United States v. Smith

REVISED - March 20, 1998

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-30320

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

versus
FRANK SMITH,
Defendant,
TAYLOR HENRY;
WDSU-TELEVISION INC.,
Movants-Appellees.

Appeal from the United States District Court
for the Eastern District of Louisiana

February 23, 1998

Before POLITZ, Chief Judge, HIGGINBOTHAM and DeMOSS, Circuit
Judges.

HIGGINBOTHAM, Circuit Judge:

The government appeals from a district court order quashing a

subpoena compelling the production at a criminal trial of a

videotape recording of an interview of the defendant by a local

television station. The district court held that the

newsreporters’ qualified privilege protected from disclosure to the

government of unaired portions of the interview conducted by Taylor

Henry on behalf of WDSU-Television, Inc. Finding that there is no

privilege under the circumstances of this case, we vacate the

district court’s order and remand for further proceedings.

I.
 On March 21, 1996, two successive fires destroyed the

MacFrugal’s Regional Distribution Center in New Orleans, Louisiana.

After federal agents spoke with him, Frank Smith, an employee at

the center, became aware that he was under suspicion for setting

the fires. On March 27, 1996, Smith contacted WDSU-TV and

represented that he had information regarding the cause of the

fires. That day, Taylor Henry, a reporter with WDSU-TV, videotaped

his interview with Smith. During the interview, Smith accused

others of burning down the structure.

Later that same day, Smith met with New Orleans Fire

Department Superintendent Warren McDaniels. Superintendent

McDaniels, with Smith’s consent, tape recorded their conversation.

Smith informed Superintendent McDaniels that after the first fire

occurred, he overheard the manager and assistant manager of the

distribution center plotting to set the second blaze, at the

direction of the MacFrugal’s Corporate Office in California.

Superintendent McDaniels later provided his tape recording to the

government.

The next day, the Bureau of Alcohol, Tobacco, and Firearms

also interviewed Smith. Again, Smith repeated his story about

overhearing a plot to set the second fire, but the version of

events he gave to the BATF differed slightly from the one he

provided to Superintendent McDaniels.

On April 2, 1996, the government arrested Smith on charges

that he had set the first of the two fires. Following his arrest,

WDSU-TV televised a small portion of its interview with Smith. In

2
the ten second segment aired on television, Smith claimed that he

overheard the manager and assistant manager of the distribution

center plotting to set the second fire. Smith’s face was obscured

in the footage, but he was identified by name. On April 26, 1996,

a grand jury indicted Smith and charged him with setting the first

of the two fires at the distribution center. By this time, the

BATF had determined that an electrical overload had caused the

second fire, not arson. The BATF’s conclusion, of course, rendered

suspicious Smith’s assertions that he had overheard a plot to set

the second fire.

The government decided that it wanted as evidence the entire

WDSU-TV interview, hoping that it would contain more of Smith’s

allegedly false accusations. On April 23, 1996, the government

requested that WDSU-TV provide it with a copy of both the televised

and untelevised portions of the interview. WDSU-TV expressed a

general willingness to cooperate with the prosecution, but it

refused to turn over any footage to the government absent a

subpoena. The government then obtained a subpoena for the aired

portion of the interview, with which WDSU-TV complied.

To procure a subpoena for the untelevised portions of the

videotape, the Attorney General’s Guidelines required the

prosecutors first to obtain the Attorney General’s authorization.

On May 16, 1996, after receiving the necessary approval, the

government filed a motion asking the district court to issue a Rule

17(c) subpoena to Taylor Henry and WDSU-TV (collectively WDSU-TV

hereinafter) for the untelevised portion of their interview

3
videotape. Believing that the videotape might contain exculpatory

evidence, Smith later joined the government’s subpoena request.

WDSU-TV responded by moving to quash the subpoena on First

Amendment grounds, claiming a newsreporters’ privilege. On July 2,

1996, the district court issued an order granting WDSU-TV’s motion,

citing WDSU-TV’s First Amendment rights. On July 24, 1996, the

government filed notice of interlocutory appeal from the court’s

order. However, on October 22, 1996, the government agreed to a

request by WDSU-TV to dismiss its appeal without prejudice, so that

the district court could inspect the videotaped interview in

camera. After doing so, the district court entered a second order

on February 25, 1997, confirming its initial decision to quash the

subpoena. The court ruled that the government’s interest in the

interview was not sufficient to defeat WDSU-TV’s qualified

privilege, as the videotape contained evidence that was cumulative

of what the government already possessed. On March 21, 1997, the

government reinstated its original appeal. Although Smith

originally joined in the government’s subpoena request, he neither

joined nor opposed any of its appeals.

II.

Before reaching the merits of the district court’s order, we

must first consider our jurisdiction. WDSU-TV asserts that the

government may not appeal from the district court’s order quashing

the subpoena. It argues both that the order was not an appealable

final order under 28 U.S.C. § 1291 and that the government may not

avail itself of the appellate route set forth in 18 U.S.C. § 3731.

4
We need not reach WDSU-TV’s § 1291 argument, however, because we

find jurisdiction to entertain this appeal pursuant to § 3731.

Title 18, U.S.C. § 3731, permits the United States to appeal

orders “suppressing or excluding” evidence in criminal cases so

long as the relevant United States Attorney “certifies to the

district court that the appeal is not taken for purpose of delay

and that the evidence is substantial proof of a fact material in

the proceeding.” 18 U.S.C. § 3731. The government must take its

appeal under § 3731 within thirty days of the district court order

being challenged. See id.

We have little difficulty concluding that § 3731 affords the

government a basis for an appeal. Section 3731 provides the

government with as broad a right to appeal as the Constitution will

permit. See United States v. Wilson, 420 U.S. 332, 337 (1975).

Here, the district court’s order quashing the WDSU-TV subpoena is

a ruling that effectively “suppress[es] or exclud[es] evidence . .

. in a criminal proceeding,” as the district court denied the

government the videotaped evidence on the basis of privilege.

Furthermore, Smith’s allegedly false allegations contained in the

videotape make it “substantial proof of a fact material in the

proceeding.” Finally, the government’s appeal certainly was not

brought for “the purpose of delay,” as the defendant has in no way

opposed the appeal or complained about delay.

WDSU-TV, however, contends that the government’s appeal under

§ 3731 was untimely. The district court entered its first quashing

order on July 2, 1996. Pursuant to § 3731, the government

5
certified its appeal from that order, but it did not do so until

October 21, 1996, as it was confused about the statutory basis for

its appeal. Upon WDSU-TV’s request, the government voluntarily

dismissed its first appeal without prejudice to its reinstatement,

to allow the district court to review the videotaped evidence in

camera. After the district court again quashed the subpoena

following the in camera inspection, the government reinstated its

original appeal. However, it did not file a new certificate.

Hence, WDSU-TV claims that the government is now barred from

appealing under § 3731, as the government missed the thirty-day

certification deadline following both court orders.

As we have previously stressed, § 3731’s timing requirements

are not jurisdictional; we may still entertain § 3731 appeals

certified in an untimely manner. See United States v. Crumpler,

507 F.2d 624, 624 (5th Cir. 1975). Whether the government met the

thirty-day time limit is relevant only in considering the

“equities” of its appeal. See United States v. Miller, 952 F.2d

866, 875 (5th Cir.), cert. denied, 505 U.S. 1220 (1992). We find

that the equities here all lie in the government’s favor.

First, the government effectively complied with the thirty-day

time limit in its appeal from the second district court order. As

the statute instructs, before appealing the first time the

government considered whether its appeal would delay justice and

whether it sought substantial proof of a material fact. Although

the district court later ruled that the videotaped evidence was

cumulative, the government in its reinstated appeal need not have

6
reconsidered its appellate strategy in light of the district

court’s decision. Rather, the government was entitled to maintain

its position that it was seeking important evidence for non-

dilatory purposes. The reinstated appeal was filed within thirty

days of the second district court order. Thus, we view the

government’s reinstated appeal as incorporating the proper, but

untimely, § 3731 certification from its first appeal.

Second, the purpose of § 3731’s thirty-day appellate deadline

is to prevent the government from denying a speedy trial to a

defendant by needlessly appealing evidentiary rulings. See United

States v. Herman, 544 F.2d 791, 794 (5th Cir. 1977). The defendant

therefore is the person that might be harmed by the government’s

stalling tactics, not a third party in possession of evidence.

Here, the defendant himself joined in the government’s subpoena for

the videotape and has not opposed this appeal, so presumably he is

not concerned about delay.

Thus, the equities in this appeal favor the government. The

government effectively complied with the time limit in the statute.

To the extent that the government did not follow the precise letter

of the law, the defendant, the person meant to be protected by §

3731, suffered no harm. Accordingly, we find it appropriate to

exercise appellate jurisdiction under 18 U.S.C. § 3731.

III.

The district court held that reporters possess a qualified

privilege not to divulge nonconfidential information in criminal

cases. It based this conclusion on a reading of our major

7
pronouncement on the newsreporters’ privilege, Miller v.

Transamerican Press, 621 F.2d 721, 725 (5th Cir. 1980), cert.

denied, 450 U.S. 1041 (1981), and on precedents from other

circuits. Applying the privilege after an in camera inspection of

the evidence, the court determined that the government was not

entitled to the videotape outtakes, as they were cumulative of what

the government already had in its possession. We find, however,

that the district court erred in granting WDSU-TV a privilege under

these circumstances.

Any discussion of the newsreporters’ privilege must start with

an examination of Branzburg v. Hayes, 408 U.S. 665 (1972), the

Supreme Court’s most detailed exposition on the subject. In

Branzburg, various grand juries subpoenaed newsreporters and

ordered them to testify as to the identity of the confidential

sources for their stories. The newsreporters refused to comply

with the subpoenas, citing the First Amendment. The Supreme Court,

however, rejected their freedom-of-the-press argument, concluding

that newsreporters have the same obligation to testify before a

grand jury as any other citizen. See id. at 690. Although the

Court recognized that it would be a burden, albeit an “uncertain”

one, for newsreporters to reveal their sources, it held that the

public’s interest in law enforcement outweighed the concerns of the

press. See id. at 690-91. Consequently, the Court explicitly

rejected a qualified newsreporters’ privilege shielding

confidential source information from grand juries. See id. at 702-

08. The Court instructed that the needs of the press are not to be

8
weighed against the needs of the government in considering grand

jury subpoenas. See id. at 705-06.

Although the opinion of the Branzburg Court was joined by five

justices, one of those five, Justice Powell, added a brief

concurrence. For this reason, we have previously construed

Branzburg as a plurality opinion. See In re Selcraig, 705 F.2d

789, 793 (5th Cir. 1983) (analyzing Branzburg). In his concurring

opinion, Justice Powell stated:

The asserted claim to privilege should be judged on its facts
by the striking of a proper balance between freedom of the
press and the obligation of all citizens to give relevant
testimony with respect to criminal conduct. The balance of
these vital constitutional and societal interests on a case-
by-case basis accords with the tried and traditional way of
adjudicating such questions.

Branzburg, 408 U.S. at 710 (Powell, J., concurring).

Although some courts have taken from Justice Powell’s

concurrence a mandate to construct a broad, qualified

newsreporters’ privilege in criminal cases, see, e.g., United

States v. LaRouche Campaign, 841 F.2d 1176, 1182 (1st Cir. 1988);

United States v. Cuthbertson, 630 F.2d 139, 147 (3d Cir. 1980),

cert. denied, 449 U.S. 1126 (1981), we decline to do so. Justice

Powell’s separate writing only emphasizes that at a certain point,

the First Amendment must protect the press from government

intrusion. To Justice Powell, however, that point occurs only when

the “grand jury investigation is not being conducted in good

faith.” Branzburg, 408 U.S. at 710 (Powell, J., concurring).

Justice Powell reasoned that “if the newsman is called upon to give

information bearing only a remote and tenuous relationship to the

9
subject of the investigation, or if he has some other reason to

believe that his testimony implicates confidential source

relationships without a legitimate need of law enforcement, he will

have access to the court on a motion to quash.” Id. Justice Powell

had in mind the “harassment of newsmen.” Id. at 709; see also In re

Grand Jury Proceedings, 5 F.3d 397, 401 (9th Cir. 1993) (reading

Branzburg and concluding that Justice Powell meant only to protect

newsreporters from intentional harassment by the government), cert.

denied, 510 U.S. 1041 (1994); In re Grand Jury Proceedings, 810

F.2d 580, 587-88 (6th Cir. 1987) (same). In the end, Justice

Powell’s concurrence highlighted a limit on the government’s

subpoena power also recognized by the plurality opinion. See

Branzburg, 408 U.S. at 699-700 (noting that the Court was not

reaching the question of an abusive grand jury investigation). It

did not argue for a general qualified privilege for newsreporters

in criminal cases.1 A single subpoena issued only after considered

decision by the Attorney General of the United States to compel

production of evidence at a federal trial of a multicount felony

1
Subsequent statements by the Supreme Court and individual
justices confirm this understanding of Branzburg. See University
of Pa. v. EEOC, 493 U.S. 182, 201 (1990) (“In Branzburg, the Court
rejected the notion that under the First Amendment a reporter could
not be required to appear or to testify as to information obtained
in confidence without a special showing that the reporter’s
testimony was necessary.”); New York Times, Co. v. Jascalevich, 439
U.S. 1301, 1302 (1978) (White, J., in chambers) (denying stay)
(“There is no present authority in this Court that a newsman need
not produce documents material to the prosecution or defense of a
criminal case, or that the obligation to obey an otherwise valid
subpoena served on a newsman is conditioned upon the showing of
special circumstances.”) (citation to Branzburg omitted).

10
indictment is no harassment. Calling it such presupposes a clear

privilege. On the facts, that is not this case.

WDSU-TV is not here seeking a privilege against disclosing

confidential source information, which the Court rejected in

Branzburg. Rather, it argues that journalists deserve a qualified

privilege in their nonconfidential work product, so as to protect

the media as an institution. According to WDSU-TV, such a

privilege would be akin to the attorney work-product privilege,

designed to promote effective representation of clients, and the

executive privilege, intended to aid the operation of the executive

branch. WDSU-TV argues that it deserves a similar, “institutional”

privilege, because even the disclosure of nonconfidential

information to the government can unduly burden its First Amendment

rights. It contends that absent a privilege, prosecutors will

“‘annex’ the news media as ‘an investigative arm of government.’”

Branzburg, 408 U.S. at 709 (Powell, J., concurring). On this

theory, future news-sources will be wary of the media’s close

connection to the government, so they will hesitate before

approaching reporters, even for on-the-record interviews. In

addition, WDSU-TV argues that without a privilege, the media will

be swamped with criminal discovery requests. Having to respond to

these requests would hamper the media’s ability to provide the

public with newsworthy information. As a result, contends WDSU-TV,

rather than comply with future demands for evidence, the media

might instead simply destroy its work product once it was printed

or aired, thereby depriving itself of valuable archival material.

11
Alternatively, WDSU-TV fears that the press might hesitate before

reporting on important matters that could get it enmeshed in

criminal litigation.2

We find little support in either the plurality or the

concurring opinions of Branzburg for the sort of privilege that

WDSU-TV asks us to recognize.3 The newsreporters in Branzburg

argued compellingly as to how forcing them to divulge confidential

source information might ruin their ability to procure news in the

future. It is not difficult to imagine why confidential sources

would be reluctant to approach the media if they knew that the

press could be compelled to disclose their identities. Despite the

newsreporters’ strong First Amendment arguments, however, the

Branzburg Court rejected their call for a privilege. Here, on the

other hand, the danger that sources will dry up is less

substantial. WDSU-TV seeks to protect only nonconfidential

2
Several circuits have considered similar arguments and
extended the newsreporters’ privilege to nonconfidential work
product, either in civil or criminal cases. See Shoen v. Shoen, 5
F.3d 1289, 1294-95 (9th Cir. 1993) (civil case); LaRouche Campaign,
841 F.2d at 1182 (criminal case); von Bulow v. von Bulow, 811 F.2d
136, 143 (2d Cir.) (implying applicability in civil cases), cert.
denied, 481 U.S. 1015 (1987); Cuthbertson, 630 F.2d at 147
(criminal case). On the other hand, at least one circuit has
tacitly rejected a reporter’s privilege in a criminal case where
the information sought was nonconfidential. See In re Shain, 978
F.2d 850, 853 (4th Cir. 1992).
3
In reaching this conclusion, we consider only the interests
of the government in promoting effective law enforcement. Smith
also may have a Sixth Amendment interest in the outtakes to permit
him to conduct an effective defense. Because Smith did not join in
the government’s appeal, however, the government cannot assert and
we cannot rely upon Smith’s rights. See United States v. Fortna,
796 F.2d 724, 732 (5th Cir.) (holding that Sixth Amendment rights
of a defendant cannot be asserted vicariously), cert. denied, 479
U.S. 950 (1986).

12
information obtained from a person who wanted it aired when he gave

it and joined the government in seeking its production at trial.

It is not the “rights” of the informant that are here at issue.

Rather it is the rights of the newsmen. So it is that the press

argues that there is an in terrorem effect. Relatedly, the press

argues that the burdens will grow if this discovery is ordered

because it will make the press an arm of the prosecution. Yet

there is little reason to fear that on-the-record sources will

avoid the press simply because the media might turn over

nonconfidential statements to the government. Presumably, on-the-

record sources expect beforehand that the government, along with

the rest of the public, will view their nonconfidential statements

when they are aired by the media. WDSU-TV’s fears that

nonconfidential sources will shy away from the media because of its

unholy alliance with the government are speculative at best.

The other policy rationales advanced by WDSU-TV for a

nonconfidential information privilege are similarly unpersuasive.

Responding to discovery may well take valuable time, decreasing to

that extent resources available for newsreporting. Yet in the

immediate sense, the press here is not differently situated from

any other business that may find itself possessing evidence

relevant to a criminal trial. It has a relevant and protectible

interest in not being unduly burdened, as, for example, by overly

broad subpoenas for large amounts of data of dubious relevance.

But this burden is case specific. Not surprisingly, the Supreme

Court has consistently refused to exempt the media from the reach

13
of generally-applicable laws, simply because those laws might

indirectly burden its newsgathering function. See, e.g., Oklahoma

Press Publ’g Co. v. Walling, 327 U.S. 186, 192-94 (1946) (applying

Fair Labor Standards Act to the media, over First Amendment

objection); Associated Press v. United States, 326 U.S. 1, 7 (1945)

(applying Sherman Act to the media, over First Amendment

objection); Associated Press v. NLRB, 301 U.S. 103, 132-33 (1937)

(applying National Labor Relations Act to the media, over First

Amendment objection); Grosjean v. American Press Co., 297 U.S. 233,

250 (1936) (holding that the media is subject to nondiscriminatory

forms of taxation). We are pointed to no empirical basis for

assertions that the media will avoid important stories or destroy

its archives in response to rare requests for criminal discovery.

Indeed, in holding that the press is not exempt from government

searches and seizures, the Supreme Court considered and rejected

policy arguments parallel to those asserted here by WDSU-TV. See

Zurcher v. Stanford Daily, 436 U.S. 547, 563-67 (1978).

WDSU-TV, however, attempts to escape from the balance

Branzburg struck between the public’s interest in effective law

enforcement and the press’s First Amendment rights by arguing that

the Branzburg decision only applies to grand jury proceedings, not

the trial setting we have before us now. See, e.g., Riley v. City

of Chester, 612 F.2d 708, 714 (3d Cir. 1979) (limiting Branzburg to

grand jury context). Although the district court agreed with WDSU-

TV, we find little persuasive force in this distinction. Surely

the public has as great an interest in convicting its criminals as

14
it does in indicting them. As the Supreme Court has stated in the

context of the executive privilege: “The right to the production of

all evidence at a criminal trial . . . has constitutional

dimensions. . . . [T]he allowance of the privilege to withhold

evidence that is demonstrably relevant in a criminal trial would

cut deeply into the guarantee of due process of the law and gravely

impair the basic function of the courts.” United States v. Nixon,

418 U.S. 683, 711-12 (1974). Moreover, the Branzburg Court gave no

indication that it meant to limit its holding to grand jury

subpoenas:

On the records now before us, we perceive no basis for holding
that the public interest in law enforcement and in ensuring
effective grand jury proceedings is insufficient to override
the consequential, but uncertain, burden on news gathering
that is said to result from insisting that reporters, like
other citizens, respond to relevant questions put to them in
the course of a valid grand jury investigation or criminal
trial.

Branzburg, 408 U.S. at 690-91 (emphasis added).

Branzburg will protect the press if the government attempts to

harass it. Short of such harassment, the media must bear the same

burden of producing evidence of criminal wrongdoing as any other

citizen. As the Supreme Court has admonished, evidentiary

privileges are generally disfavored in the law. See Herbert v.

Lando, 441 U.S. 153, 175 (1979). We see no reason to create a new

one here and compelling reasons not to do so.

IV.

Thus, we find that Branzburg precludes the form of privilege

recognized by the district court and urged on us by WDSU-TV.

Nevertheless, WDSU-TV contends that our panel need not consider the

15
merits of a new privilege, for we are bound to apply one already

established by our court in Miller v. Transamerican Press, Inc.,

621 F.2d 721 (5th Cir. 1980), cert. denied, 450 U.S. 1041 (1981).

In Miller, we held that in civil libel suits, reporters possess a

qualified privilege not to disclose the identity of confidential

informants. To defeat this privilege, the discoverer must show

that: 1) the information is relevant; 2) it cannot be obtained by

alternative means; and 3) there is a compelling interest in the

information. See id. at 726. Miller concluded that this privilege

was justified because the balance of interests favored the press in

civil libel cases, unlike the grand jury proceedings considered in

Branzburg. See id. at 725. In In re Selcraig, 705 F.2d 789, 792

(5th Cir. 1983), we iterated the existence of the newsreporters’

privilege. We held in Selcraig that “the first amendment shields

a reporter from being required to disclose the identity of persons

who have imparted information to him in confidence,” but that this

privilege can be overcome in civil libel cases. Id. at 792.4

We disagree with WDSU-TV that Miller controls this case, as

the Miller privilege differs from the privilege sought here in two

critical respects. First, Miller was a civil matter, while we have

before us a criminal prosecution. The Branzburg Court emphasized

that the public’s interest in effective law enforcement outweighed

the press’s entitlement to a First Amendment privilege against the

4
Other courts have agreed with ours and recognized a qualified
reporter’s privilege in civil cases. See, e.g., Zerilli v. Smith,
656 F.2d 705, 711-12 (D.C. Cir. 1981); Silkwood v. Kerr-McGee
Corp., 563 F.2d 433, 437 (10th Cir. 1977).

16
disclosure of information. See Branzburg, 408 U.S. at 690.

Because the public has much less of an interest in the outcome of

civil litigation, in civil cases like Miller the interests of the

press may weigh far more heavily in favor of some sort of

privilege. Cf. Zerilli v. Smith, 656 F.2d 705, 711 (D.C. Cir.

1981) (“Although Branzburg may limit the scope of the reporter’s

First Amendment privilege in criminal proceedings, this circuit has

previously held that in civil cases, where the public interest in

effective criminal law enforcement is absent, that case is not

controlling.”).

The second important difference between this case and Miller

relates to confidentiality. As we have previously noted in the

context of testimonial privileges, the existence of a confidential

relationship that the law should foster is critical to the

establishment of a privilege. See ACLU v. Finch, 638 F.2d 1336,

1344 (5th Cir. Unit A Mar. 1981). Both Miller and Selcraig

recognized privileges meant to protect newsreporters from

unnecessarily revealing the identities of confidential sources.

Here, however, the confidentiality issue is absent. As we have

observed, WDSU-TV interviewed Smith “on the record,” so there was

no expectation between Smith and the television station that any of

the information he provided was to be kept in confidence. Indeed,

the lower court was faced with the polar opposite of

confidentiality: WDSU-TV refused to produce to Smith his own

statements given to the television station on the record. We have

never recognized a privilege for reporters not to reveal

17
nonconfidential information. In fact, this court has theorized

that confidentiality is a prerequisite for the newsreporters’

privilege. See Pressey v. Patterson, 898 F.2d 1018, 1022 n.4 (5th

Cir. 1990) (“Although the question is not directly before us, we

have strong doubts whether the trial judge was correct in enforcing

this privilege insofar as these tapes were concerned. As far as we

can discern from the record, Resier was a divulged source, not a

confidential source.”).

We conclude that newsreporters enjoy no qualified privilege

not to disclose nonconfidential information in criminal cases.

Therefore, we pay no heed to the district court’s determination,

both before and after its in camera inspection of the videotape,

that the requested evidence was cumulative of the defendant’s

statements already possessed by the government. As WDSU-TV enjoys

no privilege here, the district court need never have conducted an

in camera inspection. Likewise, the district court’s pre-

inspection conclusion that the videotape outtakes were cumulative

cannot be disentangled from its rulings regarding privilege.

Regardless, the district court’s orders reflect a balancing of

relevance against a found protected interest under the First

Amendment. There is no finding that meeting the calls of the

subpoena will be burdensome. Rather, the district court concluded

that the government lacked sufficient need. However, absent a

privilege, the government’s burden in requesting the subpoena was

to demonstrate that the evidence sought was relevant, that it was

admissible, and that it had been identified with adequate

18
specificity. See United States v. Arditti, 955 F.2d 331, 345 (5th

Cir.), cert. denied, 506 U.S. 998 (1992). Multiple contradictory

stories told by a defendant can demonstrate a consciousness of

guilt. See, e.g., United States v. Simone, 205 F.2d 480, 482 (2d

Cir. 1953) (permitting inference of guilt from defendants’

contradictory statements given in four interviews with government

agents). The subpoenaed evidence was relevant and not cumulative.

Accordingly, the government satisfied its Rule 17(c) burden and is

entitled to the videotapes.

V.

The order of the district court quashing the subpoena of WDSU-

TV and Taylor Henry is vacated and this case is remanded for

further proceedings.

VACATED AND REMANDED.

19