United States Court of Appeals
For the First Circuit
No. 03-2052
No. 04-1383
IN RE: SPECIAL PROCEEDINGS.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
Before
Boudin, Chief Judge,
Lipez and Howard, Circuit Judges.
Jonathan M. Albano with whom Bingham McCutchen LLP, William P.
Robinson III, Edwards & Angell, LLP, Susan E. Weiner, Brande M.
Stellings and National Broadcasting Company, Inc. were on brief for
appellant-third-party witness James Taricani.
Laura R. Handman, Jeffrey L. Fisher, Davis Wright Tremaine
LLP, Henry S. Hoberman, ABC, Inc., David A. Schulz, The Associated
Press, Levine Sullivan Koch & Schulz, L.L.P., Jonathan S. Piper,
Blethen Maine Newspapers, Preti Flaherty Beliveau Pachios & Haley
LLC, Susanna M. Lowy, CBS Broadcasting Inc., David C. Vigilante,
Cable News Network LP, LLLP, Stuart D. Karle, Dow Jones & Company,
Inc., Barbara W. Wall, Gannett Company, Inc., Eve B. Burton,
Jonathan Donnellan, The Hearst Corporation, Gordon Yamate, Knight-
Ridder, Inc., Kenneth M. Vittor, William Farley, The McGraw-Hill
Companies, Inc., George Freeman, The New York Times Company, Rene
P. Milam, Newspaper Association of America, Stephen Fuzesi, Jr.,
Newsweek, Inc., Jan F. Constantine, NYP Holdings, Inc., Russell F.
Coleman, The Providence Journal Company, Belo Corp., Lucy A.
Dalglish, The Reporters Committee for Freedom of the Press, Robin
Bierstedt, Time Inc., Stephanie S. Abrutyn, Karlene Goller, Tribune
Company, Eric N. Lieberman and WP Company LLC, d/b/a The Washington
Post, on brief for ABC, Inc., The Associated Press, Blethen Maine
Newspapers, CBS Broadcasting Inc., Cable News Network LP, LLLP, Dow
Jones & Company, Inc., Gannett Company, Inc., Globe Newspaper
Company, Inc., The Hearst Corporation, Knight-Ridder, Inc., The
McGraw-Hill Companies, Inc., The New York Times Company, Newspaper
Association of America, Newsweek, Inc., NYP Holdings, Inc., The
Providence Journal Company, The Reporters Committee for Freedom of
the Press, Time Inc., Tribune Company, and The WP Company LLC,
d/b/a The Washington Post, Amici Curiae.
Marc DeSisto with whom DeSisto Law, Joan McPhee, William S.
Eggeling and Ropes & Gray LLP were on brief for appellee United
States of America and the Special Prosecutor.
June 21, 2004
BOUDIN, Chief Judge. This appeal is an outgrowth of two
federal corruption cases involving city officials in Providence,
Rhode Island. One set of indictments--the Glancy case--named tax
officials Joseph Pannone, David Ead, and Rosemary Glancy. See In
re Special Proceedings, 291 F. Supp. 2d 44, 47 (D.R.I. 2003). The
second indictment--the Corrente case--also named Pannone in
addition to Frank Corrente, who was Providence Mayor Vincent A.
Cianci, Jr.'s administrative director; a superseding indictment
handed down in the Corrente case on April 2, 2001, added the mayor
and three other defendants. Id.
On August 8, 2000, while Corrente was awaiting trial and
the grand jury investigation of other, later named defendants was
continuing, the district court entered a protective order
prohibiting counsel in the Corrente case from disclosing the
contents of audio and video surveillance tapes that had been made
by law enforcement officials and furnished to defense counsel
during discovery. The aim was to safeguard the on-going grand jury
investigation of Cianci and to avoid pretrial publicity that could
prejudice the defendants' right to a fair trial. In re Special
Proceedings, 291 F. Supp. 2d at 47.
The order, assented to by both sides, read:
Upon Motion of the government, and with the
consent of all parties, and for good cause
having been shown, it is hereby ORDERED that
the consensual audio and video recordings
("Recordings") discoverable in the above-
captioned matter shall be subject to the
-3-
following protective order. Counsel are
hereby ordered not to disclose the contents of
said Recordings to any persons other than the
defendant or those deemed essential by counsel
for the preparation of their client's defense,
or in the case of the government, in the
preparation for trial or as part of any
continuing investigation. All motions or
other filings which cite any portion of the
Recordings other than by reference shall be
filed under seal until further order of this
Court. Nothing in this order shall prevent
any party from moving for relief from this
order for good cause shown.
The order was entered by Judge Lagueux. On April 10, 2001, just
after the handing down of the superseding indictment, the case was
transferred to Chief Judge Torres.
On February 1, 2001, while the grand jury investigation
of Cianci was still in progress, James Taricani, an investigative
television reporter, and his employer WJAR Channel 10, a Providence
television station owned and operated by NBC, aired one of the
videotapes. In re Special Proceedings, 291 F. Supp. 2d at 46-47.
The tape in question showed a government witness handing Corrente
an envelope that allegedly contained a cash bribe for Corrente
and/or Cianci. Id. at 47. Who leaked the tape was not disclosed:
Taricani said he had given the source a pledge of confidentiality.
Defendants then asked the district court to investigate
whether any participant in the case had violated the protective
order by leaking the tape to Taricani and, if so, to impose
appropriate sanctions. On May 31, 2001, the district court issued
an order stating in part:
-4-
The release and/or disclosure of the
contents of the aforesaid videotape is a
serious matter. Such acts, if continued,
could threaten the rights of all parties to a
fair trial. In addition, the release and/or
disclosure appear to have violated both the
confidentiality of Grand Jury proceedings and
the August 8, 2000, protective order. If so,
such release and/or disclosure may constitute
criminal contempt. See, Fed. R. Crim. P. R.
6(e).
The order continued by explaining that such a matter
would ordinarily be referred to the Department of Justice for
investigation; but because government prosecutors were involved in
the pending case against Corrente and others, the court decided to
appoint Marc DeSisto, a private attorney (who had formerly been a
prosecutor), to act as special prosecutor to investigate the
disclosure and to prosecute for criminal contempt anyone against
whom adequate evidence was uncovered.
After interviewing approximately fourteen individuals and
deposing several, and "[h]aving exhausted what he believed to be
all other means of obtaining the information necessary to conclude
his investigation," DeSisto sought and received the issuance of a
subpoena by the court requiring Taricani to appear for a
deposition. In re Special Proceedings, 291 F. Supp. 2d at 47. At
the deposition, Taricani refused to answer any questions regarding
the identity of the person from whom he had received the tape,
asserting a "newsman's privilege" not to reveal confidential
sources. Id. at 47-48. DeSisto then filed a motion to compel,
-5-
which the district court granted after a hearing on October 2,
2003. Id. at 47-48, 60.
Following an abortive appeal from the order compelling
testimony, which this court dismissed as premature, Taricani
appeared at a February 13, 2004, deposition. Again he refused to
answer questions about his source for the tape. After a hearing,
the district court on March 16, 2004, found Taricani in civil
contempt, gave him until noon the following day to purge himself of
the contempt order by answering the questions posed by the special
prosecutor, and ordered him to pay a sum of $1,000 a day for each
day thereafter until he complied.
Taricani then sought review, and a stay, of the civil
contempt order. We granted a stay of the order pending expedited
review; our stay order expressed doubts about Taricani’s prospects
(in light of Branzburg v. Hayes, 408 U.S. 665 (1972)), but said
that the claimed threat to First Amendment interests justified a
stay, given our expedition of the appeal and the lack of
demonstrable harm from a brief further delay in the investigation.
On appeal, Taricani first argues that because the
district court failed to ask the government to pursue the criminal
proceeding, the appointment of the special prosecutor violated Fed.
R. Crim. P. 42(a)(2), the Supreme Court decision that prompted it,
Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787
-6-
(1987), and separation of powers principles said to underlie the
Young decision.
Young overturned a lower court decision appointing a
self-interested special prosecutor to pursue a contempt proceeding.
Young, 481 U.S. at 802, 814. However, the Young decision also said
that the rationale for a court to appoint its own prosecutor was
“necessity” and therefore “a court ordinarily should first request
[the government] to prosecute contempt actions, and should appoint
a private prosecutor only if that request is denied.” Id. at 801.
Rule 42 was amended in 2002 (“to reflect the holding in Young,”
advisory committee note) by adding the following language:
Appointing a Prosecutor. The court must
request that the contempt be prosecuted by an
attorney for the government, unless the
interest of justice requires the appointment
of another attorney. If the government
declines the request, the court must appoint
another attorney to prosecute the contempt.
Fed. R. Crim. P. 42(a)(2).
Taricani, of course, has been held in civil contempt–-not
criminal contempt governed by Rule 42-–but the civil contempt arose
out of the investigation by, and at the request of, DeSisto who was
appointed to conduct a criminal contempt investigation governed by
Rule 42 and Young. Taricani’s view is that the supposed Rule
42/Young violation is so fundamental that it undermines the
district court’s authority to compel by civil contempt answers to
-7-
questions propounded by such a prosecutor in a criminal proceeding
even if the court wants them answered.
Some case law suggests that Taricani may not be entitled
to resist a court’s otherwise lawful order to answer by pointing to
some antecedent defect in the proceedings. See United States
Catholic Conference v. Abortion Rights Mobilization, Inc., 487 U.S.
72, 76-77 (1988); Blair v. United States, 250 U.S. 273, 282 (1919).
And, despite Taricani’s claim to the contrary, no defect in the
special prosecutor’s commission affects the “subject matter
jurisdiction” of the district court over a proceeding to detect and
punish violations of its orders.
Nevertheless, Taricani has a direct and immediate
interest in whether he is held in civil contempt and the alleged
flaw could be judicially redressed, so a case or controversy exists
within the meaning of Article III. See Steel Co. v. Citizens for
a Better Environment, 523 U.S. 83, 102-03 (1998); Mangual v.
Rotger-Sabat, 317 F.3d 45, 56 (1st Cir. 2003). Whether Taricani
can contest the prosecutor’s authority is primarily a matter of
prudential standing doctrine--not Article III, cf. Secretary of
State of Md. v. Joseph H. Munson Co., Inc., 467 U.S. 947, 955
(1984), and DeSisto’s authority vel non should be resolved.
Young says that the government should “ordinarily” be
asked to handle contempt prosecutions; Rule 42(a)(2), which the
Supreme Court approved as a gloss on Young, says that it must be
-8-
asked to do so “unless the interest of justice requires the
appointment of another attorney.” Fed. R. Crim. P. 42(a)(2). So
the district court was entitled to appoint DeSisto without asking
the government to handle the case if the district court permissibly
found that "the interest of justice require[d]" it. The district
court made such a finding and the question before us is whether its
finding should be upheld.
“Interest of justice” is a general and widely used
phrase. E.g., Fed. R. Crim. P. 21(b), 33(a); Fed. R. Civ. P.
26(d); 28 U.S.C. §§ 1404(a), 1631 (2000). Application of such a
legal standard to known facts presents an issue of law, but one
usually inviting deferential review.1 This is so because of the
standard's generality, the range of circumstances to which it must
be applied, and the district court's familiarity with the unique
facts of a case. Cf. United States v. Roberts, 978 F.2d 17, 21-22
(1st Cir. 1992).
Taricani suggests that because Young is allegedly
constitutional doctrine, no deference should be given to the
district court's ruling and we should engage in de novo review.
But Young was not expressed as a constitutional requirement; the
decision imposed a prudential limitation explicitly grounded in the
court's supervisory power. Young, 481 U.S. at 790. Thus we need
1
Stewart Org., Inc., 487 U.S. at 29-30; In re Middlesex Power
Equipment & Marine, Inc., 292 F.3d 61, 69 (1st Cir. 2002); Cianbro
Corp. v. Curran-Lavoie, Inc., 814 F.2d 7, 11 (1st Cir. 1987); In re
Globe Newspaper Co., 920 F.2d 88, 93 (1st Cir. 1990).
-9-
not consider whether de novo review is required for all law-
application issues involving constitutional issues. Compare United
States v. Frederick, 182 F.3d 496, 499 (7th Cir. 1999) (Posner,
C.J.), cert. denied, 528 U.S. 1154 (2000), with id. at 503-05
(Wood, J., concurring).
On the merits, the district judge had multiple reasons
for concern about having the government handle the matter. The two
corruption cases, yet to be tried, were the subject of much public
attention. If the investigation focused on the defense attorneys–-
one possible source of any leak–-government attorneys might seem to
be harassing an adversary. See FTC v. Am. Nat. Cellular, 868 F.2d
315, 319 (9th Cir. 1989). Further, as the prosecution was also a
possible source of the leak, some might think that the government
could not be fully trusted to pursue its own lawyers.2
Taricani says that the Department of Justice has
procedures that would allow government prosecutors from outside
Rhode Island to take over if that were needed (citing United States
Attorney's Manual, §§ 3-2.170; 3-2.171; 3-2.220 (2000 Supp.)).
This sometimes resolves any actual conflict of interest, see United
States v. Vlahos, 33 F.3d 758, 763 n.5 (7th Cir. 1994); cf. United
States v. Caggiano, 660 F.2d 184, 190-91 (6th Cir. 1981), cert.
2
Indeed, on April 9, 2001, the lead prosecutor for the
government notified the district court that he had himself violated
the terms of the protective order by playing for three other
persons not necessary to the case a portion of the same videotape
at issue in this case. See In re Providence Journal Co., Inc., 293
F.3d 1, 5 (1st Cir. 2002).
-10-
denied, 454 U.S. 1149 (1982), but this solution would not
necessarily have banished the public impression of a conflict in
this case. Young itself was importantly concerned with the public
impression left by the choice of prosecutor. 581 U.S. at 811.
We would not ourselves have been troubled if the district
court had tendered the contempt investigation to the Department of
Justice on the understanding that it would be handled by another
federal prosecutor's office rather than by the Rhode Island U.S.
Attorney. But the district court was far more familiar than an
appellate court with the conditions in Rhode Island and the extent
of the surrounding publicity. Its decision that the interest of
justice required a special prosecutor was not unreasonable or
otherwise improper.
Taricani argues that the district court's decision to
appoint a special counsel was “prejudicial” for two reasons:
because under regulations of the Attorney General, a government
prosecutor allegedly could not have subpoenaed Taricani to testify
and because a government prosecutor, proceeding through a grand
jury, would have been subject to greater checks than a special
prosecutor. Having concluded that it was not "error" to appoint a
special prosecutor, the question whether any error was prejudicial
is beside the point.
So far as Taricani is arguing that the Attorney General's
regulations should be imposed on DeSisto by the courts, the short
-11-
answer is that a government prosecutor could have subpoenaed
Taricani consistent with the regulations. These require that
reasonable grounds exist to believe that a crime has occurred and
that prior efforts have been made by the prosecutor to get the
necessary information from non-media sources. 28 C.F.R. §§
50.10(b),(f)(1)-(3) (2003). The regulations are not themselves
binding on the special prosecutor;3 but, as the same requirements
could be urged as a matter of judicial discretion, we explain
briefly why they would not affect the outcome in this case.
First, Taricani says that there is no firm proof that
anyone violated the protective order, pointing out that the order
was directed to "counsel" and that other persons may have had
access to the tapes. This may assume too narrow a reach for the
protective order, but it does not matter: there is certainly a
reasonable possibility that counsel, or someone in league with
counsel, leaked the tape. DeSisto is entitled to investigate the
reasonable possibility of criminal contempt; certainty is not
required.
3
The regulation states that "the following guidelines shall be
adhered to by all members of the Justice Department in all cases,"
28 C.F.R. § 50.10 (2003), but a special prosecutor is not a member
of the Justice Department. The regulations also say that "[t]he
principles set forth in this section are not intended to create or
recognize any legally enforceable right in any person." Id. §
50.10(n). Case law points in the same direction, see In re Shain,
978 F.2d 850, 853-54 (4th Cir. 1992); cf. Yongo v. INS, 355 F.3d
27, 31 (1st Cir. 2004).
-12-
Second, Taricani argues that there are no findings by the
district court that DeSisto exhausted other possible sources of
information. Yet, the special prosecutor described to the district
court his prior efforts to unearth the leaker without the
reporter's help, stating that he had exhausted realistic
alternatives. In re Special Proceedings, 291 F. Supp. 2d at 47.
Taricani does not identify as a likely source of the information
sought anyone beyond the fourteen witnesses interviewed or deposed.
As for the lack of checks on the special prosecutor, we
agree that–-special circumstances aside--the optimal arrangement
for criminal prosecution is for a government lawyer to take the
lead. But special prosecutors drawn from outside the executive
branch have an established history and more recent judicial
sanction, Young, 481 U.S. at 794-802; and the concern about an
appearance of conflict of interest made the case special. Judicial
oversight is available if a prosecutor oversteps the bounds.
Taricani’s principal substantive argument on appeal is
that it violates the First Amendment to hold him in civil contempt
for refusing to answer questions as to who leaked the taped
material to him. When he refused to answer, the civil contempt
citation followed. The First Amendment argument is an uphill one
in light of the Supreme Court's Branzburg decision, but it has
several facets and we take them in order.
-13-
In Branzburg, the Supreme Court flatly rejected any
notion of a general-purpose reporter's privilege for confidential
sources, whether by virtue of the First Amendment or of a newly
hewn common law privilege. Id. 408 U.S. at 682, 690-91, 701. The
Court stressed inter alia the importance of criminal
investigations, the usual obligation of citizens to provide
evidence, and the lack of proof that news-gathering required such
a privilege. Id. at 685-707. Justice Powell, who wrote separately
but joined in the majority opinion as the necessary fifth vote,
also rejected any general-purpose privilege. Id. at 709-10.
Branzburg governs in this case even though we are dealing
with a special prosecutor rather than a grand jury. Taricani says
that there ought to be a stiffer test for special prosecutors but
the considerations bearing on privilege are the same in both cases.
This is the view of all three circuits that have recently dealt
with variants of the problem.4 A now elderly Ninth Circuit case
deemed Branzburg to be limited to grand juries, Farr v. Pitchess,
522 F.2d 464, 468 (9th Cir. 1975), but reached the same result on
a balancing test.
What Branzburg left open was the prospect that in certain
situations--e.g., a showing of bad faith purpose to harass--First
Amendment protections might be invoked by the reporter. 408 U.S.
4
McKevitt v. Pallasch, 339 F.3d 530, 531, 533 (7th Cir. 2003);
United States v. Smith, 135 F.3d 963, 971 (5th Cir. 1998); In Re
Shain, 978 F.2d 850, 852 (4th Cir. 1992).
-14-
at 707-08. Lower court cases in this circuit5 and elsewhere6 have
underscored this possibility of limits although often finding
nothing extraordinary about their own facts. One distinguished
judge has questioned whether Branzburg now offers protection much
beyond what ordinary relevance and reasonableness requirements
would demand, see McKevitt, 339 F.3d at 532 (Posner, J.), but our
own cases are in principle somewhat more protective.
The three leading cases in this circuit require
"heightened sensitivity" to First Amendment concerns and invite a
"balancing" of considerations (at least in situations distinct from
Branzburg). Cusumano, 162 F.3d 716-17; LaRouche, 841 F.2d at 1182-
83; Bruno, 633 F.2d at 596-99. In substance, these cases suggest
that the disclosure of a reporter's confidential sources may not be
compelled unless directly relevant to a nonfrivolous claim or
inquiry undertaken in good faith; and disclosure may be denied
where the same information is readily available from a less
sensitive source. See Cusumano, 162 F.3d at 716-17; LaRouche, 841
F.2d at 1180; Bruno, 162 F.3d at 597-98.
5
Cusumano v. Microsoft Corp., 162 F.3d 708 (1st Cir. 1998);
United States v. LaRouche Campaign, 841 F.2d 1176 (1st Cir. 1988);
Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583 (1st
Cir. 1980); see also In re Grand Jury Proceedings Involving
Vickers, 38 F. Supp. 2d 159, 162 n.3 (D.N.H. 1998).
6
E.g., United States v. Smith, 135 F.3d at 969; In re Grand
Jury Proceedings, 5 F.3d 397, 400-02 (9th Cir. 1993), cert. denied,
510 U.S. 1041 (1994); In Re Shain, 978 F.2d at 852-53; In re Grand
Jury Proceedings, 810 F.2d 580, 586 (6th Cir. 1987).
-15-
How far these constraints may be constitutional
requirements (as opposed to prudential considerations) is
unsettled; the Supreme Court twice rejected any automatic
requirement that non-confidential sources be exhausted. Univ. of
Pa. v. EEOC, 493 U.S. 182, 201 (1990); Branzburg, 408 U.S. at 701-
02. In all events, in this case there is no doubt that the request
to Taricani was for information highly relevant to a good faith
criminal investigation; and, as already noted, that reasonable
efforts were made to obtain the information elsewhere.
Taricani next argues that the original August 8, 2000,
protective order, whose apparent violation spurred the special
prosecutor’s inquiry, is itself unlawful for lack of specific
findings to show need. The original protective order, consented to
by both sides, did not contain explicit findings of need, but the
potential of the tapes to taint prospective jurors was so obvious
that it did not need to be spelled out. It is enough to note that
the tape broadcast by Taricani could be interpreted as recording an
actual pay-off implicating high level officials.7
7
We bypass the question whether Taricani has standing to
contest an order that did not apply to him, see In re Globe
Newspaper Co., 729 F.2d 47, 50 & n.2 (1st Cir. 1984)(doubting
without deciding); Application of Dow Jones & Co., Inc., 842 F.2d
603, 606-07 (2d Cir.), cert. denied, 488 U.S. 946 (1988), and the
separate question, noted above, whether the defects alleged by
Taricani are of a sort that would permit him to disobey the order.
See United States Catholic Conference, 487 U.S. at 76-77; Blair,
250 U.S. at 282.
-16-
Alternatively, Taricani complains that the original
protective order was too narrow (and therefore pointless and
invalid) because it was directed only to counsel on both sides.
Others, says Taricani, would also have had access to the tapes
(e.g., the agents who originally made the tapes). To us it is
enough that the protective order--entered in connection with the
turning over of the tapes to defense counsel--even-handedly
prohibited disclosure by counsel on both sides and dealt with
obvious sources of disclosure.
Next, Taricani complains that the $1,000-a-day fine
threatened is "punitive"; but its obvious purpose is to compel
compliance and far more severe fines for civil contempt have been
upheld for this purpose. See Int'l Union, United Mine Workers v.
Bagwell, 512 U.S. 821, 830 (1994); United States v. Mongelli, 2
F.3d 29, 30 (2d Cir. 1993); see also In re Power Recovery Sys.,
Inc., 950 F.2d 798, 801-02 (1st Cir. 1991).
Finally, we turn to an ancillary matter. In September
2002, Taricani and his television station WJAR moved to unseal all
documents filed with the court in the special prosecutor's
investigation and to provide Taricani with a copy of his deposition
transcript. In June 2003, the district court denied the motion,
save for one document, saying that
the remaining documents filed in this matter
relate to the on-going investigation being
conducted by the special prosecutor; and,
since publicizing those documents is likely to
-17-
compromise the investigation by revealing
details that could cause the responsible party
or parties to conceal evidence, seek to
discourage or influence witnesses, or
otherwise impede the investigation, those
remaining documents will remain sealed.
Taricani and the station appealed from this order. While
this appeal was pending, the district court on March 11, 2004,
unsealed all but four of the records in question. In its new
order, the court said that so far as the sealed documents related
to the questions put to Taricani and his refusal to answer, the
matter had already become public so there was no longer any purpose
served by keeping confidential the documents relating to that
issue.
This leaves at issue on appeal the four remaining
documents still under seal and Taricani's deposition transcript.
The four documents relate to the special prosecutor's ongoing
investigation. As to the deposition transcript, it appears from
his brief that the district court was willing to allow Taricani
copies of his deposition on condition that he and his lawyer agree
to keep the transcripts confidential, but Taricani is not satisfied
with this solution.
Taricani and WJAR argue for access to the deposition
transcript and the four remaining sealed documents on the grounds
that "[t]he public has a constitutional and common law right of
access to court records." Although judicial proceedings are
presumptively public, see Richmond Newspapers, Inc. v. Virginia
-18-
448 U.S. 555, 580 (1980); In re Boston Herald, Inc., 321 F.3d 174,
182-83 (1st Cir. 2003), there are exceptions and one of the best
settled is that there is no general right of public access to the
proceedings of a grand jury or to documents generated by those
proceedings.8
Here the documents have been sealed as part of the
investigation by a special prosecutor and not a grand jury
investigation. Yet the principal reasons for grand jury secrecy–-
to protect the innocent against unfair publicity and to prevent
tampering or escape by targets, Douglas Oil Co. v. Petrol Stops
Northwest, 441 U.S. 211, 219 n.10 (1979)–-apply with equal force
here. What the special prosecutor is currently doing is
sufficiently like what a grand jury would do to make the analogy
decisive.
Taricani may be arguing that as a witness he has an
elevated right to copies of his own deposition transcript.
However, in this circuit "a grand jury witness has no general right
to transcripts of his testimony." In re Bianchi, 542 F.2d 98, 100
(1st Cir. 1976). Similarly, a majority of circuits hold that a
non-defendant witness seeking access to his own deposition
transcript must make "a strong showing of particularized need” for
8
Fed. R. Crim. P. 6(e); In re Boston Herald, Inc., 321 F.3d
at 183; see Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 9
(1986); Globe Newspaper Co. v. Pokaski, 868 F.2d 497, 509 (1st Cir.
1989); accord In re Motions of Dow Jones & Co., 142 F.3d 496,
499-503 (D.C. Cir.), cert. denied, 525 U.S. 820 (1998); United
States v. Smith, 123 F.3d 140, 143, 149 (3d Cir. 1997).
-19-
such disclosure. In re Grand Jury Subpoena, 72 F.3d 271, 274 (2d
Cir. 1995)(quoting United States v. Sells Eng'g, Inc., 463 U.S.
418, 443 (1983)). A few circuits take a contrary view, id. at 275
(collecting cases), but are at odds with Bianchi.
In this case Taricani has given no reason, compelling or
otherwise, to explain his need for the transcript. By contrast,
the district court took steps to accommodate any need Taricani
might have for the transcript by offering Taricani and his counsel
access to the deposition testimony as long as they agreed to keep
the transcript confidential. Taricani has said nothing to explain
why this option is not enough to serve any legitimate interest he
may have as a witness.
Affirmed.
-20-