’l
Conduct 3.6.
12
Our research discloses that of the ninety-four federal
district courts, there are forty-nine that, either through their own
local rules or by adopting state or ABA rules, apply standards that
are more protective of speech. Of these, forty-three apply
substantial likelihood standards, while six prohibit comments that
would pose a serious and imminent/immediate threat or clear and
present danger to the administration of justice. Thirty-six district
courts, including the three in Pennsylvania, apply reasonable
likelihood standards or rules that are less protective of speech.
Seven districts have only some categorical restrictions on speech,
and two districts appear not to have a rule addressing trial
publicity.
13
Pennsylvania Rule of Professional Conduct 3.6 largely
adopts the language of the ABA Model Rule, as do rules of
professional conduct in New Jersey and Delaware. N.J. Ct. R.
Prof’l Conduct 3.6; Del. Ct. R., Lawyers’ R. Prof’l Conduct 3.6.
14
We also note that the government stated at oral argument
that it “would have no objection whatsoever” to a substantial
likelihood standard, only that it did not believe we should declare
a rule unconstitutional without good reason. Oral Arg. Tr. 35,
Sept. 12, 2006 (“Tr.”).
18
Finally, we note that neither party defends the categorical
restrictions of Section C. Consistent with the ABA Model Rule
and the rules in most jurisdictions, we will read Section C to
provide attorneys with examples of subjects that are likely to be
materially prejudicial if spoken about.
B. Unsealing the Orsini Records
Our judicial process is generally an open one that permits
the public to attend trials and view judicial records. This openness
“promotes public confidence in the judicial system,” “diminishes
possibilities for injustice, incompetence, perjury, and fraud,” and
“provide[s] the public with a more complete understanding of the
judicial system.” Littlejohn v. BIC Corp., 851 F.2d 673, 678 (3d
Cir. 1988). Under certain limited circumstances, however, courts
may restrict or altogether close judicial processes to the public.
In this case, the District Court allowed the government to
submit a motion under seal regarding its potential obligations under
Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United
States, 405 U.S. 150 (1972).15 Specifically, the government sought
permission to withhold from the defense certain personnel records
of Agent Orsini. The District Court issued a sealed order requiring
the government to provide copies of the Orsini records to Wecht
but allowing it first to move for a protective order “after
consultation with counsel for defendant.” JA 67. Discussions
between the parties proved fruitless and the government
subsequently moved for a protective order prohibiting public
disclosure of the Orsini records. Despite Wecht’s objections, the
Court granted the protective order while also setting a briefing
schedule to allow the parties to address the issue of whether the
documents should be unsealed.
15
Brady held that the government must turn over
exculpatory evidence to defendants, and Giglio held that
impeachment evidence falls within the rule expressed in Brady.
See Brady, 373 U.S. at 87; Giglio, 405 U.S. at 154. As such, when
we refer to Brady materials in this opinion, we include Giglio
impeachment evidence.
19
At this time, the media outlets intervened in the case and
submitted briefs challenging the sealing. The media companies
asserted that the public had a significant interest in information
about Agent Orsini, a key figure in the government’s investigation
and prosecution of Wecht. In addition, the media outlets argued
that the public had an interest in the legal process that took place,
including the government’s application to withhold the documents
and the related rulings of the District Court.
The District Court concluded that the government had failed
to demonstrate why the documents should remain sealed and that
the “integrity of this public proceeding” required that the public
have access to the Orsini records. JA 44. In addition to ordering
the unsealing of the Orsini records,16 the Court modified the
protective order by eliminating its reference to the records.
However, the Court stayed its order to permit the government to
appeal.17 The government now argues that the District Court erred
because the public does not have a First Amendment or common
law right to access the materials.
The District Court’s opinion to unseal the records does not
explicitly state on what grounds it based its decision. The Court
stated that the government had failed to demonstrate “a compelling
interest or good cause to justify the continual sealing,” but it did
not expressly hold that the public had a First Amendment or
common law right to the documents. Id. We believe both (1) that
the public has a common law right to the Orsini records, and (2)
16
Although we focus our discussion on the Orsini records
which were attached as exhibits to the government’s in camera
motion, our holding applies to the motion papers as well. The
District Court explained that the motion summarized the
information in the personnel records, and the government has not
argued that we should separately continue the seal of its motion if
we affirm the unsealing of the records.
17
The media outlets have appealed the District Court’s
decision to stay its unsealing order. We do not believe the Court
abused its discretion under the standard we established in Republic
of Philippines v. Westinghouse Elec. Corp., 949 F.2d 653, 656 (3d
Cir. 1991).
20
that the decision to unseal the records was appropriate pursuant to
the trial court’s general discretionary powers.18
1. The Public’s Common Law Right To Access Judicial
Documents
We have previously noted that, “[i]t is well-settled that there
exists, in both criminal and civil cases, a common law public right
of access to judicial proceedings and records.” Goldstein v. Forbes
(In re Cendant Corp.), 260 F.3d 183, 192 (3d Cir. 2001); see also
United States v. Criden, 648 F.2d 814, 819 (3d Cir. 1981) (“[T]he
courts of this country recognize a general right to inspect and copy
public records and documents, including judicial records and
documents.”).19 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. See In re Capital
Cities/ABC, Inc., 913 F.2d 89, 92 (3d Cir. 1990); United States v.
Smith, 787 F.2d 111, 113 (3d Cir. 1986).
The public’s common law right to access judicial records “is
18
In his concurrence, our colleague criticizes the District
Court’s initial sealing of the records. We do not address this issue
because none of the parties challenge the initial sealing on appeal.
19
The parties also dispute whether the media outlets have a
First Amendment right to the Orsini records. Courts determine
whether the public has a qualified First Amendment right to
documents by considering first whether the “process ha[s]
historically been open to the press and general public,” and second,
“whether public access plays a significant positive role in the
functioning of the particular process in question.” Press-Enterprise
Co. v. Superior Court of Cal., County of Riverside, 478 U.S. 1, 8
(1986); see also United States v. Smith, 776 F.2d 1104, 1112 (3d
Cir. 1985) (explaining that cases such as Press Enterprise apply to
judicial documents as well as judicial proceedings). Because we
find that a common law right of access attaches to the Orsini
records, we need not engage in the First Amendment analysis. See
Gulf Oil Co. v. Bernard, 452 U.S. 89, 99 (1981) (“[P]rior to
reaching any constitutional questions, federal courts must consider
nonconstitutional grounds for decision.”); United States v. Smith,
787 F.2d 111, 113 n.1 (3d Cir. 1986).
21
not absolute.” Littlejohn, 851 F.2d at 678. Instead, when the right
exists, there is a “strong presumption” that the public may view the
records. See, e.g., Bank of Am. Nat’l Trust & Sav. Ass’n v. Hotel
Rittenhouse Assocs., 800 F.2d 339, 344 (3d Cir. 1986). When
parties assert that the need for confidentiality outweighs this strong
presumption, we trust trial courts to fairly balance the interests at
stake. Here, the government concedes that if a common law right
exists, it “has failed to justify precluding the court from disclosing
the information.” Resp. & Reply Br. at 27. Accordingly, the only
question before us is whether the public has a common law right to
the Orsini records.
In general, the common law right attaches to any document
that is considered a “judicial record,” which “depends on whether
[the] document has been filed with the court, or otherwise
somehow incorporated or integrated into a district court’s
adjudicatory proceedings.” Goldstein, 260 F.3d at 192; see also
United States v. Martin, 746 F.2d 964, 968 (3d Cir. 1984) (“The
common law right of access is not limited to evidence, but rather
encompasses all judicial records and documents. It includes
transcripts, evidence, pleadings, and other materials submitted by
litigants . . . .”) (citation and internal quotation marks omitted).
The government argues, however, that the Orsini records are
discovery materials that cannot be subject to the common law right
of access. The government notes that discovery traditionally has
been conducted by the parties in private and has not been
publically available. See, e.g., 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.”); United States v. Smith, 776 F.2d 1104,
1111 (3d Cir. 1985) (holding that “the common law right of access
. . . extend[s] to bills of particulars because we think them more
properly regarded as supplements to the indictment than as the
equivalent of civil discovery”); United States v. Anderson, 799
F.2d 1438, 1441 (11th Cir. 1986) (“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.”).
When discovery materials are filed with the trial court, the
private nature of discovery comes into conflict with the public’s
22
right to access judicial records. We considered such a situation in
Leucadia, Inc. v. Applied Extrusion Technologies, Inc., 998 F.2d
157 (3d Cir. 1993), where a party had attached discovery materials
to a motion filed with the court. After discussing the benefits and
disadvantages of extending the common law right to such
materials, we concluded that “there is a presumptive [common law]
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.” Id. at 165. In other words,
documents filed with the court are generally subject to the common
law right of access, unless attached to a discovery motion.
The government argues that the Orsini records fall within
the exception we established in Leucadia because they were filed
with a motion for in camera review. According to the government,
Brady materials constitute discovery and the motion for in camera
review is therefore a discovery motion. The government notes that
we have previously referred to materials that must be disclosed as
part of the government’s constitutional obligations as “discovery
materials.” United States v. Bocra, 623 F.2d 281, 285 (3d Cir.
1980); see also In re Capital Cities/ABC, Inc., 913 F.2d at 91
(describing “material that was possibly subject to discovery by the
defendants under Brady”). And the government is correct that
Brady materials are like discovery in that information is shared in
preparation for trial through a process that is generally private and
does not involve the court.
At the same time, obligations under Brady are governed not
by rules of procedure but by the Constitution. See United States v.
Kaplan, 554 F.2d 577, 579 (3d Cir. 1977) (“The rule of Brady v.
Maryland is founded on the constitutional requirement of a fair
trial, binding on both state and federal courts. It is not a rule of
discovery.”). In addition, Brady materials, unlike civil discovery,
are turned over by the government to the defense during its
prosecution of alleged criminals on behalf of the public. Although
we are guided by our reasoning in Leucadia, we believe that the
unique nature of Brady materials prevents us from seamlessly
applying the discovery–nondiscovery dichotomy that Leucadia
established in the civil context.
23
The government has argued that we would cripple the in
camera process for potential Brady materials if we hold that the
common law right of access attaches to the Orsini records. We
acknowledge that the implications of extending the common law
right to documents submitted for in camera review “are unclear,
and this alone should counsel restraint.” Leucadia, 998 F.2d at
165. Nevertheless, we believe that under the particular
circumstances of this case, the public does have a common law
right to access the Orsini records.
First, the Orsini documents were filed with the motion for
in camera review which “clearly establishes” them as judicial
records. Goldstein, 260 F.3d at 192. Second, the District Court
evaluated the potential relevance of the Orsini records and
determined that they must be disclosed to the defense as possible
impeachment evidence. Public access to judicial determinations
“provid[es] the public with a more complete understanding of the
judicial system,” and “promotes the public perception of fairness.”
Criden, 675 F.2d at 556 (internal quotation marks omitted); see
also Littlejohn, 851 F.2d at 678 (“[T]he bright light cast upon the
judicial process by public observation diminishes possibilities for
injustice, incompetence, perjury, and fraud.”); Hotel Rittenhouse,
800 F.2d at 344 (“The court’s . . . action on a motion [is a] matter[]
which the public has a right to know about and evaluate.”).
Third, the process by which the government investigates and
prosecutes its citizens is an important matter of public concern.
See Criden, 675 F.2d at 557 (noting that the public has a “vital
interest in evaluating the public officials who work in the criminal
justice system”). This distinguishes Brady materials from
traditional civil discovery between private parties. Fourth, there
can be little question that the particular documents at issue here are
of significant interest to the public. The records concern the
conduct of an FBI official who played a prominent role in a highly
publicized investigation of a well-known defendant accused of
abusing his public office. While the probative value of the
documents is open to debate, they are of at least some relevance to
Wecht’s repeated assertions that Agent Orsini lacks veracity and
that his affidavits in support of the search warrants were “infected
with his deliberate and reckless falsehoods.” App. 67.
24
Finally, we believe the records were relevant to Wecht’s
suppression motion. There is little doubt that Wecht would have
cited the Orsini records in his papers had he possessed them at the
time he filed his suppression motion.20 Indeed, the suppression
motion discussed Orsini’s alleged lack of veracity and previous
“involve[ment] in improprieties.” App. 68. Further, we take
McDevitt at his word that he wanted to use the records to impeach
Orsini at the suppression hearing, but that he believed the District
Court had prohibited him from doing so.21 In fact, the government
was “surprised” that defense counsel did not cross-examine Orsini
with the records, Tr. 114, and it concedes that the documents would
be publicly available had they been attached to the suppression
motion or used at a public hearing. We think it likely that the
District Court would have permitted Wecht to use the records, but
even a ruling prohibiting their use would have constituted yet
another important judicial decision that the public would have had
an interest in evaluating. For these reasons, we conclude that the
public has a common law right to access the Orsini records.
The government has suggested that allowing public access
to Brady documents filed with the trial court for in camera review
might result in less production of such material by the government
going forward. Because we trust that the government will continue
to fulfill its constitutional obligations diligently and with an
abundance of caution, we find little merit to this argument. In
addition, our decision today is based on the particular facts of this
20
The suppression motion was filed after the government’s
application to file an “underlying motion” under seal but before the
filing of the motion for in camera review.
21
Whether McDevitt could have in fact used the documents
at the suppression hearing was hotly disputed by the parties at oral
argument. The government has asserted that McDevitt did not
even attempt to use the records at the suppression hearing. As
discussed at greater length below in Section 3.C of this opinion, we
believe the source of this controversy stems from confusion about
the scope of Wecht’s May 26 application to use the records and the
Court’s June 2 order denying that application.
25
case. We certainly do not suggest that the common law right
attaches when district courts determine that the government need
not disclose materials. As one of our sister courts of appeals has
noted, “[g]ranting the public access to . . . undiscoverable
documents would furnish it with materials that do not bear on the
merits of the trial to which the public has a right of access and
would, in effect, give the defendant the discovery to which the
court has ruled he is not entitled.” United States v. Wolfson, 55
F.3d 58, 61 (2d Cir. 1995).
2. The Discretion of District Courts To Amend Protective
and Sealing Orders
We also believe it would have been proper for the District
Court to unseal the records pursuant to its general discretionary
powers. Generally, documents filed with a trial court are available
for both the opposing party and the public to view. Because the
government’s motion concerned its obligation to turn over certain
materials to the defense, it asked for permission to file its papers
under seal. This meant that although the motion would be noted on
the docket, the defense and public would not be able to view the
filed papers or learn their contents.
The Court ultimately ordered the government to turn over
copies of the materials to the defense but allowed it first to move
for a protective order; otherwise, Wecht could have disseminated
the information to the public. After briefing, the Court issued a
protective order prohibiting the defense from reproducing or
disseminating the records, or from disclosing their contents in open
court. Upon intervention by the media outlets, the Court
reconsidered the various interests at stake, and determined that the
records should be unsealed and the protective order modified. The
District Court determined that there was not “good cause” for
keeping the records sealed or for preventing their dissemination.
We believe the District Court acted well within its authority, and
that it certainly did not abuse its discretion.
Courts may issue protective orders “for good cause” under
Rule 16 of the Federal Rules of Criminal Procedure. See also
Pansy, 23 F.3d at 786 (noting in the civil context that “it is
26
well-established that a party wishing to obtain an order of
protection over discovery material must demonstrate that ‘good
cause’ exists for the order of protection”) (quoting Fed. R. Civ. P.
26(c)). “Good cause is established on a showing that disclosure
will work a clearly defined and serious injury to the party seeking
closure. The injury must be shown with specificity. Broad
allegations of harm, unsubstantiated by specific examples or
articulated reasoning, do not support a good cause showing.” Id.
(citation and internal quotation marks omitted). The good cause
determination must also balance the public’s interest in the
information against the injuries that disclosure would cause. Id. at
787-91.
In Cipollone v. Liggett Group, Inc., 785 F.2d 1108 (3d Cir.
1986), we explained that when there is an umbrella protective order
“the burden of justifying the confidentiality of each and every
document sought to be covered by a protective order remains on
the party seeking the protective order.” Id. at 1122. We later
stated in Leucadia that “our reasoning applies with equal force
when a non-party moves to intervene in a pending or settled lawsuit
for the limited purpose of modifying a protective order and
inspecting documents filed under seal.” 998 F.2d at 166. Here,
once the defense had viewed all the relevant material and the media
outlets had intervened, it was proper for the District Court to
consider whether there was good cause for continuing the sealing
and protective orders. See Pansy, 23 F.3d at 790 (“The appropriate
approach in considering motions to modify confidentiality orders
is to use the same balancing test that is used in determining
whether to grant such orders in the first instance . . . .”). At that
stage, the sealing order prevented direct public access to the
documents while the protective order prohibited defense counsel
from disseminating the information to the public.
District courts should balance the relevant interests
irrespective of whether the public has a First Amendment or
common law right to the materials. In Pansy, we rejected the
argument of intervenor newspapers that the public had a right of
access to a settlement agreement the parties had not filed and the
district court had not enforced. 23 F.3d at 782-83. But we then
considered whether the district court’s confidentiality order over
the settlement agreement should be vacated or modified
27
“independent of the right of access doctrine.” Id. at 783. We
remanded on that issue, noting that the party seeking
confidentiality must demonstrate good cause and that the district
court must balance the interests at stake. Id. at 783-90, 792.
Also, in Leucadia, we refused to extend the common law
right of access to civil discovery motions but noted that the Federal
Rules of Civil Procedure already provided “a source of law for the
normative rules governing public access to discovery materials.”
998 F.2d at 165. See also Phillips ex rel. Estates of Byrd v. Gen.
Motors Corp., 307 F.3d 1206, 1212 (9th Cir. 2002) (“If . . . the
[district] court finds ‘good cause’ exists to protect this information,
then it must determine whether the Los Angeles Times has a right
to Exhibit 8 under the common law right of access, a separate and
independent basis for obtaining this information.”); SEC v.
TheStreet.com, 273 F.3d 222, 234 (2d Cir. 2001) (explaining that
although there was no public right of access, the district court still
“could reasonably conclude, in the exercise of its informed
discretion, that . . . the intervention of a media enterprise for the
limited purpose of gaining access to the sealed documents required
the striking of a new balance between privacy rights and the
interest of the general public”). Although the party seeking to
prevent disclosure bears the burden of demonstrating good cause,
the balancing does not include the “strong presumption” in favor
of access that occurs upon a finding of a common law right.22
The District Court noted that the records had been analyzed
in its various rulings and that concerns had been raised about
tainting the jury pool and discouraging the use of in camera
review. Nevertheless, the Court concluded that the “integrity of
this public proceeding” required disclosure of the documents, and
that the government had failed to demonstrate “a compelling
22
Some of our previous cases might suggest that the good
cause standard should be applied only after a finding that there is
a common law right of access. See, e.g., Leucadia, 998 F.2d at
166-67. Although the same interests must be balanced in either
context, demonstrating good cause in the absence of a common law
right does not require overcoming a strong presumption in favor of
public access.
28
interest or good cause to justify the continual sealing.” JA 44.
(emphasis added). Although the District Court could have
explained its reasoning more fully, we believe the opinion
demonstrates that it sufficiently considered and weighed the
relevant interests at stake. Unless the appellant can demonstrate an
abuse of discretion, it is not our role to second guess the District’s
Courts weighing of the competing considerations. See Rhinehart,
467 U.S. at 36 (noting that the trial judge “is in the best position to
weigh fairly the competing needs and interests of parties affected
by discovery”). Accordingly, we affirm the District Court’s
decision that good cause did not justify the continuance of the
sealing and protective orders.
C. Petition for Disqualification of the District Court Judge
In June 2006, Wecht filed a motion requesting that the Judge
recuse himself from the case. The Judge denied the motion, and
Wecht now seeks a writ of mandamus ordering the Judge’s
disqualification. Wecht contends that the Judge’s management of
the case, comments to counsel, and rulings demonstrate bias or
create the appearance of bias. Specifically, Wecht argues that:
1. The Judge improperly engaged in ex parte
communications with the government about
the Orsini records.
2. The Judge has issued several suspect orders
concerning Agent Orsini.
3. The Judge entered an order that “effectively
repealed the rules of evidence” and “admitted
at one fell swoop over 240,000 pages of
prosecution evidence.” Wecht Pet. at 2.
4. The Judge has exhibited antagonism towards
defense counsel through threats of contempt
and personal attacks.
5. The Judge has denied defense motions
without sufficient analysis or explanation.
29
6. The Judge improperly reviewed materials that
were not offered into evidence at the
suppression hearing.
7. The Judge has inappropriately borrowed case
management techniques from civil law.
8. The Judge has “prejudged” the case.
Wecht seeks recusal of the District Court Judge under two
provisions of the federal recusal statute, 28 U.S.C. § 455(a) and §
455(b)(1). Section 455(a) states that “[a]ny justice, judge, or
magistrate judge of the United States shall disqualify himself in
any proceeding in which his impartiality might reasonably be
questioned.” “The test for recusal under § 455(a) is whether a
reasonable person, with knowledge of all the facts, would conclude
that the judge’s impartiality might reasonably be questioned.” In
re Kensington Int’l Ltd., 353 F.3d 211, 220 (3d Cir. 2003). Section
§ 455(b)(1), in relevant part, requires recusal when the Judge has
“personal knowledge of disputed evidentiary facts concerning the
proceeding.” We review the District Court Judge’s application of
these standards for abuse of discretion. In re Antar, 71 F.3d 97,
101 (3d Cir. 1995).
Wecht cites to a number of judicial rulings and comments
made during this case, but he does not assert that there are
extrajudicial sources—defined as “source[s] outside of the official
proceedings”—requiring the Judge to recuse himself. United
States v. Bertoli, 40 F.3d 1384, 1412 (3d Cir. 1994). The Supreme
Court stated in Liteky v. United States, 510 U.S. 540 (1994), that
“[i]t is wrong in theory, though it may not be too far off the mark
as a practical matter, to suggest, as many opinions have, that
‘extrajudicial source’ is the only basis for establishing disqualifying
bias or prejudice.” Id. at 551. When a party does not cite to
extrajudicial sources, the Judge’s opinions and remarks must reveal
a “deep-seated” or “high degree” of “favoritism or antagonism that
would make fair judgment impossible.” Id. at 555-56.
Wecht has raised a number of complaints about the Judge’s
remarks, practices, and rulings. We have grouped Wecht’s
allegations into five categories and discuss them below in the
30
following order: the ex parte practices of the Judge; the Judge’s
general management of exhibits and evidentiary objections; rulings
concerning Agent Orsini; the Judge’s examination of materials
after the suppression hearing; and the Judge’s antagonism towards
defense counsel.
1. Ex Parte Practice
Wecht first asserts that the District Court Judge improperly
engaged in ex parte communications with the government about
the Orsini records and otherwise inappropriately handled motions
regarding the records. It is important at the outset to clarify what
these “communications” are. Wecht has not alleged that the Judge
met with government attorneys or otherwise discussed matters in
the case with them outside the presence of defense counsel.
Instead, Wecht complains that the government filed an ex parte
motion and that the District Court issued an ex parte ruling.
Wecht is correct that, in general, ex parte proceedings are
disfavored. However, there are a number of circumstances where
ex parte applications to the court are appropriate, and Wecht
appears to overlook our previous statements endorsing the in
camera inspection of materials that may need to be turned over to
the defense. We have, for example, stated that “[t]he submission
of discovery materials to the court for an in camera inspection and
decision as to which materials are discoverable is commonly used
when the Government’s need for preserving confidentiality over
the materials must be balanced with the defendant’s constitutional
right to evidence material to his defense.” Bocra, 623 F.2d at 285.
And in United States v. Dent, 149 F.3d 180, 191 (3d Cir. 1998), we
held that “[t]he district court’s in camera inspection of [a police
officer’s] personnel files fully satisfied Brady’s due process
requirements.”
To be fair, much of Wecht’s frustration is directed at the
process the District Court Judge followed in evaluating and ruling
on the Orsini records. Although the government filed its
application for permission to submit an “underlying motion” under
seal, Wecht was provided with no information about the content of
the motion. When defense counsel asked at a status conference the
next day how he was to respond to the motion, the Court replied
31
“[y]ou are not.” JA 262. Later that day, the Court issued an ex
parte ruling that appears on the docket as only an order on the
government’s sealed motion without indicating the disposition.
Certainly, the District Court could have provided Wecht with more
information about the process without revealing the contents of the
documents. But we fail to see any evidence of bias in the Court’s
failure to provide that information.
Two other facts undercut any suggestion of bias in the Judge’s
treatment of the Orsini records. First, the Judge rejected the
government’s argument that it need not turn over the Orsini records
to the defense. Wecht argues that because the records were
relevant to his April 7 suppression motion, the Judge should have
ordered their immediate disclosure instead of allowing the
government to move for a protective order. Perhaps the
government should have applied for the protective order more
quickly or the Judge should have required it,23 but defense counsel
received the documents in plenty of time to supplement the
suppression motion or use the records at the June 8 suppression
hearing.24 Defense counsel would not have been able to use the
information in their initial April 7 motion even had the Judge
ordered immediate disclosure.
Second, the Judge discussed at some length the ex parte and
sealing process with the parties at the May 12 status conference.
The Judge listened to defense counsel’s complaint that the “cursory
descriptions” of motions to seal on the docket provided insufficient
information. The Judge encouraged the government and the
23
Wecht also faults the Judge for inviting the government to
apply for a protective order and for allegedly preordaining that it
would be granted. The government’s sealed motion, however,
requests that the Judge issue a protective order if the government
was required to disclose the records. The Judge’s April 7 ruling
orders the government to consult with defense
counsel—presumably in hopes of agreement—and then formally
apply for a protective order.
24
Whether the defense was precluded from using the
documents at the suppression hearing is a separate issue that we
discuss below.
32
defense to confer and come up with an agreed upon protocol for
sealing motions going forward. Later in the hearing, the Judge
listened to the arguments of the media and expressed his
willingness to improve the process. On May 17, the Judge issued
an order establishing a new protocol that accounted for all of the
parties’ concerns. For these reasons, we discern no bias in how the
Judge handled the government’s motion regarding the Orsini
records.25
2. Management of Exhibits and Objections
Wecht’s complaints about the Judge’s management of
exhibits stem from the March 1 Pretrial Order, which included
schedules and deadlines for pretrial motions and discovery.
Section 3(c) ordered the government to provide defendant with
exhibits “it intend[ed] to use at trial” by April 21, while defense
counsel was to “preliminarily designate” its exhibits by May 5. JA
48. Counsel were to meet on or before May 11 “in an effort to
agree upon the admissibility of joint exhibits,” and jointly provide
the Court with an exhibit binder and chart indicating objections to
exhibits by May 15. JA 49. The Court would then address the
objections at or before conferences scheduled for June 7 and 8. Id.
Both the government and the defense participated in the drafting of
25
We do not disagree with the dissent that the submission of
potential Brady materials for in camera review along with papers
advocating the government’s position may present trial judges with
a one-sided view. See, e.g., Pennsylvania v. Ritchie, 480 U.S. 39,
60 (1987) (noting that in camera review of materials can help
ensure a fair trial even though it may deny the defendant “the
benefits of an ‘advocate’s eye’”); United States v. Dupuy, 760 F.2d
1492, 1501 (9th Cir. 1985) (noting that a “prosecutor satisfied her
duty to disclose exculpatory material” when she submitted certain
notes to the trial judge and “discussed with him the reasons to keep
the notes confidential”). This appeal, however, does not require us
to address whether the government’s submission was appropriate.
Instead, we are only presented with the question of whether the in
camera review in this case reveals bias, or creates an appearance
of bias, on the part of the District Court, and we do not believe it
does.
33
the Pretrial Order and it was adopted with no objections from
defendant.
Problems arose, however, on April 21 when the government
provided a preliminary list of more than 1350 exhibits. The
exhibits comprised more than 240,000 pages of documents in an
electronic database. This was apparently far in excess of what the
defense had anticipated. According to Wecht, about 300,000 pages
of documents had been provided in the course of discovery, and the
government had previously estimated that “probably 5 percent” of
the exhibits would eventually be offered at trial. App. 731.
The government acknowledged that what they provided on
April 21 was “a preliminary exhibit list.” Gov. App. 165. Wecht
believed this did not comply with the Pretrial Order which required
that the government provide exhibits it “intend[ed] to use at trial.”
At an April 28 conference, the Judge stated that the government’s
production was appropriate and that he expected the parties to “sit
down together” and draft the necessary summaries and stipulations
of fact to significantly narrow the number of exhibits. Gov. App.
175.
In addition to the dispute over the government’s compliance
with the Pretrial Order, there was (and continues to be)
fundamental disagreement about how long it should have taken
defense counsel to review the government’s exhibits. Defense
counsel stated that its firm was printing out each of the exhibits and
that it would be impossible to review them in the time allotted.
The Court, as well as the government, wondered why printing these
documents was necessary when it had been agreed that the exhibits
should be scanned and provided in electronic form. Further,
because the Judge personally reviewed each of the exhibits in the
database, he did not credit defense counsel’s statements that
printing was required. While we are not in a position to resolve
this dispute, we do note that more effective communication
between defense counsel and the Judge might have yielded a
resolution acceptable to all parties. Instead, it appears no one
offered sensible suggestions as to how the Pretrial Order could be
modified without affecting the trial date.
On May 11, the government and defense met to discuss the
34
exhibits but the meeting did not last long and accomplished little.
At the May 12 conference, defense counsel described the
government’s exhibits as a “mess” and explained that Wecht would
reserve objections until he understood “the basis for the
[g]overnment’s proffer on all of these documents.” App. 763. The
Judge expressed his displeasure with the failure of the parties to
agree on joint exhibits and stated that, if necessary, he would go
through each of the exhibits in court. He then scheduled four days
of hearings in early June for this purpose and stated “I do think this
is the time for the [g]overnment to decide really which are the
exhibits and which aren’t.” Gov. App. 194-95.
On May 15, the government submitted an exhibit list to the
Court, including each of its more than 1350 exhibits, and noted that
the defense had objected to all of them. The government also
indicated that it consented to the admission of five of Wecht’s
exhibits, but set forth specific objections to thirty others. The
defense did not submit any materials or specific objections to the
Court, nor did they seek an extension of time to do so. It is
possible, however, that defense counsel believed the discussion at
the May 12 conference meant the May 15 deadline no longer
applied. Immediately after counsel stated that he reserved
objections until he understood the basis for each exhibit, the Court
stated: “Okay, fine. We will do it here in court one by one . . . .”
App. 763. But after the May 15 deadline passed, the Judge
explained that all along he had still expected defense counsel to
submit specific objections to exhibits by May 15. The Judge
planned to use the exhibit chart to examine objections and make
initial rulings, leaving for the June hearings only those exhibits he
had questions about.
Though it is possible that defense counsel willfully violated
the Pretrial Order, we believe it more likely that there was
confusion following the May 12 conference. It appears the Judge
and counsel did not communicate effectively about the exact
process that was to take place regarding the government’s exhibits.
While defense counsel should have sought clarification of that
process at the May 12 conference or subsequently in writing, the
Judge should have more clearly expressed his expectations in light
of the scheduling of four days of hearings in June.
35
At a minimum, we believe the Court should have sought an
explanation from defense counsel for missing the May 15 deadline
before issuing what appeared to be a drastic order on May 17. In
that order, the Court stated that because it had not received
“specific objection[s]” from defendant, all of the government’s
exhibits were “admitted into evidence, subject only to possible
relevancy objections . . . which may result solely from future
rulings on the Motion to Suppress or any Motion to Dismiss.”
App. 232 (citation omitted). Wecht moved for reconsideration of
this order and later for modification of the Pretrial Order. On June
14, the Judge issued an opinion that did not grant these motions,
but that ruled on specific evidentiary objections submitted by
Wecht one week before.26 Wecht has characterized the May 17
order as a “suspension of the rules of evidence.”
Frankly, we think it was improper for the Judge to admit
thousands of pages of materials wholesale into evidence, especially
when the government had acknowledged that its list of exhibits was
preliminary. If this was not the Judge’s intention, he should have
subsequently modified his order to clarify its scope. We believe
his evidentiary order created unnecessary argument and confusion
instead of advancing the goals of the pretrial order to move the case
swiftly and fairly toward trial. Nevertheless, his subsequent rulings
on objections make clear that he did not in fact suspend the rules
of evidence.
It is important to note that district courts have wide
discretion in the management of their cases. See, e.g., Yakowicz
v. Pennsylvania, 683 F.2d 778, 784 (3d Cir. 1982) (referring to the
“broad powers with respect to timing and other considerations that
[the district court] has generally in the management of the cases
before it as they proceed through the various stages before and
during trial”); Titus v. Mercedes Benz of North Am., 695 F.2d 746,
751 (3d Cir. 1982) (“[B]road discretion should be accorded district
courts in the management of their calendars.”). Further, “opinions
formed by the judge on the basis of facts introduced or events
26
Citing to a number of comments in the June 14 opinion,
Wecht claims his motion to reconsider “only drew the court’s ire.”
Wecht Pet. at 33. We examine these complaints below in
subsection 5.
36
occurring in the course of the current proceedings, or of prior
proceedings, do not constitute a basis for a bias or partiality motion
unless they display a deep-seated favoritism or antagonism that
would make fair judgment impossible.” Liteky, 510 U.S. at 555.
While we are somewhat puzzled by some of the District Court’s
actions in managing exhibits, we do not believe they display bias,
much less the degree of favoritism or antagonism that is required
for recusal.27
3. Rulings and Orders
Wecht has also alleged that a number of rulings in this case
demonstrate bias on the part of the District Court Judge. We note
at the outset that “judicial rulings alone almost never constitute a
valid basis for a bias or partiality motion. . . . [They] can only in the
rarest circumstances evidence the degree of favoritism or
antagonism required . . . when no extrajudicial source is involved.
Almost invariably, they are proper grounds for appeal, not for
recusal.” Liteky, 510 U.S. at 555. We will not discuss each of the
rulings Wecht cites other than to note that they are not grounds for
recusal.
However, because the ability of defense counsel to use the
Orsini records at the suppression hearing has been the source of
such fundamental disagreement, we do believe it merits some
discussion. This dispute was particularly evident at oral argument
where defense counsel stated that the government was “utterly
disingenuous” in suggesting that the documents could have been
used at the suppression hearing. Tr. 125. On May 26, defense
counsel requested permission to file a sealed motion indicating
which statements from the records they would like to use in future
27
Wecht also asserts that the District Court’s use of
innovative case management techniques borrowed from civil law
violates his right to due process. We agree with our dissenting
colleague that trial judges managing criminal cases must take into
account constitutional and other safeguards that are not at issue in
civil matters. Wecht, of course, may later appeal any rulings that
he believes violated his rights, but he has failed to explain how the
District Court’s use of civil management techniques demonstrates
any bias.
37
proceedings relevant to “pending motions, including the right of
access issues raised by the media as well as the suppression
hearing.” JA 371-72. The District Court denied the motion on
June 2 stating that “to grant said motion would disclose at the very
argument certain information in [the Orsini records] relating to the
issue of whether [the records] should be unsealed.” JA 93.
At the time of the Court’s ruling, there were two hearings
pending: the June 5 argument on whether the Orsini records should
be unsealed and the June 8 suppression hearing. The language of
the June 2 order suggests that the Court was addressing only the
first of these hearings; the Judge logically believed it made no
sense to unseal portions of the records when that was the exact
question before him on June 5. Defense counsel, by contrast,
interpreted this order as preventing him from using the records at
the suppression hearing as well. Although the Court’s lack of
specificity presumably created this confusion, defense counsel
should have sought clarification either before the suppression
hearing or at sidebar during it.
4. Examination of Box 20
On May 31, the District Court denied much of Wecht’s
suppression motion but scheduled a hearing for June 8 to address
the seizure of boxes at Wecht’s private office, including “Box 20.”
Wecht argued that the only issue was whether this box’s label,
“Wecht Law Firm,” placed it outside the scope of the warrant. The
Judge apparently reviewed the box’s contents after the hearing
without defendant’s knowledge. Wecht asserts that the Judge’s
examination of the box’s contents not only creates an appearance
of bias under § 455(a), but also constitutes “personal knowledge of
disputed evidentiary facts concerning the proceeding” under §
455(b)(1).
The District Court apparently had access to the contents of
the box when the government provided the Court with the
electronic database of exhibits on May 15. Wecht may be right that
the label on the box, and not its contents, is the only relevant issue
when determining whether the agents acted within the scope of the
warrant. Perhaps the Judge should have made clear that he
intended to review the actual contents of the box in order to
38
provide defense counsel an opportunity to comment. Wecht may
have grounds upon which to appeal the Judge’s ruling on his
suppression motion, but there is no evidence the Judge was biased.
Nor do we believe the Judge’s actions create an appearance of bias.
Furthermore, we do not believe the Judge’s review of the
box’s contents requires recusal under § 455(b)(1) because, as the
government notes, the Judge’s knowledge was not “personal” in
nature. The documents had been presented as exhibits and were
available to all parties at the time the Judge reviewed them. In
other words, the Judge’s knowledge about the documents did not
derive from a source outside the proceedings.
5. Antagonism Toward Defense Counsel
a. Threats of Contempt
Wecht’s claim that the Judge has “threaten[ed] counsel with
criminal contempt on five occasions” distorts the record. Wecht
Pet. at 47. In particular, Wecht first cites to the Judge’s discussion
of Local Rule 83.1 in his June 8 opinion, but there is no mention of
contempt other than in the Judge’s description of the facts of
another case. Wecht also cites to the May 12 conference where the
Judge stated that “if any counsel believes the opposing counsel is
violating the order of the Court and/or the local rule, they should
file a motion to have the opposing counsel adjudged in civil
contempt and I will hold a hearing.” App. 771. We do not believe
it is fair to characterize this as a threat of contempt and certainly
not as a threat directed at a particular party.
Nevertheless, the Judge did announce in his June 14 opinion
that there would be a hearing after the trial to determine if defense
counsel’s violations of the Pretrial Order constitute contempt.28 In
28
The other two examples cited by defendant also concern
the same violations of the Pretrial Order. In a May 17 order, the
Judge stated that a future hearing would determine if defense
counsel had acted in good faith when meeting with the government
on May 11 to discuss exhibits. Wecht’s final example, which
certainly cannot be characterized as a threat, is the Judge’s July 20
recusal opinion in which he states that defense counsel would have
39
his recusal opinion, the Judge specified that defense counsel had
violated the order by failing to (1) meaningfully confer with the
government on May 11 about exhibits; (2) work with the
government on a trial exhibit list; (3) file objections to exhibits by
May 15; (4) prepare properly for the June 7 conference; and (5)
make good faith objections.29
Defense counsel does not believe they violated the Pretrial
Order and they assert that any missed deadlines were caused by the
voluminous exhibits provided by the government. However, the
dispute over whether violations occurred, or if those violations rise
to the level of contempt, is not one for us to resolve at the moment.
As the District Court noted, defense counsel may appeal any future
adverse contempt rulings. For now, we simply note that the
District Court’s actions with respect to contempt do not exhibit the
level of bias necessary for recusal. Certainly, we do not approve
of the practice of scheduling contempt proceedings in the midst of
a hard fought case without immediately resolving the issue. It is
possible that the shadow of such punishment may chill the zealous
advocacy of defense counsel. But the circumstances surrounding
the threat of contempt in this case does not “display a deep-seated
favoritism or antagonism that would make fair judgment
impossible.” Liteky, 510 U.S. at 555. Our view might be different
if contempt had been mentioned in a wide variety of contexts or in
response to, for example, good faith motions in the defense of a
client. Here, however, the possible violations are limited to the
handling of exhibits and related deadlines in the Pretrial Order. We
do not believe this merits recusal.
b. Antagonistic Comments
Defense counsel also asserts that the Judge has made a
the opportunity to appeal any adverse contempt ruling.
29
In the June 14 order, it was not clear which alleged
violations the Court had in mind because the Court cites to a Fourth
Circuit case that involved an attorney found to be in contempt for
making statements in violation of a local rule that mirrors Local
Rule 83.1. The recusal opinion, however, clarifies the District
Court’s views on the matter.
40
number of inappropriate statements attacking them. According to
Wecht, these include: quoting from the defense firm’s website to
suggest that counsel were fully capable of reviewing the
government’s exhibits in the time provided by the schedule;
criticizing defense counsel for filing dispositive motions earlier
than required; stating that constitutional challenges to the public
corruption charges were “without merit”; accusing defense counsel
of impugning Senior District Judge Maurice Cohill; and referring
to defense counsel’s arguments concerning Stephen Zappala as
“breathless accusations.” Wecht Pet. at 48-50.
The comments Wecht cites do not demonstrate an
appearance of bias. The Supreme Court has explained that remarks
that are critical or disapproving of, or even hostile to,
counsel, the parties, or their cases, ordinarily do not
support a bias or partiality challenge. They may do
so if they reveal an opinion that derives from an
extrajudicial source; and they will do so if they
reveal such a high degree of favoritism or
antagonism as to make fair judgment impossible. . .
. Not establishing bias or partiality . . . are
expressions of impatience, dissatisfaction,
annoyance, and even anger, that are within the
bounds of what imperfect men and women, even
after having been confirmed as federal judges,
sometimes display.
Liteky, 510 U.S. at 555-56. We believe Wecht has failed to
demonstrate the “high degree of favoritism or antagonism” that is
required under Liteky.
The District Court’s statements that some of defense
counsel’s assertions were “without merit” or “breathless
accusations” are assessments relevant to the case, whether they are
correct or not. The claim that the District Court Judge accused
counsel of “impugning Judge Cohill” represents a skewed and
unfair reading of the record. In response to Wecht’s claim that he
demonstrated bias in handling jury questionnaires, the District
Court Judge merely explained that he was following the practice of
Judge Cohill, “a distinguished jurist,” and that he did not believe
41
doing so “constitute[d] bias or lack of impartiality.” App. 684.
We also do not credit defense counsel’s claim that the Judge
“chastised” counsel for filing dispositive motions earlier than
required. Wecht Pet. at 48. The District Court Judge was
frustrated with defense counsel for not objecting to the
government’s exhibits in accordance with the schedule in the
Pretrial Order, and believed counsel had filed motions in lieu of
working on the exhibits.
We find the extensive quoting from defense counsel’s
website more troublesome. For more than a page in his written
opinion, the Judge quoted passages from the website, including a
paragraph touting the firm’s intellectual property and technology
practice, as well as more general promotional statements such as
“[o]ur lawyers practice at the peak of our profession.” App. 417.
While we believe the characterization that defense counsel was
being “sarcastically ridicul[ed]” is an overstatement, we do think
the passage was inappropriate. See Wecht Pet at 48. Certainly,
quoting the website was not necessary to show that defense counsel
should have been capable of reviewing the materials in a timely
fashion. Nevertheless, we do not believe this reveals a “high
degree of . . . antagonism as to make fair judgment impossible.”
Liteky, 510 U.S. at 555.
Having considered all of the evidence and arguments that
Wecht has presented, we do not agree that the Judge should be
disqualified. This case has imposed significant burdens on the
District Court Judge, who has pursued the important goal of
moving the matter swiftly toward trial. In that effort, the Judge has
presided over several lengthy status conferences and has ruled on
numerous pre-trial motions in an efficient manner. Whether we
agree with aspects of the Judge’s management of this case is
irrelevant to our present inquiry. Wecht simply has failed to
demonstrate the “deep-seated” or “high degree” of “favoritism or
antagonism that would make fair judgment impossible.” Id. at 555-
56.
III. CONCLUSION
For the foregoing reasons, we modify Local Rule 83.1 under
42
our supervisory authority, affirm the District Court’s unsealing
order and stay of that order, and deny Wecht’s petition for
mandamus.
BRIGHT, Circuit Judge, concurring in part and dissenting
in part:
I concur in Section A of the majority’s opinion
relating to the gag order and do not address that issue in
this opinion.
I concur in Section B of the majority’s opinion, but
write separately to state my views on the issues of
document sealing. This opinion does not address the
District Court’s decision to stay the unsealing order.
For the reasons stated herein, I respectfully dissent
from Section C of the majority’s opinion on the question
of recusal and would order that this case be reassigned to
a new judge.
I. Statement of Facts30
Cyril H. Wecht served for many years as the
Allegheny County Coroner and as an expert in forensic
pathology for numerous private clients, as well as for
district attorneys and coroners in other counties. The
Government essentially alleges that Wecht used county
resources for his private clients, charged his private clients
for certain items that were provided to him by the county
government, and improperly exchanged unclaimed
cadavers with a local college for use of its laboratory
facilities for his private work.
Wecht claims that Wecht’s indictment arose from a
political scheme led by one of his political enemies. He
asserts, in part, a defense of selective prosecution. In
30
While this opinion accepts the majority’s statement of
facts, it restates some of them with additions as necessary to
address the issues discussed in this separate opinion.
particular, Wecht asserts that the District Attorney of
Allegheny County, Stephen Zappala, and Wecht have
been “engaged in a spirited debate caused by Zappala’s
failure to investigate or prosecute white policemen who
had killed black citizens in deaths ruled a species of
homicide by Dr. Wecht.” Wecht maintains that Zappala
publicly called for a federal investigation of Wecht in
order to prevent Wecht from publicly inquiring into those
deaths. He states that FBI Agent Bradley Orsini led the
investigation of Wecht and also the “public corruption”
investigations of other Democrats in Pittsburgh. Wecht
also maintains that, in aggregate, forty-seven of the
eighty-four count indictment relates to no more than
$2000 in allegedly fraudulent expense reimbursements.
Pretrial Proceedings
On April 6, 2006, during pre-trial proceedings, the
Government filed a motion seeking permission to file “the
underlying motion under seal.” Although this motion was
docketed, there was no “underlying motion” attached to it
on the docket. Shortly thereafter, the District Court
granted the motion to file the underlying motion under
seal, making no findings as to why the document should
be sealed. The next morning, at a pre-trial conference,
defense counsel pointed out to the District Judge: “The
motion that was filed under seal yesterday, we don’t even
know what it is.” The Judge responded, “That’s right.”
Defense counsel inquired further: “So, Your Honor says
he is going to rule on the motion. Is it something that
affects Dr. Wecht in some way because how are we
supposed to respond to the motion?” The Judge replied,
“You are not.” (Emphasis added.)
The “underlying motion” appears on the docket as
filed on April 7, the same day defense counsel was told
they would not know its contents. It was filed under seal
and described on the docket only as a sealed Government
motion. This sealed motion sought an “ex parte in
camera” ruling as to whether certain materials
unfavorable to the affiant, Agent Orsini, on two Wecht
search warrants must be disclosed as exculpatory or
-44-
impeachment information under Brady and Giglio.31 The
Government requested, in the alternative, that if disclosure
was required, the Court limit the materials’ use to only a
redacted copy and only if Orsini testified at trial. Also, if
disclosure were required, the Government asked for a
protective order limiting the use of the materials. The
District Court ruled on the Government’s motion
promptly; in a sealed order, the District Court ordered the
Government to turn over the materials to Wecht’s counsel.
However, the District Judge specifically stated that
because the documents constituted Brady/Giglio material,
the Government need not disclose the materials until
August (as set forth in the Pretrial Order). Because the
order was sealed, only the Court and the Government
knew its contents.
Contemporaneously on April 7, Wecht filed a
motion to suppress certain evidence. In the motion,
Wecht challenged the search warrants obtained in this
case by Agent Orsini, alleging that Orsini fabricated
statements in the probable cause affidavits, the warrants
lacked probable cause and were “infected with [Orsini’s]
deliberate and reckless falsehoods,” the warrants were
facially defective, and Orsini impermissibly used the
warrants as general rights of seizure. Wecht maintained
that a witness could testify that Orsini was an agent “with
a known bad reputation within the FBI, including having
urged witnesses to perjure themselves in a case involving
his own misconduct.” The motion attempted, in part, to
connect the dots between Wecht’s claim of selective and
vindictive prosecution with Orsini and concerns about
Orsini’s credibility. Wecht did not learn that the ex parte
motion and sealed order related to Orsini’s credibility
until several weeks later.
31
As the majority notes, in Brady v. Maryland, 373 U.S.
83 (1963), the Supreme Court held that the government must
turn over exculpatory evidence to defendants. In Giglio v.
United States, 405 U.S. 150 (1972), the Court held that
impeachment evidence constitutes Brady material.
-45-
On May 1, when denying a motion for discovery
pertaining to Orsini, the District Court mentioned that it
had already ordered the Government to disclose certain
Orsini materials under Brady/Giglio. Two days later, on
May 3, the Government requested a protective order,
covering both the ex parte motion and accompanying
documents, that would limit defense counsel’s use of the
documents if ultimately disclosed to them. Defense
counsel and various media parties then filed various
responses, notices, and briefs advising the Court that it
had not made findings necessary for sealing the
documents and opposing the Government’s proposed
protective order.32 At a May 12 status conference, with
the media present, the District Judge responded by
entering a protective order and then finally showing only
defense counsel the sealed materials. The protective order
prohibited defense counsel from, among other things,
“disclosing the contents or substance of the Confidential
Information in open court absent prior approval of the
Court obtained pursuant to a sealed submission or sealed
sidebar . . . .” In addition, the District Judge established a
briefing schedule for consideration of whether the Orsini
documents should be unsealed as to the public and set a
hearing on that issue for the next month – June 5, 2006.
In the meantime, on May 17, the District Court
admitted all of the Government’s approximately 1,300
trial exhibits (which constituted approximately 240,000
pages of documents) without considering any objections
from Wecht, thereby eliminating the Government’s
burden to authenticate or lay a foundation for any of
them.33 The Court left open, however, “possible
32
The media parties, two newspapers and two television
stations, moved to intervene on May 12, filing various motions
to be heard on issues and procedures regarding sealing and
closure, to unseal the case and records, and to object to the gag
order.
33
Because the majority capably describes the dispute
between defense counsel, the Government, and the District
-46-
relevancy objections, which may result solely from future
rulings on the Motion to Suppress or a Motion to
Dismiss.”
In response to the procedures set forth in the
protective order, defense counsel filed a motion on May
26, requesting permission to file a motion under seal to
determine what portions of the reports they could use in
“further proceedings.” At the time defense counsel filed
this request, the anticipated “further proceedings” were
(1) an unsealing hearing scheduled for June 5 and (2) a
possible suppression hearing, which had not been
scheduled yet because the Court had not ruled on Wecht’s
motion to suppress, which included a request for a
hearing. On May 31, however, the Court denied most of
Wecht’s suppression motion, including his request for a
hearing to establish that Orsini had falsified probable
cause affidavits, but scheduled a limited hearing for June
8 with respect to only the seizure of certain “boxes” of
documents.
On June 2, the Court denied Wecht’s May 26
motion to file a motion under seal in which Wecht would
request to use certain statements from the Orsini reports in
open court. As of the date the District Court denied the
request, the potential “further proceedings” included a
June 5 unsealing hearing and a June 8 limited suppression
hearing. On June 5, at the unsealing hearing, the District
Judge invited supplemental briefing on the unsealing
issues, which effectively delayed the unsealing decision
until after the suppression hearing on the “boxes”
scheduled for June 8, 2006.
On June 13, the Court finally ordered the ex parte
motion and exhibits (in unredacted form) unsealed, but
stayed the order to allow the Government to appeal its
decision. Notably, the Court denied the motion for
unsealing as to Wecht, pointing out that Wecht failed to
demonstrate a basis for unsealing the documents. Then, in
Judge which led to the admission of these exhibits, this opinion
does not restate it.
-47-
the same order, the Court granted the motion as to the
media interveners, explaining that the Government had
“not established a compelling interest or good cause to
justify the continued sealing of doc. no. 60.” Because of
the stay order, the sealed materials have remained
undisclosed to the public and not useable by Wecht to this
day.
From this series of decisions, the Government
appeals the District Court’s order unsealing the Orsini
documents and Wecht has filed a petition of mandamus
seeking recusal of the District Judge. Although the media
parties challenge the District Court’s decision to stay its
unsealing order, this opinion addresses only the
Government’s appeal and Wecht’s petition for recusal.
II. Discussion
If this case illustrates any basic principle of justice,
it is that secrecy and the right of the defendant and the
public to a fair and open trial do not mix except in rare
and unusual circumstances not presented by this case.
A. District Court’s Unsealing Order
The District Court in this case sealed the ex parte
motion without making any findings to justify its sealing.
This practice was improper and limited Wecht’s ability to
prepare his defense. The majority in this case affirms the
District Court’s decision to unseal the Orsini documents
in part because the District Judge possessed the
discretionary authority to unseal the documents or amend
its previously issued orders. I agree that this Court should
affirm the District Court’s decision to unseal the
documents. I write separately, however, to assert that the
District Court’s initial sealing of the documents rested on
improper procedures and resulted in a “too little, too late”
outcome.
The District Judge’s sealing of the ex parte motion
and accompanying documents without any findings
-48-
shifted the legal burden for sealing. The burden to justify
sealing a document or for entry of a protective order is on
the party seeking its sealing or protection, not, as imposed
in this case, on the defendant. See Leucadia, Inc. v.
Applied Extrusion Techs., Inc., 998 F.2d 157, 167 (3d Cir.
1993). When a court considers the imposition of a seal, it
must make particularized findings on the record, giving
notice on the docket of such consideration and rejecting
alternatives to closure. See United States v. Criden, 675
F.2d 550, 560 (3d Cir. 1982). In this case, the District
Court did not make any such findings. The Government
merely filed a motion requesting permission to file the
underlying motion under seal. No underlying motion was
attached and no reasons were given justifying closure.
Even the underlying motion did not address justifications
for sealing the documents, but concerned whether certain
documents constituted Brady/Giglio material. Rather than
imposing on the Government the burden to justify sealing
the motion, the Court sealed the motion from the outset
and then the media and Wecht were forced to spend
months briefing the Court as to why the motion should be
unsealed.
During those intervening months, while the motion
and accompanying documents remained sealed, the Court
denied Wecht’s motion to suppress and his counsel was
prevented from using any of the documents at the limited
hearing regarding the seizure of the “boxes.” The sealed
materials about Agent Orsini were relevant and of crucial
importance to the suppression motion, which alleged that
Orsini had fabricated statements in the probable cause
affidavits. Yet the District Judge denied Wecht’s request
to file a motion under seal to determine which portions of
the documents could be used in court and how.34 Notably,
34
The majority explains that this order cannot be
construed to mean that the District Judge restricted defense
counsel from using the Orsini documents at the “boxes”
suppression hearing because defense counsel could have sought
clarification of the Court’s “lack of specificity.” I disagree. The
Court’s order indicated that Wecht could not even seek
-49-
in its decision unsealing the documents, the District Court
explained precisely how the documents had been rendered
useless to Wecht:
Defendant argues that he wishes to have
doc. no. 60 unsealed so that he may use the
information therein at any hearing on the
motion to suppress (doc. no. 55), or at trial,
to impeach FBI Agent Orsini . . . However,
since defendant’s motion to suppress (doc.
no. 55) has been denied, the first part of the
defendant’s argument is moot. . . . Secondly,
since the government has indicated that it
does not intend to call Special Agent Orsini
at trial (see doc. no. 60, page 6), defendant’s
“for use at trial” argument is also moot at
least until such time as the government
states that Special Agent Orsini will in fact
testify at trial. . . . Thirdly, defendant
contends that he intends to call Special
Agent Orsini at trial. Since Agent Orsini is
not a “fact” witness, the Court does not see
the relevancy of his purported testimony,
even though counsel for defendant
continually seeks to label him as the “main
accuser.” Thus, defendant’s motion to
unseal is DENIED.
But, at the time the Government requested permission to
submit the ex parte motion under seal, these matters had
not yet been resolved. The Court relieved the
Government of its burden to show good cause as to why
the documents should be sealed and then, after the
Government had attempted to eliminate the usefulness of
the documents by stating Orsini would not be called as a
permission under seal to use certain statements in court and the
protective order remained in full effect. It was not unreasonable
for Wecht to understand the order to mean that under no
circumstances could he use the documents during the
suppression hearing.
-50-
witness, the District Judge denied Wecht’s requests to
unseal them because they lacked useful purpose.
As to the media, the District Judge ultimately
determined that the Government had failed to demonstrate
good cause to justify the documents’ continued sealing.
Yet, as demonstrated above, this relief even for the media
is too little, too late. Even though the public will gain
access to the documents, the time has passed for Wecht to
use them to challenge Agent Orsini’s testimony in the
suppression hearing. The Government thus benefitted by
the improper sealing of the documents and Wecht has
been deprived of using the information about Agent
Orsini contained therein in its suppression motion or at
any suppression hearing.
The District Court did not merely have the
discretion to unseal the ex parte motion and its exhibits,
but was obligated under the law to unseal the documents.
My concurrence rests on this basis, not on the basis of the
District Court’s discretion.
B. Recusal of the District Judge
Although I concur (separately) in the majority’s
decision affirming the District Court’s unsealing order, I
dissent from its opinion with respect to Wecht’s petition
for mandamus requesting recusal of the District Judge. I
dissent to express my opinion that we should remove the
District Judge from this case either under 28 U.S.C. §
455(a) or our supervisory powers.
1. The Standard for Recusal
The decision to remove a judge from an ongoing
trial should be considered seriously and made only rarely.
This Court may order the recusal of a judge pursuant to 28
U.S.C. § 455(a) for the appearance of partiality or
reassign the case to a new judge under its supervisory
powers. See 28 U.S.C. § 455(a) (“Any justice, judge, or
magistrate judge of the United States shall disqualify
-51-
himself in any proceeding in which his impartiality might
reasonably be questioned.”); Liteky v. United States, 510
U.S. 540, 554 (1994) (“Federal appellate courts’ ability to
assign a case to a different judge on remand rests not on
the recusal statutes alone, but on the appellate courts’
statutory power to ‘require such further proceedings to be
had as may be just under the circumstances,’ 28 U.S.C. §
2106.”).35
“The test for recusal under § 455(a) is whether a
reasonable person, with knowledge of all the facts, would
conclude that the judge’s impartiality might reasonably be
questioned.” In re Kensington Int’l Ltd., 368 F.3d 289,
301 (3d Cir. 2004); see also Virgin Islands v. Walker, 261
F.3d 370, 376 (3d Cir. 2001) (focusing on appearance of
impartiality when reassigning sentencing judge who
appeared to have inappropriately considered defendant’s
decision to plea bargain); Alexander v. Primerica
Holdings, Inc., 10 F.3d 155, 164-68 (3d Cir. 1993)
(reassigning a case from a judge who appeared to have
aligned with the defense); Haines v. Liggett Group, Inc.,
975 F.2d 81, 98 (3d Cir. 1992) (exercising supervisory
power to reassign judge because it was “impossible for us
to vindicate the requirement of ‘appearance of
impartiality’ in view of the statements made in the district
court’s prologue to its opinion”). Significantly,
appearance alone is sufficient to warrant relief on
mandamus because “‘while review after final judgment
can (at a cost) cure the harm to a litigant, it cannot cure
the additional, separable harm to public confidence that
section 455 is designed to prevent.’” See Alexander, 10
F.3d at 163 (quoting In re School Asbestos Litig., 977
F.2d 764, 776 (3d Cir. 1992)). In addition, the
“appearance of impropriety must be viewed from the
perspective of the objective, reasonable layperson.”
Kensington, 368 F.3d at 303.
35
Defense counsel, all experienced attorneys, state that
among them none have previously brought a motion to recuse a
federal judge. They appear to have done so here only with
reluctance and careful consideration.
-52-
In Liteky, the Supreme Court explained that
although an extrajudicial source may be a practical
necessity for establishing prejudice or bias, it is only a
factor. See 510 U.S. at 554-56. Without an extrajudicial
source, the judge must reveal deep seated or a high degree
of antagonism to evince bias. See id. at 555-56. As the
majority notes, “judicial rulings alone almost never
constitute a valid basis for a bias or partiality motion”
because “[i]n and of themselves . . . they cannot possibly
show reliance upon an extrajudicial source.” Id. at 555.
The circumstances of this case present the rare
occasion when a judge’s judicial rulings demonstrate the
appearance of bias because they began with and were
possibly tainted by improper, or at least highly
questionable, ex parte advocacy by the Government. This
ex parte advocacy was tantamount to an extrajudicial
source and permeated the rulings of the District Court
such that one cannot avoid discerning the appearance of
partiality.
2. Ex Parte Advocacy
As set forth previously, on April 6, the
Government filed a motion with the Court requesting
permission to file the “underlying motion” under seal.
The underlying motion appeared on the docket as filed on
April 7 and remains sealed from the public. The ex parte
motion was entitled “In Camera Ex Parte Motion for
Ruling As To Whether Possible
‘Impeachment/Credibility’ Information Must Be
Disclosed.” The Government filed it under seal, and, as
previously observed, without the Court having made any
findings for good cause to seal the motion.
The Code of Conduct for United States Judges
prohibits ex parte communications except in certain
circumstances not presented by this case. See Code of
Conduct for U.S. Judges Cannon 3 § A(4) (2003). As this
Court stated in Kensington,
ex parte communications run contrary to our
adversarial trial system. The adversary
-53-
process plays an indispensable role in our
system of justice because a debate between
adversaries is often essential to the truth-
seeking function of trials. . . . If judges
engage in ex parte conversations with the
parties or outside experts, the adversary
process is not allowed to function properly
and there is an increased risk of an incorrect
result.
268 F.3d at 310. Although the ex parte communication in
Wecht’s case was not a verbal conversation, as in
Kensington, a motion presents the same concerns for the
adversarial process because counsel’s assertions remained
unchecked by opposing counsel. Moreover, as in a verbal
conversation, the Government and the District Judge
exchanged and conveyed information to one another. In
these ways, ex parte communications, including ex parte
advocacy, can function as an extrajudicial source. Cf.
Kensington, 368 F.3d at 308 n.18, 310 (noting that ex
parte conversations with experts constitute extrajudicial
knowledge).
The ex parte motion constituted advocacy.36 It
spans nine typed pages and also attaches both unredacted
and proposed redacted versions of “reprimand reports”
relating, in part, to Agent Orsini’s reputation for
truthfulness. The Government devotes more than a page
of the motion to the accomplishments and accolades
previously earned by Orsini, including numerous awards
he has received and high profile cases he has investigated.
Then the Government briefly describes the contents of the
reprimand reports that concern Agent Orsini and
downplays their significance. The Government next
recites certain “facts” of the case.
36
While the effect of this Court’s opinion on the
unsealing order will be to unseal these documents, this opinion
does not herein reveal the contents of the ex parte motion or its
exhibits except generally or as necessary for explanation. This
opinion also does not disclose the specific contents of the
reprimand reports, which were attached to the ex parte motion.
-54-
The Government argues to this Court that its
motion was not ex parte communications, but rather a
benign ex parte filing:
The government simply filed one (1)
document in camera (after providing
defense counsel with notice of its intention
to do so) in order to ensure its compliance
with its Brady/Giglio obligations. This
single, and completely appropriate, in
camera written filing hardly supports
Wecht’s accusations that the District Court
and the government “engaged in an ex parte
practice,” . . . .
The Government, however, mischaracterizes the
content of its motion. It did not merely submit a
document for in camera review, but rather, as described
above, argued to the Court why the materials were not
covered by Brady/Giglio. The motion set forth facts
about Orsini not already in evidence, explained the
Government’s intention to limit Orsini’s role in the trial,
characterized Orsini’s role in the investigation, cited case
law and made arguments as to why Brady/Giglio did not
require disclosure of the documents.
Wecht knew the existence of a motion, but was
unaware of its subject matter and was told by the Court
that he would remain so. Under these circumstances, the
Government’s motion remained untested by the
adversarial process. Moreover, as in Kensington, the ex
parte motion concerned not merely procedural matters,
but went to the very heart of the proceeding. See id. at
310. Brady disclosures, after all, are matters of
constitutional significance. See Brady v. Maryland, 373
U.S. 83, 86 (1963).
It is helpful to refer to a portion of the ex parte
motion’s content in order to illustrate how the
Government’s motion went beyond a mere in camera
submission to the Court. For example, the Government
represented to the District Court in the ex parte motion
that Agent Orsini “was one of the case agents involved in
-55-
the investigation,” the Government did not intend to call
Orsini to testify at trial, and “Special Agent Orsini was the
affiant on two search warrants that resulted in the seizure
of evidence, but the evidence seized with those warrants
will be introduced by other witnesses actually involved in
the creation, chain of custody, and maintenance of that
evidence.” (Emphasis added and internal footnote
omitted).
Wecht’s counsel would and could have contested
these “facts” as presented by the Government.37 Wecht’s
defense rests, in part, on selective prosecution and he
maintains that Orsini was not merely “one of the agents,”
but the lead investigator who was influenced by Stephen
Zappala to investigate him. Moreover, the Government’s
ex parte motion attempts to diminish Orsini’s role in the
handling and chain of custody of the evidence. At the
suppression hearing on the “boxes,” however, the “other
agents” to whom the Government may have been referring
presented testimony that they turned over the evidence to
Orsini after it was seized and deferred to Orsini’s
directions during the seizure as to the scope of the
warrants. Agent Welsh testified that he twice called
Agent Orsini during the search to clarify and narrow the
search parameters, seeking advice as to how to know
which “boxes” to seize. Agent Welsh also testified that it
was Orsini who instructed that “box 20” be seized,
although later clarifying that it was a collective decision.
Agent Swim testified that he signed over the evidence,
once seized, to Agent Orsini.
The Government contends that the District Court
Judge’s ruling in favor of Wecht on the Government’s
motion undercuts any suggestion of bias. Yet the District
Court’s ruling, whether for or against the Government,
cannot overcome that the Government explained to the
Court its strategy to keep Orsini off the witness stand,
without giving Wecht a chance to listen or respond.
37
This opinion does not suggest that the Government
misrepresented facts to the District Court, but notes these factual
inconsistencies to illustrate how the Government’s motion
needed the adversary process.
-56-
Through its advocacy, the Government disclosed to the
Court that Orsini had credibility problems and it planned
to limit his presence at trial. The Government also
indicated its desire to delay disclosure of the Orsini
materials until trial and even then, disclose them only if
Orsini testified at trial. Despite the Court’s ruling in favor
of Wecht as to whether the materials constituted
Brady/Giglio materials, the Court relied on the advocacy
within the motion. Notably, when explaining why the
documents would be of no use to Wecht in its ultimate
unsealing order, the District Court cited to document 60.
Even this small citation reinforces the way in which the ex
parte advocacy may have influenced the District Judge, as
it indicates that he relied on it when making subsequent
decisions.
The Government sought to protect the Orsini
materials with two alternative requests: (1) that the Orsini
materials would never be disclosed or, (2) if required to
disclose the documents, only with redaction and under a
protective order, and only if Orsini testified at trial. The
Government also represented to the District Court that the
documents would not be useful to Wecht because it did
not plan to call Orsini to testify at trial, notwithstanding
that Orsini appears to be the lead FBI agent investigating
Wecht’s case. The Court, despite ordering the documents
to be turned over to Wecht, followed the requests of the
Government in the ex parte motion by entering a series of
rulings that made the documents unavailable or unuseable
up until the present time.
The Government and the majority also downplay
the appearance of partiality created by the ex parte motion
by citing to cases such as United States v. Dent, 149 F.3d
180, 191 (3d Cir. 1998) and United States v. Bocra, 623
F.2d 281, 285 (3d Cir. 1980), which would appear to
condone the practice of in camera review. These cases,
however, bear two important distinctions from the case at
hand. First, although the Court in Dent and Bocra
reviewed potential Brady materials in camera, there is no
indication that either party engaged in ex parte advocacy
in those cases, as the Government did in this case. See
Dent, 149 F.3d at 191; Bocra, 623 F.2d at 284-86. In
-57-
addition, in both Bocra and Dent, defense counsel was at
least aware that an in camera inspection of potential
Brady materials was taking place, which was not the case
here.38 See Dent, 149 F.3d at 191; Bocra, 623 F.2d at
284-86. The Government should be careful to distinguish
in camera review from ex parte motion practice.39
3. Other Rulings
Considering all of the above, the ex parte motion
submitted to the District Court closely resembles an
extrajudicial source that heightens the appearance of bias
in Wecht’s case so far. But, just as consideration of an
extrajudicial source does not require recusal, see Liteky,
510 U.S. at 554-55, neither should consideration of ex
parte communications. Alone, the Court’s consideration
38
Moreover, this Court’s determinations in the Bocra and
Dent cases concern whether, on a post-conviction basis, these
practices satisfied the requirements of Brady. That is not the
issue before this Court; this opinion rather evaluates whether this
ex parte practice contributed to the appearance of bias in
Wecht’s case.
39
Other cases cited by the Government similarly fail to
support its ex parte motion practice in this case. In United States
v. Hsu, 155 F.3d 189 (3d Cir. 1998), this Court remanded an
action to permit the District Court to undertake in camera review
of certain documents to determine whether they had been
properly redacted. See id. at 205-06. In the Lindh case in the
Western District of Virginia, the District Court appears to have
undertaken ex parte in camera review of potential Brady
materials. See United States v. Lindh, 2002 WL 1974284, *1
(E.D. Va. 2002). However, in the Lindh case, it also appears
from an earlier, similar review of materials that the government
followed the practice of submitting an application to the court
requesting permission to make an ex parte in camera motion,
providing the defense notice and an opportunity to respond, prior
to actually doing so. See United States v. Lindh, 198 F. Supp.
2d 739 (E.D. Va. 2005); see also Joint Appendix at 728-41. In
neither the Hsu case nor the Lindh case did a court endorse the
practice of submitting nine pages of advocacy that remained
unchecked or unknown by opposing counsel in connection with
in camera review of Brady/Giglio materials.
-58-
of ex parte advocacy likely would not evince bias
sufficient to warrant relief for Wecht. Yet the District
Court’s consideration of the ex parte motion created a
backdrop against which its future rulings appear, in
substance and in timing, questionable.
In Alexander, this Court explained that we need not
decide the merits of each allegation against the judge;
rather, the “appropriate–and the only–inquiry to which we
must respond is ‘whether a reasonable person, knowing all
the acknowledged circumstances, might question the
district court judge’s continued impartiality.’” 10 F.3d at
164 (citation omitted). Thus, without determining or
evaluating the merits of the District Court’s rulings, this
opinion examines the picture the District Judge painted in
his courtroom and asks whether a layperson, given all the
facts, would reasonably believe Wecht was receiving an
impartial trial.
a) April 7 Sealed Order. In the sealed order
requiring the Government to turn over the Orsini materials
to the defense, the District Judge reminded the
Government that Brady/Giglio materials could be
withheld until August (as set forth in the Pretrial Order).
Brady does not require early disclosure, see United States
v. Kaplan, 554 F.2d 577, 580 (3d Cir. 1977), but this
Court has explained that it is preferable for Brady
materials to be disclosed well in advance of trial. See,
e.g., United States v. Starusko, 729 F.2d 256, 261, 264 (3d
Cir. 1984) (describing “longstanding policy of
encouraging early production”); Kaplan, 554 F.2d at 581
(“[W]e disapprove and discourage a practice of delayed
production of Brady materials.”). Given such precedent
and admonition, that Wecht had filed a motion to suppress
raising the very concerns about Agent Orsini that the yet-
undisclosed materials addressed, and that the
Government’s ex parte motion explained its desire to
delay disclosure of the materials, an informed layperson
would reasonably ask: Why would the District Judge
suggest such a delay to the Government?
b) Admission of Evidence. On May 17, 2006, the
Court admitted all of the Government’s approximately
1,300 trial exhibits without considering any objections
-59-
from Wecht and eliminating the Government’s burden to
authenticate or lay a foundation for them.40 The Court left
open, however, “possible relevancy objections, which
may result solely from future rulings on the Motion to
Suppress or a Motion to Dismiss.” The District Judge’s
ruling, at this point, effectively eliminated the
Government’s evidentiary burdens on foundation and
potentially reduced Orsini’s role in the case. The only
remaining avenue for Wecht to challenge Orsini’s
involvement and conduct in handling the evidence was the
motion to suppress. Thus, subject to the pending motion
to suppress, the Government would no longer need Orsini
to lay the foundation for any of the evidence. An
informed layperson would reasonably ask: Why would the
District Judge admit approximately 240,000 pages of
documents, without foundation, as trial exhibits?
The majority appears to agree that the Court acted
improperly in its treatment of the trial exhibits, but
declines to infer an appearance of bias because the District
Judge ultimately cured his mistake by considering the
objections. However, the Court finally considered
Wecht’s objections to the Government’s exhibits after
rejecting numerous pleas from defense counsel to
reconsider his order or modify the pretrial order. Also,
the District Judge’s ultimate consideration of Wecht’s
objections to the exhibits failed to undo the damage done.
This so-called cure led to the admission of numerous
documents as trial exhibits that appear to have no good
use at trial. Wecht’s counsel included in his petition a list
of items that have now been admitted as trial exhibits.
Some of these items include photocopies of blank
compact disc covers, a brochure for a nursing home
litigation seminar, and multiple handwritten notes with no
identifying features. An informed layperson would
reasonably ask: Does the Government sincerely intend to
use all of these documents as trial exhibits?
40
As explained in the fact section above, because the
majority capably describes the dispute between defense counsel,
the Government, and the District Judge which led to the
admission of these exhibits, this opinion does not re-summarize
it here; the decision’s effect is the relevant consideration.
-60-
The Court, while supposedly reviewing an average
of 34,000 documents a day, seems to have overruled
virtually all of Wecht’s objections as to relevance,
hearsay, authentication, foundation, and chain of custody
– qualifying the documents as business records,
government records, or personal records. The Court
stated: “Interestingly, defense counsel’s ‘good faith
objections’ even challenge the ‘foundation’ and ‘chain on
[sic] custody’ of defendant’s own records, including
personal tax returns, corporate tax returns, and corporate
general/profit loss ledgers . . . . Countless other business
records of Dr. Wecht are objected to on the basis of
‘Relevance (FRE 402); Hearsay (FRE 802);
Authentication (FRE 901); Foundation; and Chain of
Custody.’” Perhaps Wecht’s objections could have been
more specific, but the Court’s comment expresses
exasperation with defense counsel for asking the Court to
require the Government to establish the basic features of
admissibility provided under the Federal Rules of
Evidence.
The documents to which the Court refers may
indeed constitute business records; however, it is the
Government’s burden, as the proponent of the evidence,
to provide the foundational elements that show each
document qualifies for the business record exception to
the hearsay rule under FRE 803(6). Wecht is under no
obligation to stipulate to those features.
It is a hallmark of partiality for one party not to be
put to its burden. The admission of this evidence without
foundation testimony appears to have advanced the
Government’s stated goal of keeping Orsini off the
witness stand. Although the Government may have
intended to call witnesses other than Orsini to lay the
foundation for its exhibits, in any event, the District
Judge’s wholesale admission of evidence precluded the
Government from having to call Orsini for such purpose.
An informed layperson would reasonably ask: Why did
the Court obviate, even upon re-consideration, the
Government’s burden to lay the foundation for evidence it
-61-
intended to use at trial?41
c) June 2 Denial of Request to File Motion Under
Seal. In response to the procedures set forth in the
protective order, on May 26, Wecht filed a request to file
a motion under seal. If permitted to file the motion,
Wecht intended to request to use certain statements from
the Orsini reports in open court. The Court denied
Wecht’s request in a docket text order on June 2.
Presumably, the District Judge considered Wecht’s
request premature because a hearing on whether the
documents would be unsealed was only three days away.
Naturally, if the Court unsealed the documents at that
hearing, the request would be moot. Conversely, it would
have been inappropriate to discuss, in open court, the
contents of sealed documents in the context of a hearing
on whether to maintain the seal.
Yet the Government did not oppose the motion and
the Court did not advise defense counsel that it would
reconsider the motion if the documents remained sealed
after June 5. Then, on June 5, at the unsealing hearing,
the District Judge invited supplemental briefing on the
unsealing issues, which effectively delayed the unsealing
decision until after the “boxes” suppression hearing
scheduled for June 8, 2006. Now, Wecht’s May 26
41
In his memorandum of opinion denying
reconsideration of admission of the Government’s trial exhibits,
the District Judge describes his reliance on The Elements of
Case Management: A Pocket Guide for Judges (2006) and
Manual for Complex Litigation (4th ed.) (2006). These texts do
not apply to criminal trials. The Manual specifically states:
“because civil and criminal case management differ significantly
. . . this edition only deals with civil litigation.” Manual, supra at
2 (emphasis added). Similarly, the Pocket Guide describes itself
as a “pithy guide to the essential steps in managing a civil case.”
Pocket Guide, supra at v (emphasis added). The rules pertaining
to case management of complex civil litigation do not apply to
criminal trials for which the Constitution and case law provide
safeguards for a fair trial. While there is a necessity for
organization and efficiency in any trial, those interests must be
balanced against the rights of a criminal defendant: a man’s
liberty is at stake.
-62-
motion was no longer moot because the Court’s ruling on
the unsealing motion would occur after the suppression
hearing. Rather than hearing out defense counsel, who
might have been able to clarify its intended use of the
reports (whether or not they would ultimately remain
sealed or unsealed), the District Judge denied defense
counsel’s request to even make a motion under seal.
Hearing such motion might have clarified Wecht’s
intended use of the documents at not only the unsealing
hearing, but also the suppression hearing.
An informed layperson would reasonably ask:
Why, if the protective order set forth procedures for
requesting permission to use the sealed documents (which
Wecht followed, and the Government did not oppose), did
the Court deny Wecht’s counsel the opportunity even to
ask, under seal, how it might use the contents of the
documents? Such a layperson also would reasonably ask:
Why, at the very time when the documents arguably are
most relevant, would the Court restrict Wecht from even
asking how he might use them?
d) Limited Suppression Hearing. At the
suppression hearing on the boxes, Agent Welsh testified
that he telephoned Agent Orsini, who was elsewhere,
during the seizure to clarify the scope of the seizure and to
assist in determining whether to take “box 20.” On cross
examination, counsel for Wecht then attempted to ask
Agent Welsh how well he knew Agent Orsini. Counsel
for the Government objected and the Court sustained the
objection for relevancy. Later, the District Judge asked
Agent Swim and counsel for the Government whether
someone was going to testify as to the chain of custody of
the boxes to “clarify that issue.” Counsel for the
Government responded that he had not envisioned that as
an issue for the hearing, but that the agents could testify
about chain of custody. Agent Swim then testified that he
gave Agent Orsini the evidence after seizing it, which
would put Orsini directly in the chain of custody.
Agent Orsini was scheduled to testify at the
suppression hearing sometime after Agent Swim.
Although Orsini testified at the suppression hearing,
Wecht was precluded from challenging his credibility
-63-
with the Orsini documents because of the strictures of the
protective order in place.
After a recess, the District Judge changed his mind
and decided to exclude chain of custody from the scope of
the hearing. Certainly a trial judge has the discretion to
limit examinations to a relevant scope and may change his
mind as to that scope, but, an informed layperson would
reasonably ask (in light of the Government’s statements in
its ex parte motion that “other witnesses” (other than
Orsini) were “actually involved in the creation, chain of
custody, and maintenance of [the] evidence”): Was the
District Judge attempting to further the Government’s
goal not to use Orsini for foundation or chain of custody
when he curtailed chain of custody testimony?
e) June 13 Unsealing Order. On June 13, the Court
finally ordered the ex parte motion and Orsini documents
unsealed, but in an unusual order. First, the Court denied
the motion for unsealing as to Wecht, pointing out that
Wecht failed to demonstrate a basis for unsealing the
documents. Then, in the same ruling, the Court granted
the motion as to the media interveners, explaining that the
Government had “not established a compelling interest or
good cause to justify the continued sealing of doc. no.
60.” As to Wecht, the Court placed the burden on him to
justify unsealing the documents, but as to the media, the
Court placed the burden on the Government.
This is a strange and unsettling ruling as to Wecht
in contrast to the media. If a document is unsealed, it is
unsealed to the world. The distinction between unsealing
the Orsini materials on a motion by the media, but not
Wecht, creates an appearance of hostility, if not partiality.
An informed layperson would reasonably ask: Why did
the District Court treat the media differently than
Wecht?42
42
The District Court only showed defense counsel the
Orsini documents at a May 12 status conference once the media
became involved and in the media’s presence. The District
Judge had previously indicated that Wecht would not get to
know the subject matter of the sealed materials, but changed his
mind once in the media’s presence. An informed layperson also
-64-
f) Review of Box 20. Wecht argues that the FBI
improperly seized “box 20” because the box’s label, “Flo-
for Wecht law firm,”43 would have placed it outside the
scope of the search warrant. The “Wecht law firm” refers
to Wecht’s wife’s law firm, which shared office space
with the Defendant. When the District Court concluded
that the FBI properly seized “box 20,” it cited, in part, to
the “plain view doctrine.” Neither party, including the
Government, argued that the box was lawfully seized
pursuant to this doctrine. The District Court devised this
justification for the seizure without briefing or suggestion
by either party.
This opinion does not express any conclusion as to
the correctness of that decision or the propriety of the
seizure, as the parties have not asked this Court to decide
whether the District Judge erred in this respect.
Nonetheless, in order to discern whether the District
Court’s use of the plain view doctrine suggests an
appearance of bias, one must, to some extent, consider
whether it may have been misapplied. “Under the plain
view exception, law enforcement authorities must have
been lawfully on the premises, the discovery must have
been inadvertent, and the incriminating nature of the item
must have been immediately apparent.” United States v.
Scarfo, 685 F.2d 842, 845 (3d Cir. 1982) (emphasis
added). Box 20 was found, lid closed, in a storage room
in the shared office space of Wecht and his wife’s law
office. The Agents were given specific direction not to
seize any items belonging to the Wecht law office. The
Agents testified that the box was a bit unusual in part
because it bore a label, “Flo - for the Wecht law Firm” on
it. The Agents testified that they opened the lid of the box
and found files pertaining to ongoing or recent Wecht
autopsies. Under these circumstances, it is questionable
for the District Court to have concluded that the
incriminating nature of the contents of a closed box was
immediately apparent.
reasonably might have asked on May 12: Why did the District
Judge appear to treat the media differently than Wecht?
43
“Flo” presumably refers to Flo Johnson, a private
assistant for Wecht Pathology.
-65-
Moreover, the District Judge acknowledged that he
also based his suppression decision on his own in camera
review of the contents of the box. The question posed to
the District Court by Wecht was whether the box was
lawfully seized. The Court, without alerting either Wecht
or the Government, reviewed contents of the box and
determined that they fell within the scope of the warrant.
By undertaking a review of the contents of the box, rather
than considering the method and manner by which the
Government seized the box, the Court deprived Wecht of
an opportunity to refute the Court’s conclusions about the
contents prior to the Court making them. It cannot escape
notice that a review of the manner and method of seizure
would have included inquiry into the conduct of Agent
Orsini, who, by his own testimony, played a key role in
the seizure of box 20.
Although a trial judge may properly discern a legal
justification in his decisions without prompting by the
parties, given the prior context of this case and the
possible misapplication of the plain view doctrine, the
District Judge’s choice enhances suspicions that the Court
was favorably disposed to the Government. Given the
background, particularly the District Judge’s prior
admission of the Government’s other evidence without
consideration of foundation or objections, an informed
layperson would reasonably ask: Did the District Court
Judge strive to reach a result favorable to the
Government?
4. Threats of Contempt
Wecht also argues that threats of contempt and
antagonistic remarks made by the District Judge
contribute to an appearance of bias. “Just as reassignment
is necessary if reasonable observers could believe that
improper outside contacts influenced a judicial decision,
so too is reassignment necessary if reasonable observers
could believe that a judicial decision flowed from the
judge’s animus toward a party rather than from the
judge’s application of law to fact.” Cobell v.
Kempthorne, 455 F.3d 317, 332 (D.C. Cir. 2006) (internal
citations omitted). Although such expressions of
impatience or anger are not alone sufficient to warrant
-66-
recusal, see Liteky, 510 U.S. at 555, in this case they may
contribute to the overall appearance of partiality
considering the other circumstances described above. See
Cobell, 455 F.3d at 334 (“But we need not decide whether
such charges, standing alone, require reassignment, for the
charges do not stand alone.”).
Wecht describes two instances in which the District
Judge may have threatened his counsel with contempt
proceedings. First, on May 12, 2006, the Court stated: “If
any counsel believes the opposing counsel is violating the
order of the Court and/or the local rule, they should file a
motion to have the opposing counsel adjudged in civil
contempt and I will hold a hearing.” This comment,
although on its face applicable to either party, was made
in the context of the Government’s complaint to the Court
about defense counsel’s extrajudicial comments. The
specter of contempt during that proceeding was aimed at
defense counsel.44
Second, in its memorandum of opinion denying
Wecht’s motion for reconsideration on the admission of
the Government’s trial exhibits, the Court stated: “After
the trial, the Court will schedule a contempt hearing to
adjudicate whether defense counsel’s conduct in
repeatedly ignoring this Court’s Pretrial Order without
taking appropriate steps to modify said Order constitutes
contempt and, if so, what would be the appropriate
penalty.” The Court cited In re Morrissey, 168 F.3d 134
(4th Cir. 1999), a case in which the penalty adjudged
against counsel was ninety days imprisonment, three
years’ probation, two years’ suspension for “knowingly
violating a local rule.” See id. at 137.
While it is certainly within the province of a trial
judge to require counsel to comply with its orders,
repeated threats can create the appearance of bias when
44
Moreover, when defense counsel expressed concerns
with the local rule, combined with such “risk of contempt,” and
their cumulative effect of chilling speech and advocacy, the
Court advised defense counsel to “hire a First Amendment
lawyer that’s an expert in the field to advise you if you are
having difficulty understanding it.”
-67-
unjustified or can bolster a pre-existing appearance of
bias. See Cobell, 455 F.3d at 333-35. While the District
Judge’s warnings appear harsh in this case, the record is
insufficient to determine whether they were improper or
contribute to the appearance of bias against Wecht or his
counsel.
5. Recusal Conclusion
In summary, the materials relating to Orsini
constituted Brady/Giglio materials and the Government
knew disclosure of the documents would harm its case
before a jury and the public. The Government ex parte
sought to protect this information with two alternative
requests: (1) that the Orsini materials would never be
disclosed or, (2) if required to disclose them, only under
redaction and protective order, and only if Orsini testified
at trial. The Government also represented to the District
Court that the documents would not be useful to Wecht
because it did not plan to call Orsini to testify at trial,
notwithstanding that Orsini appears to be the lead FBI
agent investigating Wecht’s case.
The District Court, without notice or input from
Wecht, relied on the ex parte representations by the
Government and followed the requests of the Government
by making the documents unavailable or unuseable up
until the present time. Many of the Court’s rulings that
followed this initial ex parte procedure appear to have
been made in furtherance of the Government’s goal to
limit Orsini’s connection to the case or, at a minimum, to
favor the Government. On this basis, the unbiased
observer would reasonably question the District Judge’s
impartiality.
As noted at the outset of my recusal discussion,
this opinion does not suggest that the District Judge
harbors actual bias in this case. He is undoubtedly bright,
hard working, and has sincerely attempted thus far to
administer justice in a highly publicized, hard fought case
litigated by experienced counsel. Yet as this Court has
stated before, that is not the test for recusal. See
Kensington, 368 F.3d at 294. The circumstances of this
case, particularly given the content and circumstances of
-68-
the ex parte motion, compel the conclusion that a
reasonable person, with knowledge of all the facts, would
conclude that the District Judge’s impartiality might
reasonably be questioned. See id. at 301.
Nonetheless, a judge must be able to rely on
counsel for the parties, which have a duty of candor to the
court, to inform the judge’s decisions. In this case, the
Government’s ex parte practice appears to have
influenced the Court to exclude defense counsel from the
adversary process with respect to the Orsini documents.
The chain of motions and proceedings that followed in
part flowed from the secrecy surrounding the Orsini
documents. Moreover, the flood of evidence that the
Government transferred to the defense, as trial exhibits,
and the Government’s efforts to keep Orsini’s record
hidden from the defense and the public raises serious
concerns about the propriety of the Government’s
strategy. All parties in this case, through their counsel,
have an obligation to assist the courts and to see that
justice is administered fairly.
In summary, and with reluctance, it is my view that
another judge should preside over the trial of Wecht and,
therefore, I dissent from the majority. This Court should
grant Wecht’s petition for mandamus disqualifying the
District Judge from further presiding over the criminal
trial of Wecht and authorizing the Chief Judge to assign
the case to another judge.
-69-