United States v. Wecht

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Precedential or Non-Precedential: Precedential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

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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

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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

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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.

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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

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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.”

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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

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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.

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