Opposition — Schaffer v. United States

No. 80-915

IN TH

SUPREME COURT OF THE UNITED STATES

October Term, 1980

UNITED S

CRIDEN, HOWARI

JOHANSON. LOUIS

rATES OF AMERICA

ae

»L.. JANNOTTI, HARRY P..

C.. SCHWARTZ, GEORGE. X.

Jan Schattfer, a Witness in the Above-Reterenced

Proceeding,

Petitioner

On Petition for Writ of Certiorari

to the United States Court of

Appeals for the Third Circuit

BRIEF FOR RES

CRIDEN, LOUIS C.

PONDENTS HOWARD L.

JOHANSON AND GEORGE

XK. SCHWARTZ IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

Richard A. Sprague

Edward H. Rubenstone

SPRAGUE, GOLDBERG &

RUBENSTONE

Richard Ben Veniste

Neil Levy

MELROD, REDMAN & GARLAN

1801 K Street, Suite 1100-K

Suite 400, Wellington Building Washington, D.C. 20036

135 South 19th Street

Philadelphia, Pa. 19103

(215) 561-7681

Counsel for Respondent

George X. Schwart: -

John J. Dutty

2800 Two Girard Plaza

Philadelphia. Pa. 19102

(215) 568-6500

Counsel for Respondent

Louis ©. Johanson

THE LEGAL INTELLIGENCER, 66 NORTH JU

(202) 833-3700

Paul R. Rosen

SPECTOR COHEN HUNT &

ROSEN, P.C.

1700 Market Street, 29th Floor

Philadelphia, Pa. 19103

(215) 241-8800

Counsel for Respondent

Howard L. Criden

NIPER STREET. PHILA, PA 19107 (215) 561-4050

TABLE OF CONTENTS

Page

Reasons for Denying the Writ ................ ]

RE OE iene ee a 8

TABLE OF AUTHORITIES

Branzburg v. Hayes, 408 U.S. 665 (1972) ...... 15

Herbert v. Lando, 441 U.S. 153 (1979) ......... 5

Nebraska Press Ass’n. v. Stuart, 427 U.S. 539

EN rien a Gia a et fe) 7

Riley v. City of Chester, 612 F.2d 708 (3d Cir. 1979) 2,6

United States v. Hampton, 425 U.S. 484 (1976) . 3

United States v. Russell, 459 F.2d 671 (9th Cir.

1972), rev'd 411 U.S. 423 (1973) ............ 3

United States v. Serubo, 604 F.2d 807 (3d Cir.

I eed nce gala kp 8g- 4c Bln oa dawn 3

United States v. Steelhammer, 539 F.2d 373 (1976)

rev'd on other grounds on rehearing 561 F.2d 539

ne WI he are aha g wi a wag Geek w Rae 7

United States v. Twigg, 588 F.2d 373 (3d Cir.

BGAN GREE rere SPR Ler ane ea see 3

No. 80-915

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

UNITED STATES OF AMERICA

U.

CRIDEN, HOWARD L., JANNOTTI, HARRY P.,

JOHANSON, LOUIS C., SCHWARTZ, GEORGE X.

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

BRIEF FOR RESPONDENTS HOWARD L.

CRIDEN, LOUIS C. JOHANSON AND GEORGE

X. SCHWARTZ IN OPPOSITION TO

THE PETITION FOR WRIT OF CERTIORARI

REASONS FOR DENYING THE WRIT

Notwithstanding the impassioned argument pre-

sented by Petitioner in her Petition to this Court, the

simple fact is that no question sufficiently significant to

warrant consideration by this Court is presented in this

case. Indeed, despite the potential for disparate ap-

proaches to the issue of the proper scope of a journalist’s

testimonial privilege, the Circuit courts have adopted a

consistent stance in this area and have repeatedly and

properly applied the standards established by this Court

in Branzburg v. Hayes, 408 U.S. 665 (1972), on a case-

by-case basis in light of the particular facts involved in

each such case. No dispute exists among those Courts of

l

2

Appeals that have addressed the qualified privilege ques-

tion and no necessity exists for this Court to consider the

issues raised by this Petition.’

Thus, petitioner’s assertion that a “lack of uniform-

ity” exists in this area is not borne out by the facts since

every appellate court that has dealt with this question

has, with only semantic differences, established and ap-

plied a three-part test: Is the information sought of a

crucial nature and does it go to the heart of the claim?;

Are other sources of information available and, if so,

have those sources been exhausted?; and Is there a

compelling need for the information sought? And it is

this precise test, the very test which has been adopted by

the seven circuits that have dealt with the question,

which was employed by the Third Circuit in this case,

and it is this same set of standards for which Petitioner

seeks this Court’s imprimatur. (See Petition, at 8.) Given

the established state of the law in this area, it is respect-

fully suggested that such approval is unnecessary and

that, even if this Petition were granted and Petitioner’s

suggestions sustained, the Third Circuit’s holding in

this case would be unaffected.

Furthermore, none of the contentions set forth by

Petitioner in support of her position have any merit once

they are applied to the specific facts of this case and their

internal inconsistency is recognized:

A. The mere fact that the proceeding at issue in-

volves a criminal defendant’s motion to dismiss the in-

dictment for prosecutorial misconduct and that such a

motion is infrequently successful is of no significance

whatsoever in assessing the propriety of compelling a re-

1. In each of the decisions which have addressed this issue.

cited in Petition, at 6n.5, the Courts of Appeals have emploved the

very same standards adopted by the Third Circuit in Riley v. City of

Chester, 612 F.2d 708 (3d Cir. 1979), and used by the Third Circuit

in its determination to sustain the contempt citation in the instant

case.

3

porter to testify. No doubt exists but that defendants are

entitled to raise and litigate this issue, and it can further

be asserted with high assurance that, despite any dis-

favor with which courts may view dismissal of an indict-

ment on such grounds, sufficient circumstances can

and have been presented to justify the imposition of

sanctions for such governmental misconduct, including

dismissal of indictments. E.g., United States v. Twigg,

588 F.2d 373 (3d Cir. 1978); see, United States v.

Serubo, 604 F.2d 807 (3d Cir. 1979); See also United

States v. Hampton, 425 U.S. 484, 494 (1976) (Powell J.,

concurring in judgment); United States v. Russell, 459

F.2d 671 (9th Cir. 1972), rev’d 411 U.S. 423 (1973). As

the Third Circuit stated in its Opinion below, it would be

improper for any court to reject defendants’ contentions

absent a complete factual record, and that, given the

trial court’s conclusion that defendants’ position was not

frivolous, an opportunity must be afforded to them to de-

velop just such a record. (A.18-19).

Moreover, it must be emphasized that the factual

predicate of the entire prosecution — the Justice

Department’s ABSCAM investigation — and the well-

publicized circumstances surrounding both the investi-

gation itself and the manner in which it was initially

brought to the attention of the public, plainly raises sub-

stantial issues involving the propriety of governmental

conduct and its effect upon the issuance of the indict-

ments and any subsequent trial proceedings. To cava-

lierly assert, as does petitioner, that the defense motions

should never have been considered or should have been

delayed until after trial is most presumptuous.” And, in

light of the district court’s post-trial decision in this case

which expressly found sufficient governmental miscon-

2. It is apparent that defendants had the right to litigate and

obtain a decision as to all preliminary motions so that, in the event

they were successful, they could have avoided the financial de-

mands and emotional rigors of trial.

4

duct to warrant the entry of judgments of acquittal as to

both defendants Schwartz and Jannotti, such an asser-

tion is plainly incredible.”

B. Petitioner was not compelled to participate in

some unholy process of elimination and the facts of this

proceeding should not be obscured by such generalized

and misleading averments. In this case, the source,

United States Attorney Vaira, revealed his identity and

testified to the fact that he had called and spoken with

Petitioner and to the content of these conversations. Up

to the point in time when she was held in contempt of

court, the only inquiry made of Petitioner was whether

she had spoken to Mr. Vaira. It was this question and

this question alone which Petitioner refused to answer.

(A.27)* On these facts, the only facts before the Court in

\

3. On November 26, 1980, the district court directed the entry

of judgments of acquittal as to defendants Schwartz and Jannotti on

the grounds, inter alia, that the evidence before it established en-

trapment as a matter of law and that governmental overreaching in

this case amounted to a violation of defendants’ right to due process

of law.

It should also be emphasized that, despite the entry of judg-

ments of acquittal in this case, the testimony of petitioner is vet not

moot since the government has appealed the district court's deci-

sion and, in the event that decision is reversed on appeal and the

case remanded to the district court, defendants will, as the Court of

Appeals noted, have the right to proceed with petitioner's testimony

and to resubmit their motions to dismiss the indictments. (A.12)

4. It should be emphasized that, as the Third Circuit recog-

nized, “this case does not require disclosure of sources.” (A.27).

Nevertheless, the Court of Appeals applied the “more stringent test”

fashioned for disclosure of sources in Riley v. City of Chester,

supra, and found:

5s . the defendants have established a record sufficient to

demonstrate their entitlement to the limited information

sought. We need not develop a precise test for the peculiar cir-

cumstances 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 volun-

a

this instance, one is hard-pressed to conclude that com-

pelling Petitioner to respond would or could have any di-

rect or even peripheral impact upon a newsman’s ability

to gather information, report the news or even to assure

potential sources that their identities will be held in con-

fidence. To suggest further that this limited inquiry

might somehow undermine the public’s perception of a

journalist’s “absolute trustworthiness” — another ques-

tionable assertion given the absence of any absolute

newsman’s privilege, see, e.g., Herbert v. Lando, 441

U.S. 153 (1979); Branzburg v. Hayes, supra, is likewise

without merit once it is recalled that, here, the source

voluntarily disclosed his identity.

Finally, Petitioner’s entire argument in support of

her Petition is grounded upon her speculations as to the

scope of inquiry which might have been permitted by

the trial court if defense counsel’s questioning had con-

tinued. However, any validity which might otherwise be

ascribed to these assertions cannot now be decided. The

trial court stated that it would rule only on a question-by-

question basis in connection with petitioner’s testimony

(A.36), and, as a result, the extent of petitioner's testi-

mony which would have been required by the district

court is presently unknown.

C. In attacking the appellate court’s conclusion

that the Petitioner’s testimony satisfied the requirement

tarily disclosed by ihe self-confessed source than to obtain the

identity of the source itself. (A.27-28) (emphasis added)

“Satisfaction of the Riley test means that countervailing consti-

tutional rights override the reporter's privilege to protect her

sources. In view of the district court’s announced limitations,

and our assumption 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 district court did

not err in ordering Schaffer to answer a question unrelated to

source disclosure, and that her refusal to do so was grounds for

civil contempt.” (A.30) (emphasis added )

6

that such testimony be “crucial,” under the standard es-

tablished by Riley v. City of Chester, supra, Petitioner

again attempts to divorce its position from the facts of

this case. Arguendo, corroborative or impeaching testi-

mony may not be sufficiently “crucial” in many cases to

justify compelling a journalist to testify. However, as the

Court of Appeals found in this case, where the issues

raised in the trial court proceeding involve allegations of

serious and flagrant prosecutorial misconduct (A.34-35),

the motivation of government officials in “leaking” infor-

mation about ABSCAM to the news media is central to

that proceeding, and any information which might shed

light upon the conduct of those officials or, perhaps, dis-

pute their sworn testimony as to these events, must be

available if defendants are to receive a fair hearing.

(A.29).

D. As to the Petitioner’s contention regarding the

purported availability of other sources for the informa-

tion sought from her, it is unrealistic to suggest that any

other reliable source of information exists to a two-party

conversation other than the two parties themselves.

Having reviewed United States Attorney Vaira’s recol-

lection of the conversation with Petitioner, and having

established their right to inquire, at least initially, into

Petitioner’s understanding of that same conversation,

the sole source of such an inquiry must be Petitioner

herself. Furthermore, as the Court of Appeals noted, de-

fendants did attempt to obtain this or related information

by pursuing other avenues, some of which were barred

to them by the Court’s refusal to disclose internal gov-

ernmental investigative materials such as “The

Blumenthal Report.” (A.28-A.29). However, any sugges-

tion that disclosure of such sources or materials would

have served to satisfy defendant’s need for Petitioner’s

testimony is sheer speculation and is, far more likely,

wholly unfounded since the trial court had received

“The Blumenthal Report” in camera, was aware of its

7

contents, and could have alleviated the need for Petition-

er’s testimony by disclosing any relevant portions of that

Report. Obviously, the district court’s action in this in-

stance plainly indicates that no information relative to

the area of Petitioner’s testimony was included in that

Report.

E. Petitioner misstates the rationale expressed by

the Court of Appeals in holding that the instant issue,

since it implicates the court’s authority to hold and con-

duct public hearings, is not moot.? Neither the trial nor

appellate court states or suggests that such a rationale,

standing alone, will be sufficient to sustain a civil con-

tempt order regardless of the correctness of that order,

as Petitioner contends, nor does the Court of Appeals

employ this principle in order to avoid an inquiry into the

merits of the contempt Order. (Petition, at 11.) What the

Third Circuit held was that the validity of the contempt

Order remains ripe for decision regardless of the status

of the underlying proceeding, and not that the validity of

that Order would escape examination. The result of

such a holding is to afford to Petitioner just that opportu-

nity for appellate review which she vigorously demands

and assures that, by reason of unrelated events, a trial

court’s contempt Order is permitted to stand without any

right of review.®

5. Here, the Court of Appeals found, on other grounds, that the

underlying proceeding was not moot. Thus, this alternative holding

may be viewed as dicta.

6. The desirability of affording appellate review to such orders,

given their significance and the fact that they are capable of repeti-

tion has long been recognized and approved by the journalistic es-

tablishment. See Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 546-

47 (1976); United States v. Steelhammer, 539 F.2d 373, 376, rev'd

on other grounds on rehearing 561 F.2d 539 (4th Cir. 1977) (citing

Cases ).

8

CONCLUSION

The Third Circuit, as well as the trial court below,

carefully and correctly determined, under the appropri-

ate standards and in light of the relevant constitutional

considerations, that Petitioner should be required to

testify as directed by the court. In effect, and to quote

Petitioner’s own language, these courts found, upon

analysis of the facts of this case, that Petitioner’s testi-

mony was “strictly and inescapably necessary to accom-

modate another constitutionally mandated interest,”

(Petition, at 8) that being the right of the criminal defen-

dants herein to that testimony. (See A.30) Given this ex-

press ruling, the absence of any conflict or disagreement

among the courts of appeals as to the nature of a journal-

ist’s qualified privilege, and for all of the other reasons

set forth herein, the instant Petition for Certiorari must

be denied.

Respectfully submitted,

Richard A. Sprague Richard Ben Veniste

Edward H. Rubenstone Neil Levy

SPRAGUE, GOLDBERG & MELROD, REDMAN & GARLAN

RUBENSTONE 1801 K Street, Suite 1100-K

Suite 400, Wellington Building Washington, D.C. 20036

135 South 19th Street (202) 833-3700

Philadelphia, PA 19103 Paul R. Rosen

(215) 561-7681 SPECTOR COHEN HUNT &

Counsel for Respondent ROSEN, P.C.

George X. Schwartz 1700 Market Street, 29th Floor

John J. Duffy Philadelphia, PA 19103

2800 Two Girard Plaza (215) 241-8800

Philadelphia, PA 19102 Counset for Respondent

(215) 568-6500 Howard L. Criden

Counsel for Respondent

Louis C. Johanson