# Petition — Schaffer v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1981
- **Citation:** 449 U.S. 1113

## Text

pec 5 1980

No.8 0-915

MICHAEL RODAK, JR., CLERK

Supreme Court of the United States

October Term, 1980

UNITED STATES OF AMERICA

v.

CRIDEN, HOWARD L., JANNOTTI, HARRY P.,
JOHANSON, LOUIS C., SCHWARTZ, GEORGE X.

Fd

Jan Schaffer, a Witness in the Above-Referenced Proceeding,
Petitioner

On Petition for Writ of Certiorari to the United States
Court of Appeals for the Third Circuit

PETITION FOR WRIT OF CERTIORARI

e
SAMUEL E. KLEIN
Koun, SAVETT, MARION & Grar, P. C.
1214 IVB Building
1700 Market Street
Philadelphia, Pennsylvania 19103
(215) 665-9900

Attorneys for Petitioner

international Printing Co., 711 So. 50th St., Phila., Pa, 19143 — Tel. (215) 727-8711

QUESTIONS PRESENTED FOR REVIEW

1. May a journalist, asserting the federal common law
reporter's privilege during an evidentiary pre-trial hearing
on a criminal defendant’s motion to dismiss an indictment
for prosecutorial misconduct, properly decline to answer
questions which would disclose, through a process of elimi-
nation, the identity of the reporter’s sources, where:

(a) there has been no showing that defendant
has stated a legally sufficient case for an evidentiary
hearing;

(b) there has been no finding that the reporter's
testimony is crucial to the defendant’s case, and the
testimony sought from the reporter is for corrobora-
tion and impeachment purposes only; and

(c) there has been no exhaustion of alternative
sources for the information sought?

2. Does a reporter retain a protected interest in the
confidentiality of the occurrence and content of a conver-
sation with a source not identified in any published article,
after that source has testified to the conversation under
compulsory process, and the reporter’s testimony is sought
only to impeach the source?

3. Did the court below err in determining that civil
contempt proceedings never can become moot because of
the need for vindication of the court’s authority?

TABLE OF CONTENTS

Page
QUESTIONS PRESENTED FOR REVIEW .........0eeceeeeeeeeee i
REFERENCE TO OPINIONS BELOW ...........cccccccccsccces 1
STATEMENT OF GROUNDS FOR JURISDICTION ...........00000: 1
CONSTITUTIONAL PROVISIONS INVOLVED ...........0eeeee008 2
ee ee ee see eeke nee ap eens dbiuenees 3
a NEA Een) ol Ean Sena Cae ev a a oe 6
ee a eee ee pwns ane 12
APPENDIX:
Roem OE Ammens Cheha onc ccc ccc ecccccccesves Al
ee ra sss. ce ehece decanted eas A34
ay eae uee we ee neawe ee A37
Court of Appeals Fudment ...... 22. .ccccesscvssccss A38
Court of Appeals Order Denying Rehearing ........... A40

(ii)

TABLE OF AUTHORITIES

Cases:
Baker v. F&F Investment, 470 F. 2d 778 (2d Cir. 1972), cert.
aed AE0 U7, B. GOS CIO) oo kn ek cab dc gcianwiecewess
Branzburg v. Hayes, 408 U. S. 665 (1972) ............00e.
Bruno & Stillman, Inc. v. Globe Newspapers Co., — F. 2d
—, 6 Med. L. Rptr. 2057 (ist Cir. October 17, 1980) ...
Carey v. Hume, 492 F. 2d 631 (D. C. Cir.), cert. dismissed,
OF ec CREE oc brer ian borer nee easeeneaws ss
Cox Broadcasting Corp. v. Cohn, 420 U.S 469 (1975) .....
Farr v. Pitchess, 522 F. 2d 464 (9th Cir. 1975), cert. denied,
i he SE Se | rere rer Te Serre Pee
In Re Grand Jury Investigation (Lance), 610 F. 2d 202 (5th
Ep ek dan 4 Vea Ve ead ON Se RS ened a ake
Herbert v. Lando, 441 U. S. 153 (1979) .............0000-
Lewis v. United States, 517 F. 2d 236 (9th Cir. 1975) ......

Loadholtz v. Fields, 389 F. Supp. 1295 €M. D. Fla. 1975) ..
Miller v. Transamerican Press, Inc., 621 F. 2d 721 (5th Cir.
1980), opinion on rehearing, 628 F. 2d 932 (5th Cir.

SUED okie Ks wavs bine pANE ee CCR ha keh ak eee
New York Times Co. v. Jascalevich, 439 U. S. 1317 (1978),
kM ee eee eee Perret Ty err Te
New York Times Co. v. Sullivan, 376 U. S. 254 (1964) .....
In Re: Proceedings of the Grand Jury (Agnew), Civ. No.
Tater CEN Bi BOE: BE, BGO) acc davcsicidacavccses
Richmond Newspapers, Inc. v. Commonwealth of Virginia,
— U.S. —, 65 L. Ed. 2d 973 (1980) ...............-.
Riley v. City of Chester, 612 F. 2d 708 (3d Cir. 1979) .....
In Re Roche, — U. S. —, 65 L. Ed. 2d 1103 (1980) ........
Silkwood v. Kerr-McGee, 563 F. 2d 443 (10th Cir. 1977) ...
United States v. Broward, 594 F. 2d 345 (2d Cir.), cert.
meee, OO: Se, Bie Case cekccccdcccisnssccs
United States v. Brown, 602 F. 2d 1073 (2d Cir. 1979) .....
United States v. Caceres, 440 U. S. 741 (1979)

(iii)

Page

o>)

NIDQnN ©

TABLE OF AUTHORITIES (Continued)

Cases (Continued): Page
United States v. Cuthbertson, — F. 2d —, 6 Med. L. Rptr.
oe ee BO ee erepeerrr Tr ererrrrr rT rer 7

United States v. Mitchell, 397 F. Supp. 166 (D. D. C. 1974),
affd. sub nom., Erlichman v. Sirica, No. 74-1826 (D. C.

Ce SN SE BED Sco dp kok pbceceheWannepeve neste 7
United States v. Payner, — U. S. —, 65 L. Ed. 2d 468 (1980) 9
United States v. Serubo, 604 F. 2d 807 (3d Cir. 1979) ...... 8
United States v. Steelhammer, 561 F. 2d 539 (4th Cir. 1977) 6
Walker v. City of Birmingham, 388 U. S. 307 (1967) ....... 11
Statutes and Rules:
ey ee I, BU hn civ denis cccccccccccovcedes 3
ne ly Pea rah pwd we ehieen eh 0 tame’ 1
Rule 501, Federal Rules of Evidence ..................... 7
Constitution:

Constitution of the United States:
elev ca ee beranes 2,6, 11, 12
a Craw ka tenes akxe et eens 2

Other Authorities:

Comment: The Fallacy of Farber, Journal of Criminal Law
& Criminology, Vol. 70, No. 3 (1979) ................ 7

(iv)

REFERENCE TO OPINIONS BELOW

The Opinions of the courts below have not yet been
officially reported.

The Opinion and Order of the United States District
Court for the Eastern District of Pennsylvania, dated July
10, 1980, is reported at 6 Med. L. Rptr. 1554 (1980). A
copy of the Opinion is set forth in the Appendix.

The Opinion of the United States Court of Appeals
for the Third Circuit, dated October 10, 1980, is reported
at 6 Med. L. Rptr. 1993 (1980). A copy of the Opinion
is set forth in the Appendix.

STATEMENT OF GROUNDS FOR JURISDICTION

The Judgment of the Court of Appeals for the Third
Circuit was dated and entered on October 10, 1980. A
Petition for Rehearing was denied by Order dated No-
vember 7, 1980.

The statutory basis for this Court’s jurisdiction is 28
U. S. C. § 1254(1), in that this is a Petition for Writ of
Certiorari seeking review of the Judgment of the United
States Court of Appeals for the Third Circuit affirming the
Judgment of the United States District Court for the
Eastern District of Pennsylvania, filed July 10, 1980, ad-
judicating Petitioner to be in contempt of court.

(1)

Cae

2 Petition for Writ of Certiorari

CONSTITUTIONAL PROVISIONS INVOLVED

First AMENDMENT

“Congress shall make no law respecting an establish-
ment of religion, or prohibiting the free exercise thereof;
or abridging the freedom of speech or of the press; or of
the right of the people peaceably to assemble, and to
petition the government for a redress of grievances.”

FirTH AMENDMENT

“No person shall be held to answer for a capital or
other infamous crime unless on a presentment or indict-
ment of a grand jury, except in cases arising in the land
or naval forces, or in the militia, when in actual service,
in time of war or public danger; nor shall any person be
subject for the same offence to be twice put in jeopardy
of life or limb; nor shall be compelled in any criminal case
to be a witness against himself, nor be deprived of life,
liberty, or property, without due process of law; nor shall
private property be taken for public use without just com-
pensation.”

Petition for Writ of Certiorari 3

STATEMENT OF THE CASE

The underlying criminal action involved in this action
arose from an indictment against four defendants’ filed
on May 22, 1980, alleging violations of federal laws’ ex-
posed during the government’s undercover operation
known as “ABSCAM.”

Defendants filed joint motions to dismiss the indict-
ments for, among other reasons, alleged prosecutorial mis-
conduct. The “prosecutorial misconduct” was, inter alia,
the alleged release by representatives of the Department
of Justice of sensational and prejudicial information to the
news media. That conduct was asserted to be of such a
“demonstrable level of outrageousness” that due process
of law mandated dismissal of the charges. Notwithstand-
ing the government’s stipulation that the source of all
published information complained of was one or more
persons employed by the Department of Justice, the Fed-
eral Bureau of Investigation and/or the United States
Attorney's Office, the district court permitted defendants
to proceed with a pre-trial evidentiary hearing in an effort
to establish the precise identity and motivations of the
individual or individuals responsible for providing the
information to representatives of the news media.

The fourth witness called by defendants was the
Honorable Peter Vaira, United States Attorney for the
Eastern District of Pennsylvania. Mr. Vaira testified that
he had several telephone conversations with petitioner
Jan Schaffer, a news reporter for The Philadelphia

1. The parties to the proceeding before the Court of Appeals
for the Third Circuit were defendants Howard L. Criden, Harry
P. Jannotti, Louis C. Johanson and George X. Schwartz; the United
States of America; and Jan Schaffer, Third Party Witness, as ap-
pellant in the Court of Appeals and Petitioner herein.

2.18 U. S. C. §§1962(c) and (d) (the Anti-Racketeering
Act) and 18 U. S. C. §§ 1951 and 1952 (the Hobbs Act).

4 Petition for Writ of Certiorari

Inquirer, after news of the “ABSCAM” investigation was
broadcast by the NBC television network and published
in The New York Times on Saturday evening, February
2, 1980.°

Mr. Vaira denied discussing the Philadelphia portion
of the investigation or disclosing the names of the City
Councilmen involved to Ms. Schaffer, and stated that he
did not know the identity of the source of this information.

Immediately after Mr. Vaira’s testimony, Ms. Schaffer,
who was sitting in the courtroom as a working reporter
covering the proceedings, was called to the witness stand
by counsel for defendants. After taking the stand and
being sworn, Ms. Schaffer identified herself as a reporter
for The Philadelphia Inquirer. The following colloquy
occurred:

“Q. (By Mr. Sprague) And do you know Mr. Vaira,
the U. S. Attorney for this district?

A. I do.

Q. On February 2nd, 1980, did you have a conversa-
tion with Mr. Vaira concerning ABSCAM?”
(988a )

After conferring with counsel, the question was re-
peated:

“The Witness: Your Honor, I am going to respectfully
decline—

The Court: You are directed to answer the question
either yes or no.” (989a).

3. Neither the NBC broadcast nor The New York Times ar-
ticle, which contained detailed information concerning the
“ABSCAM” investigation, revealed the involvement of Messrs.
Jannotti, Johanson and Schwartz, City Cayncilmen of the City of
Philadelphia. This information first was disclosed in an article
written by Ms. Schaffer and published in The Philadelphia In-
quirer on February 3, 1980, the morning following the NBC broad-
cast.

Petition for Writ of Certiorari 5

After the witness declined, she was adjudicated in
civil contempt and sentenced to a term of imprisonment
for a period of up to six (6) months. She was remanded
to the custody of her counsel pending appeal.

After the contempt adjudication, several events oc-
curred. First, three additional representatives of the
United States Attorney’s Office testified that they had
conversations with Ms. Schaffer on the evening of Feb-
ruary 2, 1980.

Second, the district court issued the following Orders:

(1) Denying defendants’ motions for access to
the “Blumenthal Report,” the Department >f Justice’s
internal investigative report into the sources of and
reasons for leaks to the news media, and for enforce-
ment of subpoenas directed to other »epresentatives
of the media. (Order of July 31, 1980). The court
concluded that the information sought was not critical
to the defense, and in any event could be pursued at
some later date if other grounds for dismissal were
denied. Accordingly, the Court ended any further
pre-trial inquiry into the source of the press’ in-
formation.

(2) Denying defendants’ motion to dismiss for
prosecutorial misconduct, without prejudice to their
renewal after completion of the trial. (Order of
August 18, 1980).

(3) After a jury had convicted defendants, the
district court granted the renewed motion to dismiss
for entrapment and prosecutorial misconduct, on
grounds other than the disclosure of information to
the media, and ordered entry of a judgment of
acquittal. Thus, reporter Schaffer is presently the
only person facing incarceration in this case.

6 Petition for Writ of Certiorari

ARGUMENT

The opinion of the Court of Appeals raises important
and fundamental federal questions of nationwide im-
portance which should be settled by this Court. Resolu-
tion of the issues raised herein will have a direct impact
on the press’ ability to fulfill its historical role as a surro-
gate of the public, providing important information about
the operation of government and elected public officials.

Since the plurality opinion in Branzburg v. Hayes,
408 U. S. 665 (1972), this Court has not addressed the
scope of the journalist’s qualified privilege, rooted in the
First Amendment and traditions of federal common law,
not to reveal sources of information.‘

Since Branzburg, all but one of the Circuit Courts of
Appeals addressing the issue have adopted some form of
qualified privilege against disclosure of a journalist’s
sources,’ although differing standards for compelling dis-
closure have been adopted.

4. See the Chambers Opinions of Justices White and Marshall
in New York Times Co. v. Jascalevich, 439 U. S. 1317 (1978) and
439 U. S. 1331 (1978). See also Mr. Justice Brennan’s Opinion in
Chambers in In Re Roche, — U. S. —, 65 L. Ed. 2d 1103 (1980).

5. See Carey v. Hume, 492 F. 2d 631 (D. C. Cir.), cert. dis-
missed, 417 U. S. 938 (1974); Bruno & Stillman, Inc. v. Globe
Newspapers Co., — F. 2d —, 6 Med. L. Rptr. 2057 (1st Cir. Oc-
tober 17, 1980); Baker v. F&F Investment, 470 F. 2d 778 (2d
Cir. 1972), cert. denied, 411 U. S. 966 (1973); Riley v. City of
Chester, 612 F. 2d 708 (3d Cir. 1979); United States v. Steelham-
mer, 561 F. 2d 539 (4th Cir. 1977); Miller v. Transamerican Press,
Inc., 621 F. 2d 721 (5th Cir. 1980), opinion cn rehearing, 628
F. 2d 932 (5th Cir. 1980); Silkwood v. Kerr-McGee, 563 F. 2d 443
(10th Cir. 1977). But see Lewis v. United States, 517 F. 2d 236
(9th Cir. 1975) and Farr v. Pitchess, 522 F. 2d 464 (9th Cir. 1975),
cert. denied, 427 U. S. 912 (1976). The Courts of Appeals for the
Sixth, Seventh and Eighth Circuits have not addressed the issue.

Petition for Writ of Certiorari 7

Lack of uniformity, compounded by the inapplicabil-
ity of state shield laws in federal actions not based upon
diversity of citizenship,® has resulted in a distressing in-
crease in the number of reporters subjected to subpoenas
and contempt citations.’ This alarming trend has been
magnified in recent years by numerous defense motions
to dismiss charges based upon allegations of governmental
misconduct in leaking news to the press, particularly in
political corruption cases,* where the public interest in
being informed is greatest.

This Court repeatedly has recognized the valuable
societal role played by the press in disseminating important
public information to the public.’ The ability of the press
to perform this informational function can be ensured only
if this Court adopts, and applies to the facts of this case,
a qualified testimonial privilege which precludes inquiry
into a journalist’s source of news, as well as the unpub-
lished information obtained from sources.’® Petitioner will
urge this Court to adopt a test which would sanction forced

6. See Rule 501, Federal Rules of Evidence.

7. See, generally, ComMeENT: THE FALLACY oF Farser, Journal
of Criminal Law and Criminology, Vol. 70, No. 3 (1979).

8. See, e.g., In Re: Grand Jury Investigation (Lance), 610
F, 2d 202 (5th Cir. 1980); United States v. Mitchell, 397 F. Supp.
166, 179 (D. D. C. 1974), affd. sub nom., Erlichman v. Sirica, No.
74-1826 (D. C. Cir. August 22, 1974); In Re: Proceedings of the
Grand Jury (Agnew), Civ. No. 73-965 (D. Md. Sept. 28, 1973).

9. See, e.g., New York Times Co. v. Sullivan, 376 U. S. 254,
270 (1964); Cox Broadcasting Corp. v. Cohn, 420 U. S. 469
(1975); Richmond Newspapers, Inc. v. Commonwealth of Vir-
ginia, — U. S. —, 65 L. Ed. 2d 973 (1980).

10. See Herbert v. Lando, 441 U. S. 153 (1979); United States
v. Cuthbertson, — F. 2d —, 6 Med. L. Rptr. 1545 (3d Cir. July
23, 1980); Loadholtz v. Fields, 389 F. Supp. 1299, 1303 (M. D.
Fla. 1975).

8 Petition for Writ of Certiorari

disclosure of sources or unpublished information only
when strictly and inescapably necessary to accommodate
another constitutionally mandated interest. Such a privi-
lege would permit disclosure only when the party seeking
the information has made a strong showing, articulated
in specific findings of fact, that: (a) a demonstrated, spe-
cific need for the evidence exists; (b) the information
sought provides a source of crucial information going to
the heart of the claim; (c) there is no other source for the
information; and (d) other means of obtaining the informa-
tion have been exhausted. See Riley v. City of Chester,
supra, 612 F. 2d at 716-17. The court below sanctioned
a procedure in which a journalist may be compelled to
admit or deny speaking with a particular individual once
that individual has testified and been questioned as to his
conversations, if any, with a reporter. Approval of this
practice eviscerates any semblance of a privilege, for the
following reasons:

A. In ordering disclosure, the courts below invaded
the journalist’s constitutionally protected newsgathering
function without first determining that the information
sought was relevant to the relief sought by defendants.
The reporter was compelled to testify in support of a mo-
tion that has been uniformly denied by every federal court
to consider it. See, generally, In Re Grand Jury Investi-
gauon (Lance), supra.

It is well established that dismissal of an indictment
for prosecutorial misconduct is a sanction to be applied
only in extraordinary cases—and those circumstances
never have included pre-indictment publicity. See, e.g.,
United States v. Serubo, 604 F. 2d 807, 818 (3d Cir.
1979) (refusing to dismiss indictment but remanding for
determination of prejudice); United States v. Brown, 602
F. 2d 1073 (2d Cir. 1979); United States v. Broward, 594

Petition for Writ of Certiorari 9

F. 2d 345 (2 Cir.), cert. denied, 99 S. Ct. 2882 (1979)
(reversing dismissal of indictment despite insertion of
false materials in arrest warrant and lying in court).

Whatever claims the defendants had that the Court
should exercise its supervisory power by dismissing the
indictment—with or without a showing of prejudice to
the grand jury—were substantially undercut by this
Court’s decision in United States v. Payner, — U. S. —,
65 L. Ed. 2d 468 (1980). There the Court rejected a
claim that federal courts had the power to exclude evi-
dence in the exercise of a supervisory power to discipline
government misconduct. In a concurring opinion, the
Chief Justice noted: “Orderly government under our sys-
tem of separate powers calls for internal self-restraint and
discipline in each Branch; this court has no general su-
pervisory authority over operations of the Executive
Branch, as it has with respect to federal courts.” Id. at
478. See also United States v. Caceres, 440 U. S. 741
(1979).

Indeed, had the district court proceeded cautiously,
the reporter’s testimony and resultant constitutional con-
frontation would have been avoided. As noted in the
Statement of Facts, the district court has ordered that
judgments of acquittal be entered. At a minimum, the
district court should have delayed ordering disclosure of
source material until conclusion of the jury trial. If there
was a judgment of conviction and other grounds asserted
in support of a judgment of acquittal had been deemed
inadequate, the court then could have conducted post-
trial hearings on the governmental misccaduct issue with
the benefit of a full trial record, including an extensive
voir dire examination.

B. A journalist’s compelled participation in a process
of elimination designed to ferrett out both the identity of

~

=

10 Petition for Writ of Certiorari

and disclosures made by sources of information deprives
the privilege of any meaning. Sanctioning this process
ensures that the journalist no Tonger can provide any
promise of confidentiality. Moreover, exposure of the
detail and fact of a reporter’s conversations invades and
thus destroys the sanctity of the fact-gathering process
and creates the public impression that the journalist has
revealed his confidences. To destroy this perception of
absolute trustworthiness is to destroy the free flow of
information to the public.

C. The Court of Appeals found that a journalist's tes-
timony, relevant only for corroboration or impeachment
of another witness, satisfied the requirement that the tes-
timony sought be “crucial.” This holding, unless re-
viewed, will destroy any semblance of privilege, for
“credibility” testimony always is at issue in oral testimony.

D. The Court of Appeals compelled a journalist to
participate in the process of elimination leading to dis-
closure of a source even though only four witnesses pre-
viously had been called in an effort to ascertain the source.
In addition, the results of an extensive Justice Department
investigation, which included affidavits and polygraph ex-
aminations, had not been made available to defendants.
In short, the Court of Appeals required forced disclosure
from a journalist although virtually no effort had been
made to use less intrusive means of obtaining the infor-
mation.

E. The Court of Appeals redefined civil contempt to
include vindication of the inherent powers of the court.
This result portends staggering consequences. A non-
party witness generally may obtain appellate review of
an order to answer a question only by violating that order
and being adjudicated in contempt. Holding that the

Petition for Writ of Certiorari 11

court’s authority is flouted by a respectful refusal to an-
swer a question considered in good faith by the witness
to be repugnant to the First Amendment places the wit-
ness in an impossible “Catch-22.” For it is vindication of
the court’s authority—regardless of the correctness of its
order—that is the justification for not examining the merits
of the underlying order in a criminal contempt case. See
Walker v. City of Birmingham, 338 U. S. 307, 321 (1967).
Thus, the opinion of the court below is premised upon
logic which would justify, if not compel, foreclosing re-
view of the validity of the underlying order to testify in
the context of an adjudication of civil contempt. Such a
result would deny witnesses any appellate review of the
validity of the order to answer, thereby denying them due
process of law. The “Catch-22” is particularly dangerous
and unconstitutional where, as here, the Court below ruled
against assertion of a privilege grounded in the First
Amendment.

12 Petition for Writ of Certiorari

CONCLUSION

The ever-increasing number of incidents in which
journalists are cited for contempt as a result of refusing to
disclose their confidences mandates review by this Court.
At stake are fundamental First Amendment issues which
go to the heart of the newsgathering process.

WHEREFORE, Petitioner respectfully urges this Court
to grant her Petition for Certiorari.

Respectfully submitted,

SAMUEL E.. KLEIN
Koun, SAVETT, MARION &
GrarF, P. C.
1214 IVB Building
1700 Market Street
Philadelphia, Pennsylvania 19103
(215) 665-9900
Attorneys for Petitioner

Appendix.

UNITED STATES COURT OF APPEALS
For THE TuirRD CIRCUIT

No. 80-2001

UNITED STATES OF AMERICA
v.

CRIDEN, HOWARD L., JANNOTTI, HARRY P.
JOHANSON, LOUIS C., SCHWARTZ, GEORGE X.
Jan Schaffer, a witness in the
above-referenced proceeding,

Appellant,

APPEAL FROM THE UNITED STATES District CourRT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D. C. Crim. No. 80-00166-1-2-3-4 )
Argued August 6, 1980
Before: ALpisERT and Hunter, Circuit Judges, and
RaMso, District Judge.

(Filed October 10, 1980)

Harold Kohn, Esq. (Argued )
Samuel E. Klein, Esq.
Kohn, Savett, Marion & Graf, P. C.
1214 IVB Building
1700 Market Street
Philadelphia, Pennsylvania 19103
Counsel for Appellant, Jan Schaffer
* Honorable Sylvia H. Rambo, of the United States District

Court for the Middle District of Pennsylvania, sitting by desig-
nation.

(Al)

A2

Court of Appeals Opinion

John C. Keeney
Deputy Assistant Attorney General
Paul E. Coffey
William C. Bryson
Attorneys
Criminal Division
Department of Justice
Washington, D. C. 20530
Counsel for the United States

Richard Ben Veniste, Esq.

Neil Levy, Esq.

Melrod, Redman & Garlan

1801 K Street, Suite 1100-K

Washington, D. C. 20036

Paul R. Rosen, Esq. (Argued )

Edward M. Dunham, Jr., Esq.

Spector Cohen Hunt & Rosen, P. C.

1700 Market Street, 29th Floor

Philadelphia, Pennsylvania 19103
Counsel for Appellee, Howard L. Criden

Richard A. Sprague, Esq.

Pamela W. Higgins, Esq. (Argued )

Suite 400, Wellington Building

135 South 19th Street

Philadelphia, Pennsylvania 19103
Counsel for Appellee, Schwartz

J. Clayton Undercofler, III, Esq.

2600 The Fidelity Building

123 South Broad Street

Philadelphia, Pennsylvania 19109
Counsel for Appellee, Jannotti

Court of Appeals Opinion A3

John Rogers Carroll, Esq.

John J. Duffy, Esq.

326 Three Penn Center Plaza

Philadelphia, Pennsylvania 19102
Counsel for Appellee, Johanson

Seymour I. Toll, Esq.
Michele Langer, Esq.
Of Counsel:
Toll, Ebby & Gough
Suite 2040, 1845 Walnut Street
Philadelphia, Pennsylvania 19103
Counsel for Amicus Curiae, Bulletin Company

Debevoise, Plimpton, Lyons & Gates
299 Park Avenue
New York, New York 10017
Of Counsel:
Robert B. von Mehren, Esq.
James C. Goodale, Esq.
John G. Koeltl, Esq.
Edwin P. Rutan, II, Esq.
Gary W. Kubek, Esq.
Counsel for Amicus Curiae,
The New York Times Company

Bernard G. Segal, Esq.

James D. Crawford, Esq.

Joseph C. Crawford, Esq.
Of Counsel:
Schnader, Harrison, Segal & Lewis
1719 Packard Building
Philadelphia, Pennsylvania 19102

Counsel for Amicus Curiae,
National Broadcasting Company, Inc.

A4 Court of Appeals Opinion

Jack C. Landau, Esq.
Sharon P. Mahoney, Esq.
Clemens P. Work, Esq.
1125 15th Street, N. W.
Washington, D. C. 20005
Counsel for Amicus Curiae, Reporters
Committee for Freedom of the Press

OPINION OF THE COURT
ALDISERT, Circuit Judge.

In United States v. Cuthbertson, — F. 2d —, No.
80-1325 (3d Cir. July 23, 1980), we held that CBS had a
qualified privilege, partially overridden in that case, not
to disclose unpublished information in its possession in
criminal cases. Earlier, in Riley v. City of Chester, 612
F. 2d 708 (3d Cir. 1979), a civil case, we emphasized
that special circumstances exist in a criminal case that
must be considered in evaluating a witness’ claim of
journalist's privilege. Specifically, the trial court must
consider whether the reporter is alleged to possess evi-
dence relevant to the criminal proceeding and the effect
of disclosure on two important constitutionally based con-
cerns: the journalists’ privilege not to disclose confidential
sources and the constitutional right of a criminal defendant
to every reasonable opportunity to develop and uncover
exculpatory information. 612 F. 2d at 716.

This appeal requires us to decide if a journalist, sum-
moned as a defense witness in a criminal proceeding, may
refuse to affirm or deny that she had a conversation with
a particular individual who has already publicly testified
that the conversation occurred and that certain matters
arguably relevant to the judicial inquiry were discussed.
Unlike Cuthbertson, this case implicates published infor-
mation from a self-avowed source; unlike Riley, it is a

\

Court of Appeals Opinion A5

criminal proceeding. We emphasize at the outset that the
ultimate judicial inquiry with which this appeal is con-
cerned seeks not the source of the reporter’s information,
but the motivation and the credibility of a single self-
avowed source.

I.

The case comes to us on an appeal by Jan Schaffer,
a reporter for the Philadelphia Inquirer, from an order of
the district court holding her in civil contempt for refusing
to answer a question during a hearing on defendants’
motions to dismiss their indictments. On May 22, 1980,
defendants Howard L. Criden, an attorney practicing in
Philadelphia, and Philadelphia City Councilmen Harry P.
Jannotti, Louis C. )ohanson, and George X. Schwartz were
indicted by a federal grand jury in the Eastern District of
Pennsylvania and charged with violations of federal laws
exposed during a government undercover operation known
as ABSCAM." The indictment charges defendants with
violating the Anti-Racketeering Act, 18 U. S. C. § 1962,
and the Hobbs Act, 18 U. S. C. § 1951, by receiving bribes
from government undercover agents posing as Arab sheiks.

Among the grounds presented for dismissing the in-
dictment are allegations of prosecutorial misconduct and
massive prejudicial pre-indictment and pretrial publicity.
The charge of prosecutorial misconduct consists of an
allegation that representatives of the Department of Justice
and the United States Attorney’s Office of the Eastern
District of Pennsylvania released sensational and preju-
dicial information to the news media with intent to create

1, “ABSCAM” is a code name for an operation by the Federal
Bureau of Investigation called Abdul Enterprises, Inc., in which
Federal undercover agents posing as representatives of Middle
Eastern businessmen sought help from public officials for various
enterprises.

A6 Court of Appeals Opinion

an atmosphere inimical to the rights of the defendants.
The parties concede that the ABSCAM investigation has
received widespread publicity and the government has
stipulated that the source of the disclosures to the press
was one or more persons employed by the Departmeriteaf
Justice, the Federal Bureau of Investigation, and the
United States Attorney’s Office.

FBI officials have described ABSCAM as an operation
of major proportions, apparently beginning in 1978 or
earlier but not focusing on public officials until the fall of
1979. Thomas P. Puccio, chief of the Justice Department's
Organized Crime Strike Force in Brooklyn, New York,
was the chief prosecutor and head of the operation from
its inception. Around December 12, 1979, Mr. Puccio
transmitted a detailed memorandum to Phillip Heyman,
Assistant Attorney General in charge of the Criminal
Division of the Department of Justice, summarizing de-
velopments and analyzing applicable federal statutes.
This memorandum was disseminated to top officials of the
Department of Justice in Washington as well as to Robert
Del Tufo, United States Attorney for the District of New
Jersey, and to William Webster, Director of the FBI.
The memorandum does not mention defendants.

Early in 1980, the U. S. Attorney's Office for the
Eastern District of Pennsylvania became actively involved
in the operation. On January 29, 1980, Peter F. Vaira,
U. S. Attorney for the Eastern District of Pennsylvania,
met with Brian Ross of the National Broadcasting Com-
pany. Vaira testified during the dismissal hearing that
Ross was aware of certain details of the operation but
that, as of the date of the meeting, he was unaware that
the defendants had been implicated.

On Saturday, February 2, government agents invited
Criden to New York and revealed the true nature of the
ABSCAM operation to him. As part of a plan to continue

Court of Appeals Opinion A7

the operation, Vaira and others tried to convince Criden
to cooperate with them in continuing undercover opera-
tions. On that date, Ross released the ABSCAM story
during an evening news broadcast on Channel 4 in New
York. The news story contained films of government
agents visiting the homes of certain public officials.
Shortly thereafter, the New York Times, in a story written
by Leslie Maitland, carried a detailed account of the
operation. Neither the NBC broadcast nor the Times
story contained information concerning the defendants
here. Puccio and Vaira testified that the New York Times
story contained much of the information found in the
earlier memorandum from Puccio to Heyman and that
Maitland probably had gained access to the memorandum.
Government officials acknowledged in testimony before
the district court that leaks to the press came from within
the government. Both Puccio and Vaira denied that they
were the original source of the leaks.

II.

The testimony relevant to this appeal is Vaira’s state-
ment at the indictment dismissal hearing that he learned
on February 2, 1980, that the ABSCAM operation was
about to be exposed in the national media. As a favor to
Schaffer, and while still negotiating with Criden, he tele-
phoned Schaffer from Strike Force headquarters in New
York, told her that the story was breaking in the national
news, and advised here to “catch up” on the story. App.
at 714A, 715A, 717A. Vaira was asked on direct examina-
tion if he was the source of information that appeared in
Schaffer’s article published by the Inquirer on Monday,
February 4. He denied that he was. App. at 716A.
Vaira then said that he had at least one other telephone
conversation with Schaffer:

A8 Court of Appeals Opinion

I recall that she returned a phone call and said, “I
understand that there are Philadelphia city council-
men involved” and she had . . . two correct names
and one incorrect. I don’t recall who it was.

At that point it looked to me she had some bad
information.

.. I just said, “You are incorrect.” At that
time I realized she had picked up the story from
Philadelphia which I thought was not a part of this
bigger story, not a part of the New York Times
work, ...

[S]he called me about two times or three times
up in New York[.] [T]he third time she called me
she had . . . the correct names.

Q Did you then say she was correct?

A Yes _ . I said, “That is all I’m going to say.”
In the meas .e she had got some incorrect and it
looked like she was going to include some incorrect
names,

App. at 718A. During questioning by counsel for Criden,
Vaira revealed that he first telephoned Schaffer “late in
the afternoon, February 2, at sometime after an NBC-TV
newscast aired at 6 or 6:30 p.m.” He said that during his
third conversation with Schaffer, sometime between 7:30
and 8:30 p.m. Saturday evening, he realized that she
“had the full story” but that he did not confirm it. App.
at 739A.

Schaffer was subpoenaed as a defense witness. Prior
to her testimony, the court emphasized that it would not
require her to reveal the sources of her information.
App. at 983A. Schaffer’s attorney objected to the court's
order requiring Schaffer to testify, arguing that the gov-
ernment’s concession that its employees were responsible
for the releases obviated Schaffer’s testimony. The court
rejected this argument, however, reasoning that the need

Court of Appeals Opinion AQ

to preserve confidentiality of sources evaporates when the
source himself has admitted his disclosure. In addition,
the court stated that issues of Vaira’s motivation and
credibility remained unresolved. App. at 983A-84A.

When Schaffer’s attorney continued to press the mo-
tion to quash the subpoena, the court denied the motion
in a ruling that is critical to this appeal. It indicated that
questions regarding the balance between the journalist's
privilege and the defendant's right to a fair trial must “be
made on the question by question basis.” Following a
sidebar conference counsel for defendant Schwartz con-
tinued the direct examination. Schaffer disclosed her oc-
cupation and her acquaintance with Vaira before the
colloquy at issue occurred:

Q On February 2, 1980, did you have a conversation
with Mr. Vaira concerning ABSCAM?P

MR. KOHN: That's objected to your Honor.

THE COURT: Objection overruled.

MR. SPRAGUE: Would you answer that question.
MISS SCHAFFER: May I confer with counsel?

Your Honor, I am going to respectfully decline—

THE COURT: You are directed to answer the ques-
tion either yes or no.

[T]he court has ordered you now to answer the ques-
tion either yes or no. You're not being asked any-
thing more [than] whether you had a conversation
with him. Now, do you answer the question or do
you refuse to answer the question?

THE WITNESS: I continue to decline to answer the
question.

Al0 Court of Appeals Opinion

THE COURT: All right, you're held in contempt
and it’s civil contempt. You may purge yourself
of contempt by answering the question and the
contempt is that you be remanded to the cus-
tody of the marshal until you answer the ques-
tion. If you haven’t answered it within six
months, you'll be turned loose.

App. at 988A-990A. The trial court remanded Schaffer
into the custody of her attorney pending disposition of
this appeal.

In her brief, Schaffer has described her refusal to
answer the one question as a “constitutional crisis.”
Brief for Appellant at 16. Relying on Riley, she argues
that she has a privilege to refuse to answer the question.
She predicates her defense on an assertion that an an-
swer would have revealed, directly or indirectly, a source
of news; that the defendants have failed to show that the
information sought is crucial to their defense; that they
have failed to show that the information sought is un-
available from other sources; and that the compelled dis-
closure of sources was premature.

III.

Appellant's first argument is that the contempt pro-
ceeding is moot. She relies on a July 31, 1980, statement
by the district court denying the defendants’ motion to
enforce subpoenas directed to other representatives of
the news media:

There is, of necessity, a limit to pretrial explora-
tions of this kind. I believe that limit has now been
reached in this case, and that no useful purpose
would be served in further pretrial pursuit of the
matter. The existing record provides an adequate
basis for the arguments the defendants may wish to
make at this stage.

Court of Appeals Opinion All

App. at 1434a. Appellant notes that she has been held in
civil contempt until she answers the question asked her
by defense counsel. The court has called a halt to pretrial
activity, and the pretrial record is now closed. Because
the record is now closed, she argues, her testimony is no
longer needed. Therefore, she concludes, the reason for
the civil contempt has dissipated, and the order of con-
tempt is now moot.

On its face, this argument contains much internal
logic. Nevertheless, a necessary factual predicate of the
argument can be challenged. We are not persuaded that
the district court has closed the record with respect to
Schaffer’s testimony. When this same argument was
presented to the district court on August 4, 1980—two
days prior to oral argument in this appeal—in the form
of a motion to vacate the contempt order, the court re-
sponded by denying the motion and stating in the mem-
orandum that accompanied the order:

[I]n my view, what is at stake here is the need
to vindicate the Court’s authority to determine the
manner in which its hearings shall be conducted,
and the manner in which issues shall be presented
to the Court for resolution. By her steadfast refusal
to answer even the most innocuous question despite
the Court’s direct order, the witness simply precluded
the Court from pursuing the orderly, question-by-
question analysis essential to the appropriate presen-
tation and resolution of the issues involved. Recog-
nition of the newsgatherers’ privilege surely does not
carry with it the notion that reporters are immune
from giving non-privileged evidence, or that, unlike
all other witnesses, reporters need answer only those
questions which they deem to be relevant and
material.

Al2 Court of Appeals Opinion

App. at 1447a. The court therefore denied the motion to
vacate the contempt order. Subsequently, in its mem-
orandum opinion dated August 18, 1980, denying without
prejudice defendants’ motions to dismiss because of
prosecutorial misconduct, the district court emphasized
that further factual development during trial would be
necessary before it could decide this issue. United States
v. Criden, Cr. No. 80-166, typescript mem. op. at 12
(E. D. Pa. Atyw18, 1980).

We detect two discrete reasons why the issue is not
moot. First, although the court’s language strongly indi-
cates that it will receive no further testimony on defend-
ants’ motion to dismiss the indictment, we are not con-
vinced that it has closed the record on Schaffer’s testimony.
The very nature of the penalty imposed—incarceration for
a maximum of six months, unless or until an answer is
forthcoming—requires that the record be open for
Schaffer’s testimony. If the penalty imposed is bottomed
on the notion that “[she] carr[ies] the keys of [her] prison
in [her] own pocket[],” In re Nevitt, 117 F. 448, 461 (8th
Cir. 1902), the record necessarily cannot be closed if she
decides to use that key. In addition, Schaffer’s testimony
has not become irrelevant to defendants’ attempt to have
the indictment dismissed because their motions, though
recently denied, may be resubmitted at the close of the
trial.

Second, the district court has indicated without am-
biguity that it does not view these contempt proceedings
as moot. In addition to implying that the record is open
to receive her testimony, it has explicitly referred to the
public interest in vindicating the court’s authority to hold
orderly hearings. Appellant counters this justification by
arguing that vindication of the court’s authority is not a
purpose of civil contempt. Oral Argument Transcript at
8-9. Judicial authority, she argues, is vindicated through

Court of Appeals Opinion A13

imposition of sanctions for criminal contempt, whereas
civil contempt is reserved solely to compel action or testi-
mony for the benefit of a litigant.

We reject appellant’s argument that civil contempt
does not support the court’s authority. Our starting point
is the teaching of Bessette v. W. B. Conkey Co., 194 U. S.
324, 328-29 (1904):

A criminal contempt involves no element of
personal injury. It is directed against the power and
dignity of the court, and private parties have little if
any interest in the proceedings for its punishment.
But if the contempt consists in the refusal of a party
or a person to do an act which the court has ordered
him to do for the benefit or the advantage of a party
to a suit or action pending before it, and he is com-
mitted until he complies with the order, the com-
mitment is in the nature of an execution to enforce
the judgment of the court, and the party in whose
favor that judgment was rendered is the real party
in interest in the proceedings.” [Citation omitted].

[I]f in the progress of a suit a party is ordered by
the court to abstain from some action which is in-
jurious to the rights of the adverse party, and he dis-
obeys that order, he may also be guilty of contempt,
but the personal injury to the party in whose favor
the court has made the order gives a remedial char-
acter to the contempt proceeding. The punishment
is to secure to the adverse party the right which the
court has awarded to him... .

It may not be always easy to classify a particular
act as belonging to either one of these two classes. It
may partake of the characteristics of both. A signif-
icant and generally determinative feature is that the

Al4 Court of Appeals Opinion

act is by one party to a suit in disobedience of a
special order made in behalf of the other. Yet some-
times the disobedience may be of such a character
and in such a manner as to indicate a contempt of
the court rather than a disregard of the rights of the
adverse party.

The Supreme Court has repeatedly recognized the insti-
tutional purposes served by civil contempt orders. In
Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 443
(1911), the Court stated: “[I]f the case is civil and the
punishment is purely remedial, there is also a vindication
of the court’s authority.” But vindication of the court's
authority need not be a collateral benefit of a civil con-
tempt order. Sanctions for civil contempt may be used
either to compensate the complainant for losses sustained,
or to coerce the defendant into compliance with the
court’s order, thereby vindicating the court’s institutional
authority. See United States v. United Mine Workers, 330
U. S. 258, 303-04 (1947). Hutto v. Finney, 437 U. S. 678
(1978), serves as the most recent instruction by the
Supreme Court: “In this case, the award of attorney's fees
for bad faith served the same purpose as a remedial fine
imposed for civil contempt. It vindicated the District
Court’s authority over a recalcitrant litigant.” Id. at 691
(emphasis added ).?

The appellant relies primarily on this court’s decision
in In re Grand Jury Investigation (Braun), 600 F. 2d 420
(3d Cir. 1979), to support her position that civil contempt

2. Moreover, in describing disobedience of a court-sanctioned
subpoena, the Supreme Court has said that whether the resulting
contempt is labelled civil, quasi-criminal, or criminal, “its purpose is
by no means spent upon purely private concerns. It stands in aid
of the authority of the judicial system, so that its orders and judg-
ments are not rendered nugatory....” Juidice v. Vail, 430 U. S.
327, 336 n. 12 (1977).

Court of Appeals Opinion A15

is solely coercive. In that decision, however, we relied on
Gompers for the proposition that although “civil contempt
is primarily coercive in nature,” no bright line separates
civil and criminal contempt. Id. at 423 & n. 6 (emphasis
added). We do not perceive the role of the district court
in this important case as a hired umpire dragged in from
the street to preside cver a dispute between private liti-
gants. Nor is the court a private law faculty, the recipient
of an Aktenversendung, a request for a decision based on
found facts.’

Important constitutional precepts collide in this case,
and the court must be ever vigilant, virtually on a question-
by-question basis, to ensure that its awesome authority is
constantly active to protect the rights of both news-
gatherers and criminal defendants. Such a case, probably
more than any other type of litigation except capital cases
and cases raising national security concerns, energizes the
court as a vitally important establishment of government.
Courts were designed by our society to safeguard the
rights of litigants, but may do so only by safeguarding
their own institutional integrity. Especially in this type
of case, in which complex proceedings affecting several
highly prized rights must be conducted in an extremely
formal and orderly fashion, the court must retain authority
to impose sanctions when its rules are deliberately flouted.
Otherwise, the court’s effectiveness would be blunted and
public respect and esteem for the judicial institution seri-
ously dissipated. We conclude that in this case, the au-
thority of the court is as vital as the interests of the private
litigants. We therefore agree with the Second Circuit that
“the court’s effort[] at vindicating its authority [is] an in-
terest which may be implicated in either civil or criminal
proceedings.” United States v. Wendy, 575 F. 2d 1025,

3. See Aldisert, The Nature of the Judicial Process: Revisited.
49 Univ. of Cincinnati L. Rev. 1, 45 (1980).

Al6 Court of Appeals Opinion

1029 n. 13 (2nd cir. 1978); see also United States v. Work
Wear Corp., 602 F. 2d 110, 115 (6th Cir. 1979). Even
had we determined that the indictment dismissal record
is closed, the important legal question presented by this
appeal would not be moot because of the institutional im-
portance of this order. Accordingly, for two separate
reasons, that the record is still open to receive appellant's
testimony, and that her refusal to testify and the resulting
sanction implicate the court’s authority, we conclude that
the matter is not moot and proceed to examine the merits.

IV.

If a case may be decided on either non-constitutional
or constitutional grounds, a federal court will inquire first
into the non-constitutional question. This practice reflects
the deeply rooted doctrine “that we ought not to pass on
questions of constitutionality . . . unless such adjudication
is unavoidable.” Harris v. McRae, — U.S. —, 48 U. S.
L. W. 4941, 4944 (June 30, 1980) (quoting Spector Motor
Service, Inc. v. McLaughlin, 323 U. S. 101, 105 (1944) ).
We must therefore address the argument advanced by the
Department of Justice that the question the appellant re-
fused to answer was wholly immaterial to the proceedings
below because it could not have produced the kind of evi-
dence of prejudice either in the grand jury or the petit
jury that would justify dismissal of the indictment. Rely-
ing on United States v. Duncan, 598 F. 2d 839, 865 (4th
Cir.), cert. denied, 100 S. Ct. 148 (1979); United States v.
Stanford, 589 F. 2d 285, 298-99 (7th Cir. 1978), cert.
denied 440 U. S. 983 (1979); and Martin v. Beto, 397 F.
2d 741, 751 (5th Cir. 1968) (Thornberry, J., concurring),
cert. denied, 394 U. S. 906 (1969), the Department con-
tends that even if the defendants are correct in their alle-
gation that the pretrial publicity was the product of prose-

Court of Appeals Opinion Al7

cutorial misconduct, dismissal of the indictment would not
be a proper remedy in the absence of proof of actual
prejudice. This argument misses the mark.

More is involved in this case than the factual question
whether the pretrial publictiy resulted from government
misconduct. Trial counsel conceded before the district
court that government representatives were sources of the
disclosures. See United States v. Criden, Cr. No. 80-166,
typescript op. at 2 (E. D. Pa. July 10, 1980) (memo-
randum accompanying order of contempt). As the trial
court recognized, both the credibility of government wit-
nesses in their testimony during the hearing and the moti-
vation of government employees in releasing the informa-
tion are central to defendants’ motions to dismiss the
indictment. App. at 984A.

Testimony at the hearing indicated that the United
States Attorney for the District of New Jersey forwarded
a memorandum of law concerning the ABSCAM operation
to Vaira. Defendants claim the memorandum seriously
questions the acceptability of the investigation, and prose-
cutions brought pursuant to it, under the due process
clause. At this pretrial stage, they argue that no indict-
ments would have been issued against them had the
normal course of governmental investigation gone forward,
but that the indictments against them were in fact forced
because of the pre-indictment publicity deliberately or-
chestrated by government representatives. Although the
court noted that the “principal thrust” of the argument was
akin to entrapment, it summarized this portion of the argu-
ment in its order of August 18 denying without prejudice
the motions to dismiss for prosecutorial misconduct: “The
defendants assert that persons for whose conduct the prose-
cution is accountable intentionally caused the premature
and excessive media coverage of the Abscam investigation,
in order to stampede the grand jury into returning the

A18 Court of Appeals Opinion

Indictment, and in order to preclude responsible officials
in the Justice Department from declining to prosecute.”
United States v. Criden, Cr. No. 80-166, typescript mem.
op. at 8 (E. D. Pa. Aug. 18, 1980). In denying the
motions, the court recognized that defendants would prob-
ably raise the issues again after trial. Id. at 12.

The argument presented by the Department of Jus-
tice in favor of reversing the contempt order is facially
appealing because indictments are rarely dismissed for
prosecutorial misconduct. See In re Grand Jury Investi-
gation (Lance), 610 F. 2d 202, 219 & n. 14 (5th Cir.
1980); United States v. Stanford, 589 F. 2d 285, 298-99
(7th Cir. 1978), cert. denied, 440 U. S. 983 (1979).
Nevertheless, to accept the argument would require us to
formulate a general legal principle on a record inade-
quate even to state a specific rule.* Indeed, the govern-
ment would have us announce as a general proposition
that there is no conceivable set of facts under which this
court, either by constitutional mandate, see United States
v. Twigg, 588 F. 2d 373, 378-81 (3d Cir. 1978), or by
use of its supervisory power over law enforcement in
this circuit, see Marshall v. United States, 360 U. S. 310,
313 (1959); see also Hampton v. United States, 425 U. S.
484, 494-95 (1976) (Powell, J., concurring in the judg-

4, Dean Pound defined “rules” of law as “precepts attaching
a definite detailed legal consequence to a definite, detailed state of
facts. ... [T]hey are definite threats of definite, detailed official
action in case of a definite, detailed state of facts.” Pound, Hier-
archy of Sources and Forms in Different Systems of Law, 7 Tulane
L. Rev. 475, 482 (1933). In contrast, he defined “principles” as
“authoritative starting points for legal reason, employed continu-
ally and legitimately where cases are not covered or are not fully
or obviously covered by rules in the narrower sense.” Id. at 483.
In the common law tradition, a single case rarely sets forth a prin-
ciple; a principle emerges from a line of decisions as a broad state-
ment of reasons for those decisions. Aldisert, supra note 3, at 28.

Court of Appeals Opinion A19

ment); Hoffa v. United States, 385 U. S. 293, 314 (1966)
(Warren, C. J., dissenting), would dismiss the indict-
ment. Although presented by the Department as a means
to avoid a constitutional issue, this argument actually
would require us to abandon a fundamental tenet of con-
stitutional adjudication: a court may not decide a consti-
tutional issue in the abstract. See United States v. Frue-
hauf, 365 U. S. 146, 157 (1961); Aetna Life Ins. Co. v.
Haworth, 300 U. S. 227, 241 (1937) (case must present
“a real and substantial controversy admitting of specific
relief through a decree of a conclusive character, as dis-
tinguished from an opinion advising what the law would
be upon a hypothetical state of facts.”); cf. Golden v.
Zwickler, 394 U. S. 103, 108-09 (1969) (no live contro-
versy in action for declaratory judgment).

At this stage of the proceedings we must decide a
much narrower question: Should defendants be allowed
to develop a full record to support their allegations of out-
rageous prosecutorial misconduct? The trial court has
already implicitly determined, as evidenced by its deci-
sion to conduct a hearing, that this motion is not patently
frivolous. We think the better course is to allow de-
velopment of a record to the extent necessary in the trial
court's discretion to permit a concrete evaluation of de-
fendants motions. Accordingly, we must address the
question whether Schaffer may properly assert a privi-
lege to avoid answering the question for which she was
held in contempt.

V.

We must emphasize at the outset that this case does
not implicate only the first amendment. Rather, it high-
lights a tension between the first amendment and the
fifth and sixth amendments. The first amendment states:
“Congress shall make no law . . . abridging the freedom

A20 Court of Appeals Opinion

of speech, or of the press.” The sixth amendment re-
quires that in all criminal prosecutions, the accused shall
have compulsory process for obtaining witnesses, and the
fifth amendment guarantees that he shall not be deprived
of life, liberty, or property without due process of law.
The tension has been described as a balance between the
“freedom of the press and the obligation of all citizens
to give relevant testimony with respect to criminal con-
duct.” Branzburg v. Hayes, 408 U. S. 665, 710 (1972)
(Powell, J., concurring). The parties to this proceeding
cannot rely on the precise text of the Constitution but
must look to the gloss added to it by previous decisions
of courts faced with specific cases and controversies. All
the specific rights and privileges granted to the press have
been established by means of judicial interpretations of
naked constitutional text, and every court formulatian of a
specific nuance of the Constitution’s text has been ac-
companied by stated reasons. The reasons for the courts’
pronouncements are as important as the pronouncements
themselves.

A.

We are guided by previous interpretations of the
constitutional text by both the Supreme Court and this
court. The first amendment “was fashioned to assure un-
tettexed interchange of ideas for the bringing about of
political and social changes desired by the people.” Roth
v. United States, 354 U. S. 476, 484 (1957), and bot-
tomed on “a profound national commitment to the prin-
ciple that debate on public issues should be uninhibited,
robust, and wide-open. .. .” New York Times Co. v.
Sullivan, 376 U. S. 254, 270 (1964). This national com-
mitment to an unfettered exchange of ideas has been de-
scribed most recently as a bulwark against “arbitrary
interference with access to important information. . . .”

Court of Appeals Opinion A21

Richmond Newspapers, Inc. v. Virginia, — U. S. —,
48 U. S. L. W. 5008, 5015 (July 2, 1980) (Stevens, J.,
concurring). This characterization is justified not because
of the journalist’s role as a private citizen employed by a
private enterprise, but because reporters are viewed “as
surrogates for the public.” Richmond Newspapers, Inc.
v. Virginia, — U. S. —, 48 U. S. L. W. 5008, 5013
(July 2, 1980) (per Chief Justice Burger). This court has
held flatly that journalists have a federal common law
privilege, albeit qualified, to refuse to disclose their con-
fidential sources. Riley v. City of Chester, 612 F. 2d 708,
715 (3d Cir. 1979).

But we believe that very pragmatic reasons as well
as these more abstract concerns underlie our national
commitment. The courts have made a value judgment
that it is far better for there to be immediate unshackled
distribution of news, at the risk of some factual error,
New York Times Co. v. Sullivan, 376 U. S. at 271-72, than
a restraint of the flow of public information that more
likely than not would result if confidential news sources
had to be identified. This judgment is based on a candid
recognition of private human experience, completely out-
side the media world, in which it is commonplace for a
private individual, when conveying news, information, or
plain gossip to a friend, to preface the disclosure with
“Please don’t tell anyone that I told you, but... .” More
often than not, unless the declarant has faith that the re-
cipient will preserve the confidence, he will not bestow it;
also more often than not, when the recipient of the infor-
mation conveys it to a third person, he respects the con-
fidence of the original source.

Moreover, there is a general expectation in certain
sectors of society that information flows more freely from
anonymous sources. Experience in the operation of such
public service facilities as hotels, restaurants, and com-

A22 Court of Appeals Opinion

mon carriers shows that proprietors often solicit from their
customers anonymous information grading the service re-
ceived. Law enforcement officials frequently rely on
anonymous tips.® The rule protecting a journalist’s source
therefore does not depart significantly from daily experi-
ence in informal dissemination of information.

The reporters’ privilege also attempts to protect the
source from retribution. If a practice in private industry
is exposed by a person in a given employment hierarchy,
he risks retribution at the hands of his superiors and his
peers if he is identified as the source. Similar retribution
is not unknown in government service. The danger of
retaliation against a private citizen who reports criminal
activities is obvious.

Our national commitment to the free exchange of
information also embodies a recognition that the major
sources of news are public figures, and that in addition
to being newsmakers, these sources fashion public policy
for government at all levels and in all branches. New

5. See McCray v. Illinois, 386 U. S. 300, 312-14 (1967);
Rugendorf v. United States, 376 U. S. 528, 533 (1964). Confiden-
tiality of informants in this context is not absolute, however. As
this court noted in United States v. Jones, 492 F. 2d 239, 243 (3d
Cir. 1974).

[w]e know that to be successful in the fight against un-
lawful narcotics traffic, the agents of the Bureau of Narcotics
must rely extensively upon the use of informants. It is no
secret either that often these informants are not pillars of the
community and are most reluctant to make themselves avail-
able for testimony in court. Nonetheless, the burdens we im-
pose upon the government officers are justified by the necessity
of preserving the integrity of the trial process. The invaluable
contribution made to society by the difficult and dangerous
work of the narcotics agent cannot be diluted by a conviction
obtained by other than a fair trial.

See also Roviaro v. United States, 353 U. S. 53, 60-61 (1957).

Court of Appeals Opinion A23

ideas wm st be tested in the crucible of public opinion if
our representatives are to receive guidance in deciding
whether a suggested policy will receive public endorse-
ment or opposition. It is extremely important therefore
that varying concepts of public policy be defined and
redefined, tested and retested, by wide public dissemina-
tion. In this respect, the communications media not only
serve as the vehicle that widely disperses information but
also constitute an important instrument of democracy that
assists our officials in fashioning public policy. Without
the protection of the source, the cutting edge of this valu-
able societal instrument would be severely dulled and
public participation in decision-making severely restricted.
The brute fact of human experience is that public officials
are far more willing to test new ideas under the public
microscope through anonymous disclosure than when they
are required to be identified as the sources.

These extremely impressive pragmatic reasons, as
well as conceptually abstract a priori principles, under-
lie the precept that a journalist does in fact possess a
privilege that is deeply rooted in the first amendment.
When no countervailing constitutional concerns are at
stake, it can be said that the privilege is absolute; when
constitutional precepts collide, the absolute gives way to
the qualified and a balancing process comes into play to
determine its limits. Thus, there are sound reasons for
safeguarding the qualified privilege within the limits dic-
tated by the purposes it serves. The rule follows where
its reason leads; where the reason stops, there stops the
rule. United States v. Schreiber, 599 F. 2d 534, 537 (3d
Cir. 1979).°

6. The source of this sentence is, of course, K. Llewellyn, The
Bramble Bush 157-58 (1960). The Supreme Court has approved

this analysis of qualified privileges in the context of government
informers:

A24 Court of Appeals Opinion

B.

The journalists’ privilege therefore must be consid-
ered in the context of Supreme Court teachings that there
is no absolute right for a newsman to refuse to answer
relevant and material questions asked during a criminal
proceeding. Branzburg v. Hayes, 408 U. S. at 690-91.
Although briefs filed in support of Schaffer exaggerate
both the scope of the privilege and the gravity of this par-
ticular appeal,’ this court has taken a more reasonable

6. (Cont'd. )

The scope of the privilege is limited by its underlying pur-
pose. Thus, where the disclosure of the contexts of a com-
munication will not tend to reveal the identity of an informer,
the contents are not privileged. Likewise, once the identity
of the informer has been disclosed to those who would have
cause to resent the communication, the privilege is no longer
applicable.

A further limitation on the applicability of the privilege
arises from the fundamental requirements of fairness. Where
the disclosure of an informer’s identity, or of the contents of
his communication, is relevant and helpful to the defense of
an accused, or is essential to a fair determination of a cause,
the privilege must give way. In these situations the trial court
may require disclosure and, if the Government withholds the
information, dismiss the action.

Roviaro v. United States, 353 U. S. 53, 60-61 (1957) (footnotes
omitted ).

7. For example, the Bulletin Company’s brief states that “[i]t
is difficult to put a more disturbing example of arbitrariness de-
stroying a constitutionally protected right. Unless corrected, the
error below exposes every reporter to the same kind of constitu-
tionally indefensible treatment whenever an allegedly admitted
source testifies.” Brief for Bulletin Company, Amicus Curiae, at
19. The New York Times Company states:

Unless the decision below is reversed, reporters will be
called routinely and repeatedly to testify—without preliminary
findings that their testimony is crucial or unobtainable from

Court of Appeals Opinion AS

view of the balance between the privilege and a criminal
defendant’s rights. We have previously adopted the for-
mulation in the concurring opinion of Justice Powell in
Branzburg:

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

Riley v. City of Chester, 612 F. 2d at 716 (quoting Branz-
burg v. Hayes, 408 U. S. at 710 (Powell, J., concurring) ).
More recently, Justice Rehnquist has stated that although
the courts “have shown a special solicitude for freedom
of speech and of the press, we have eschewed absolutes in
favor of a more delicate calculus that carefully weighs

7. (Cont'd)

other sources—with respect to matters that go to the very core
of the news gathering process. The deterrent effect on these
reporters and on reporters covering other sensitive stories, as
well as on their sources, would be inevitable.

Brief for New York Times Company, Amicus Curiae, at 3. Per-
haps more incredible is the statement by the Reporters Committee
for Freedom of the Press:

The Justice Department is cooperating in this hunt for
news sources by failing to aggressively oppose these subpoe-
nas, as it has done in previous cases. It is helping the de-
fendants to undermine its own indictment because it believes,
apparently, that by sacrificing this news reporter, the govern-
ment will be able to purge itself before the Congress and the
public of its conceded role in leaking news of the ABSCAM
investigation.

Brief for Reporters Committee for Freedom of the Press, Amicus
Curiae, at i-ii.

A26 Court of Appeals Opinion

the conflicting interests to determine which demands the
greater protection under the particular circumstances pre-
sented.” Smith v. Daily Mail Publishing Co., 443 U. S.
97, 106 (1979) (Rehnquist, J., concurring) (citations
omitted). We therefore reject any implication by appel-
lant or amici that the first amendment necessarily must
override other important values whenever a conflict arises.
See Branzburg v. Hayes, 408 U. S. at 692.

The appellant seeks to strike even the threshold
question of whether Vaira had a conversation with her.
The Supreme Court teaches us, however, that “[e]viden-
tiary privileges in litigation are not favored, and even those
rooted in the Constitution must give way in proper cir-
cumstances,” Herbert v. Lando, 441 U. S. 153, 175 (1979),
and that, ““[w]hatever their origins, these exceptions to
the demand for every man’s evidence are not lightly cre-
ated nor expansively construed, for they are in derogation
of the search for truth.” Id. (quoting United States v.
Nixon, 418 U. S. 683, 710 (1974) ). The Court has placed
particular emphasis on the production of evidence in
criminal trials. It has grounded this need for evidence
on both the confrontation and compulsory process clauses
of the sixth amendment and on the due process clause of
the fifth amendment. To protect these constitutionally-
founded rights, courts must assure that all relevant and
admissible evidence is produced. United States v. Nixon,
418 U. S. 683, 711 (1974). Courts must tread carefully
on the hallowed ground where these basic concerns, the
free flow of information and the fair administration of
criminal justice, conflict. See Riley v. City of Chester,
612 F. 2d at 716; cf. Cox Broadcasting Corp. v. Cohn, 420
U. S. 469, 491 (1974) (conflict between free press and
individual privacy ).

Notwithstanding the agonizing difficulty that attends
an accommodation of conflicting interests in a clash of

Court of Appeals Opinion A27

constitutional principles, this court has nevertheless fash-
ioned a formula in a related context that may serve as a
compass in this case: “In striking the delicate balance be-
tween the assertion of the privilege on the one hand and
the interest of either criminal or civil litigants seeking the
information the materiality, relevance and necessity of the
information sought must be shown.” Riley v. City of
Chester, 612 F. 2d at 716. Moreover, we have declared
that the requisite balance cannot be reached unless the
moving party shows that he has attempted to obtain the
information from other sources. Id. at 717.

C.

We make clear that the Riley test is utilized to deter-
mine under what circumstances a journalist no longer
possesses the qualified privilege to refuse to name a source.
We make equally clear that this case does not require dis-
closure of sources. Instead, it presents the explicit ques-
tion whether this reporter is required to affirm or deny
that she had a conversation with Vaira, a self-avowed
source. It also presents an implicit question: whether she
is required to reveal the substance of Vaira’s conversation
with her, omitting portions that explicitly identify other
sources.

Under the circumstances of this case it is not neces-
sary to fashion a test other than Riley to decide these
questions. Even under the more stringent test developed
to determine when a reporter may be compelled to divulge
the source, the defendants have established a record suf-
ficient to demonstrate their entitlement to the limited in-
formation sought. We need not develop a precise test for
the peculiar circumstances presented here, although we
will venture the view that the defendants probably should
be required to prove less to obtain the reporter's version
of a conversation already voluntarily disclosed by the self-

A28 Court of Appeals Opinion

confessed source than to obtain the identity of the source
itself.

Although the district court did not recite the Riley
factors ipsissimis verbis, we will now proceed to deter-
mine whether its ruling can be justified under Riley. Ap-
pellant first argues that the court erred because it did not
specifically articulate the Riley factors. Because the rec-
ord does not disclose that appellant requested a precise
consideration of Riley, we will not fault the district court
if its decision can be justified by application of the fac-
tors. Our only inquiry, therefore, is whether the court's
order comports with the standards developed in Riley.

Riley isolated three criteria that must be met before
a reporter can be compelled to disclose a confidential
source. Riley, 612 F.2d at 717. First, the movant must
demonstrate that he has made an effort to obtain the in-
formation from other sources. Second, he must demon-
strate that the only access to the information sought is
through the journalist and her sources. Finally, the
movant must persuade the court that the information
sought is crucial to the claim. Although this case does
not require a source disclosure, we conclude that de-
fendants have met their burden under the stringent Riley
test for source disclosure.

Defendants have attempted to obtain information
relevant to their motion elsewhere, and therefore meet
the first criterion under Riley. They called Vaira to
testify regarding his knowledge of disclosures from his
office. They also sought disclosure of “The Blumenthal
Report,” a Department of Justice investigation into the
source of the ABSCAM leaks. Oral Argument Transcript
at 39-40. The district court denied their motion for re-
lease of the Blumenthal Report by order of July 31, 1980.
App. at 1435a. More importantly, however, Schaffer is
the most logical source of information about the conver-

Court of Appeals Opinion A29

sation with Vaira because she was the other participant
in it. Having called Vaira, and having noted the un-
resolved questions regarding his testimony, defendants’
next step was to call Schaffer.

The same analysis applies to the second criterion
under Riley. The district court stated that the purpose of
Schaffer’s testimony was to shed light on Vaira’s motiva-
tions in disclosing certain information to her and on his
credibility. Only Schaffer will be able to testify to Vaira’s
credibility with respect to the conversation. Her recollec-
tion of Vaira’s remarks in the context of the conversation
is also a valuable source of information about his motives
for disclosing, and particularly for initiating the dialogue
with her. Defendants quite clearly have no other source
from which they can acquire this insight.

The final criterion under Riley, relevance and im-
portance to the particular proceeding, follows from the
preceding discussion. To compile a complete record for
purposes of the motion to dismiss for prosecutorial mis-
conduct, the motivations and credibility of Vaira are a
central issue. We realize that defendants may fail in
their attempt to prove outrageous conduct sufficient to
warrant dismissal, but even though we cannot intimate
the standards for granting their motions we can at least
assume that motivation and credibility would be important
to a court entertaining such a motion. We conclude,
therefore, that defendants have met the test under Riley
and, because no source disclosure is currently requested,
that they have justified the court’s order for Schaffer to
answer the question put to her.

Appellant argues that if she testifies that Vaira did
not speak to her, the subsequent line of questions may
lead to disclosure of sources. This argument gets appel-
lant nowhere. First, the district court has declared that it
is going to rule on a question-by-question basis and that

A30 Court of Appeals Opinion

its intention is to have no additional sources revealed.
Second, even though the court imposed strict limitations
on the inquiry, we must not forget that Riley indicates
the circumstances in which the reporter may not assert
her qualified privilege. Satisfaction of the Riley test
means that countervailing constitutional rights override
the reporter’s privilege to protect her sources. In view of
the district court’s announced limitations, and our assump-
tion that future disputes will be resolved under the
framework constructed in Riley, we do not reach the
source disclosure issue here. We hold only that the dis-
trict court did not err in ordering Schaffer to answer a
question unrelated to source disclosure, and that her re-
fusal to do so was grounds for civil contempt.

D.

Appellant also cannot bottom her claim on the ab-
stract statement in United States v. Cuthbertson; — F. 2d
—, No. 80-1325, slip op. at 14 (3d Cir. July 23, 1980):
“Nor does the fact that the government has obtained
waivers from its witnesses waive the privilege. The priv-
ilege belongs to CBS, not the potential witnesses, and it
may be waived only by its holder.” As we have noted
previously, Vaira admitted that he was a source. In the
view we take, this is not a case of waiving any privilege.
We have assumed, as we must, that this isolated statement
in the Cuthbertson opinion is valid and that appellant
was the holder of an unwaived journalist’s qualified priv-
ilege. As the Cuthbertson quotation indicates, Vaira’s
admission did not constitute a waiver of Schaffer’s own
qualified privilege not to reveal her unpublished recol-
lections as to the contents of her discussions with Vaira.
However, we also recognized in Cuthber'son that Riley
required the district court to “balance the defendant's
need for the material against the interests underlying the

Court of Appeals Opinion A31

privilege.” — F.2d at —, slip op. at 15. We have shown
above, in Part V. C. of this opinion, that after applying
the test set forth in Riley to the circumstances of this case,
Schaffer’s qualified privilege to refuse to disclose the con-
tents of the Vaira conversation must yield to defendants’
need for the material. We have also shown that, having
made this: determination, it is unnecessary for us to
develop a precise test for balancing defendants’ needs
against Schaffer’s somewhat attentuated interest in refus-
ing to confirm or deny the existence of the Vaira conversa-
tion. Moreover, she is to disclose not the source of any
information, but the contents of a conversation from a
named declarant who has already testified under oath
what he said to her.

VI.

Accordingly, the order of the district court declaring
appellant to be in civil contempt of the district court will

be affirmed.

RAMBO, J., concurring.

I concur in the result reached by the majority, but
for different reasons. The majority attempts to distinguish
this court’s recent decision in United States v. Cuthbertson,
— F, 2d —, No. 80-1325 (3d Cir. July 23, 1980). I find
the facts too similar for distinction, and must disagree with
the holding of the earlier case.

At issue in the portion of Cuthbertson which dis-
cussed the newsgathers privilege was a subpoena duces
tecum served by the defendants on CBS and subsequently
modified by the court. The modified subpoena directed
CBS to produce for the court’s in-camera inspection state-
ments of certain individuals whom the government was
going to use as witnesses in a criminal prosecution. The

A32 Court of Appeals Opinion

individuals had been interviewed by CBS personnel in
connection with its program 60 Minutes. The defendants
wanted access to the unpublished statements made during
the CBS interviews because they thought the statements
might have some value for impeachment at trial. The
individuals who had been interviewed agreed to permit
disclosure of their statements. However, CBS argued that
it had a qualified journalist’s privilege not to reveal its re-
source materials, regardless of the willingness of the
sources of the materials to have them revealed. This court
found that the subpoenaed material was protected by the
journalist’s privilege.

The plurality opinion of the Supreme Court in Branz-
burg v. Hayes, 408 U. S. 665 (1972), did not recognize a
testimonial privilege for newsmen, Id., p. 690. The Court
was concerned that:

The administration of a constitutional newsman’s
privilege would present practical and conceptual dif-

ficulties of a high order. . . .

In each instance where a reporter is subpoenaed
to testify, the courts would . . . be embroiled in
preliminary factual and legal determinations with re-
spect to whether the proper predicate had been laid
for the reporter's appearance. . . . Id., pp. 703-705.

This court recognized a qualified testimonial privilege
in Riley v. City of Chester, 612 F. 2d 708 (3d Cir. 1979).
In Branzburg the Supreme Court was weighing claims as-
serted in support of a journalist’s privilege against the
needs of the public in criminal law enforcement. Riley
was a civil suit. This circuit found that when a reporter
is asked to disclose the source of confidential information
in a civil action, there must be a threshold showing that
the information is crucial to the proceeding and unavail-
able from another source. Riley, p. 717.

Court of Appeals Opinion A33

The most cogent argument for the recognition of a
newsman’s privilege is that the free flow of information to
the media will be encouraged if one desiring to communi-
cate information, but fearing exposure, can be assured that
his identity will never come to light unless he permits it.
Whatever legitimacy this rationale may have, it disappears
once the source willingly identifies himself and consents
to disclosure of his communication. For this reason, I
believe that Cuthbertson was an unjustified extension of
the qualified privilege recognized in Riley.

Had I been sitting with the court when Cuthbertson
was decided, I would have dissented. The same issue is
before us again. Rather than split hairs over when the
question put to a newsman seeks the identity of a confi-
dential source or looks only to the source’s motivation, I
would look to the present state of the expectation of con-
fidentiality. If that expectation no longer exists, I would
hold that the privilege no longer exists.

In the case before us, Peter Vaira disclosed his cour
tacts with Jan Schaffer and testified as to the substance
of his telephone conversations with her. If his communi-
cation with her was initially confidential, it was no longer
confidential when she took the stand. Because the confi-
dentiality element was gone, I would hold that any privi-
lege which may have existed evaporated. Thus, Schaffer
should have answered the questions about her dealings
with Peter Vaira related to the ABSCAM investigation.

A34 District Court Findings

IN THE
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CRIMINAL No. 80-166

UNITED STATES OF AMERICA
v.

HOWARD L. CRIDEN

HARRY P. JANNOTTI

LOUIS C. JOHANSON
GEORGE X. SCHWARTZ

In re:
CONTEMPT PROCEEDINGS, JAN SCHAFFER

FINDINGS AND ORDER
FuLLaM, J. July 10, 1980

Defendants in the above-captioned criminal case filed
Motions to Dismiss the Indictment on grounds, inter alia,
of massive prejudicial pre-indictment and pre-trial pub-
licity, and prosecutorial misconduct. Among the charges
relating to prosecutorial misconduct was the charge that
government officials “leaked” sensational and prejudicial
information to the news media in order to create an at-
mosphere inimical to the recognition and safeguarding of
the rights of the defendants at both the grand jury and
trial stages of the prosecution. An evidentiary hearing on
these motions commenced on July 7, 1980, and is still in
progress.

The Government has conceded, at least for purposes
of disposition of the pending dismissal motions, that the

District Court Findings A35

source of all of the published information which the de-
fendants now complain about was one or more persons em-
ployed by the Department of Justice, the FBI, and/or the
United States Attorney's Office; that is, the Government
has generally accepted responsibility for the “leaks.”
However, the Government has not conceded that the leaks
were deliberate or international, or improperly motivated.
In pressing their dismissal motions, the defendants are at-
tempting to develop information concerning the inten-
tional nature of the “leaks,” and the identity and
motivation of the person or persons responsible.

The defendants subpoenaed several newspaper re-
porters. The reporters filed Motions to Quash the Sub-
poenas, on the grounds that compliance with the
subpoenas would violate their privilege against disclosure
of confidential sources. At the outset of the hearings, I
stayed the subpoenas, pending further development of the
facts through other evidence.

In the course of the evidentiary hearings, Peter Vaira,
Esq., the United States Attorney for this District, testified
fully and at length concerning all of his conversations with
various reporters in connection with this matter. Spe-
cifically, he testified concerning certain conversations with
Ms. Jan Schaffer, a reporter for the Philadelphia In-
quirer. At her request, Ms. Schaffer’s appearance was
deferred until she had an opportunity to consult counsel
and have him present. Ms. Schaffer was called as a wit-
ness at the start of today’s hearing (July 10, 1980); she
was accompanied by counsel, Harold Kohn, Esq.

In the course of ruling originally upon the Motions
to Quash the Subpoenas directed to reporters, I made clear
this Court’s view that no reporter could properly be com-
pelled, against his will, to reveal a confidential source.
In connection with the renewed request for Ms. Schaffer’s
appearance, I reiterated the same view. And in recon-

A36 District Court Findings

sidering the Motion to Quash that subpoena, both on
Thursday afternoon, July 9, and this morning, I reiterated
that opinion.

It was and is my view, however, that when a witness
testifies about what he or she told the reporter, the re-
porter may thereafter be required to testify on that sub-
ject, at least to the extent that the reporter's testimony
would either corroborate or contradict that of the witness.
Of course, there may still be some limits upon the exam-
ination of the reporter; that is, the reporter presumably
should not be required to answer a question if the answer
would disclose the identity of some other source, still con-
fidential. In the context of this case, that problem seemed
unikely to arise. I did not rule out that possibility, how-
ever, but instead informed Ms. Schaffer and her counsel
that it would be necessary to rule on each question
individually.

The only question addressed to Ms. Schaffer was, in
substance, “Did you have a conversation with Mr. Vaira
concerning Abscam on [February 2, February 3, 1980]?”
Ms. Schaffer refused to answer the question, after con-
sultation with her counsel. She was then, twice, directly
ordered by the Court to answer the question; the order
made clear that only a “yes or no” answer was required.
Ms. Schaffer persisted in her refusal to answer the ques-
tion, and was thereupon held in civil contempt.

It was and is my view, and I so find, that the infor-
mation sought by the question was relevant to the hearing
then in progress; that it would provide either corrobora-
tion or impeachment of Vaira’s earlier testimony, which
was not available from any other source; and that a truth-
ful response to the question would not have violated any
privilege.

Confirming the oral order entered from the Bench, I
now make the following

District Court Order A37

ORDER

Anp Now, this 10th day of July, 1980, the Court finds
that the witness, Jan Schaffer, is in civil contempt of this
Court by her refusal to comply with the Court’s direct
order to her to answer the question as to whether she did
or did not have a conversation with Mr. Vaira on the
date specified in the question. It is accordingly OnpERED
that Jan Schaffer is committed to the custody of the At-
torney General until such time as she purges herself of
said contempt by answering said question; said imprison-
ment not to exceed six (6) months in duration.

Ir Is FurTHER OrpERED that execution of the sen-
tence is stayed pending appeal; Ms. Schaffer is remanded
to the custody of her counsel, Harold Kohn, Esq., pending
final disposition of any appeal which may be taken.

By THE Court:
/s/ Joun P. FuLLAM

A38 Court of Appeals Judgment

UNITED STATES COURT OF APPEALS
For THE TuHirp CIRCUIT

No. 80-2001

UNITED STATES OF AMERICA
v.

CRIDEN, HOWARD L.

JANNOTTI, HARRY P.

JOHANSON, LOUIS C.
SCHWARTZ, GEORGE X.

Jan Schaffer, a witness in the above-
referenced proceeding,
Appellant

(D. C. Criminal No. 80-00166-1-2-3-4 )

On APPEAL FROM THE UNITED STATES District CourRT
For THE EASTERN DisTRICT OF PENNSYLVANIA

Present: ALDIsERT and Hunter, Circuit Judges and
Ramso, District Judge®

JUDGMENT

This cause came on to be heard on the record from
the United States District Court for the Eastern District

of Pennsylvania and was argued by counsel on August 6,
1980.

* Honorable Sylvia H. Rambo, of the United States District
Court for the Middle District of Pennsylvania, sitting by desig-
nation.

Court of Appeals Judgment A39

On consideration whereof, it is now here ordered and
adjudged by this Court that the judgment of the said
District Court, filed July 10, 1980, be, and the same is
hereby affirmed.

ATTEST:

/s/ SALLY Mrvos
Sally Mrvos
Clerk

October 10, 1980

A40 _ Court of Appeals Order

UNITED STATES COURT OF APPEALS
For THE THIRD CrRcuUIT

No. 80-2001

UNITED STATES OF AMERICA
v.

CRIDEN, HOWARD L., JANNOTTI, HARRY P.,
JOHANSON, LOUIS C., SCHWARTZ, GEORGE X.

Jan Schaffer, a witness in the above-
referenced proceeding,
Appellant.

(E. D. Pa. Crim. No. 80-00166-1-2-3-4 )

SUR PETITION FOR REHEARING

Present: Srrrz, Chief Judge, and ALpIsERT, GIBBONS,
RosENN, Hunter, WEis, GARTH and HIGGINBOTHAM,
Circuit Judges, and Ramso, District Judge.°

The petition for rehearing filed by Appellant in the
above entitled case having been submitted to the judges
who participated in the decision of this court and to all
the other available circuit judges of the circuit in regular

* Honorable Sylvia H. Rambo, of the United States District
Court for the Middle District of Pennsylvania, sitting by desig-
nation.

Court of Appeals Order A41

active service, and no judge who concurred in the decision
having asked for rehearing, and a majority of the circuit
judges of the circuit in regular active service noi having
voted for rehearing by the court in banc, the petition for

rehearing is denied.
By the Court,

/s/ ALDISERT
Aldisert
Judge

Dated: November 7, 1980

Judges Adams and Sloviter did not participate in the con-
sideration of this matter.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0911%3A1. Public record. Not legal advice.