United States v. Schiavo

504 F.2d 1, 1974 U.S. App. LEXIS 7268

• Court: Court of Appeals for the Third Circuit
• Decided: August 8, 1974
• Docket: Nos. 73-1855, 73-1856
• Status: Published

Opinions

OPINION OF THE COURT

VAN DUSEN, Circuit Judge.

Philadelphia Newspapers, Inc. (hereinafter the “Philadelphia Inquirer”) and Susan Q. Stranahan, appellants in No. 73-1855 and petitioners in No. 73-1856, seek reversal of a written and docketed district court order refusing to vacate an oral order, announced from the bench, enjoining them and other news media representatives from publishing, during the perjury trial of Frederick Schiavo, information concerning murder and conspiracy indictments pending against Schiavo in a related matter.¹

Schiavo’s perjury trial arose out of the death of Martin Alan Hess, a Government informer scheduled to testify in narcotics and counterfeit eases, who was killed in August 1972 when a bomb which had been placed in his car exploded. Schiavo’s perjury indictment charged that he had lied to a federal grand jury which was investigating Hess’ death. In addition to being indicted for perjury, Schiavo was indicted by a federal grand jury in the Eastern District of Pennsylvania on charges of conspiracy in connection with the alleged murder of the informer and by the State of New Jersey on charges of first degree murder.

Schiavo’s perjury trial commenced on Wednesday, October 3, 1973. In an article appearing on Thursday, October 4, under the by-line of appellant Stranahan, the Philadelphia Inquirer reported the events of the first day of trial. The article also indicated that the defendant was “one of five men charged with'conspiring to kill a government informer last August.” On Thursday afternoon, fearing that the jury in Schiavo’s trial might read the article and learn of the other indictments, the district judge summoned members of the press, including appellant Stranahan, to sidebar and stated that, while he could not tell the press what to publish, he hoped that they would appreciate the problems involved in mentioning the other two indictments.² On Friday, October 5, again under the by-line of appellant Stranahan, the Philadelphia Inquirer published an account of Thursday’s proceedings and, in apparent disregard of the district court’s request, referred to the existence of the two other indictments. The article stated that “Schiavo also is charged by the Federal government with conspiring to kill Hess and with first-degree murder in New Jersey.” On Friday afternoon, at approximately 2:00 P.M., the district judge called the news media representatives covering the trial before him, stated that “they could print that which went on in the court room,” but orally ordered them not to mention the above-mentioned two other indictments for different offenses in any further stories, and specifically stated that appellant Stranahan and the editors of the Philadelphia Inquirer would face contempt charges if they violated this order. ³ This order was not transcribed that week; also, it was neither set forth in writing by the district court nor entered on the district court docket until after the appeal was docketed in this court. The first evidence on the district court docket of the reduction of the district court order to writing is a docket entry on October 10, 1973.⁴

At approximately 4:00 P.M. the same afternoon (October 5), counsel for appellants appeared before the district court and presented argument in support of a written motion that the above oral order be vacated. After hearing argument,⁵ the district court denied the motion to vacate and subsequently denied a motion for a stay of the order pending appeal. This order refusing to vacate the prior oral order was set forth in writing and entered on the district court docket. The appellants immediately filed a notice of appeal late Friday afternoon, October 5, from the 4 P.M. order refusing to vacate the oral order announced about 2 P.M.

In their appeal, the appellants challenge the order of the district court on both constitutional and procedural grounds. For reasons which appear below, we reverse the district court order on procedural grounds.

I.

This appeal confronts this court with two preliminary issues.

First, appellee⁶ contends that there is no appealable order in the instant case. Specifically, the appellee contends that the district court’s oral silence order is not an injunction within the meaning of 28 U.S.C. § 1292(a)(1) but merely an incidental court order which is non-appealable, notwithstanding the fact that it purports to enjoin publication by the newspapers of certain information. We find it unnecessary to resolve this issue as we have concluded that the written order of October 5, 1973, is an appealable final order under 28 U.S.C. § 1291, since it falls within the “collateral order” doctrine established by the Supreme Court in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). In Cohen, the Supreme Court defined collateral orders as

“that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.

We hold this order appealable because it is a final disposition of a claimed right which is not an ingredient of the cause of action and does not require consideration with it.”

337 U.S. at 546-547, 69 S.Ct. at 1226.

The order in the instant case constituted a final decision since it determined a matter independent of the issues to be resolved in the criminal proceeding itself, bound persons who were non-parties in the underlying criminal proceeding and had a substantial, continuing effect on important rights.⁷

Secondly, the appellee contends that the instant appeal should be dismissed as moot since Schiavo’s criminal trial has been completed and there no longer exists any restraint upon the appellants. We reject this contention and hold that this case is reviewable as a dispute “capable of repetition, yet evading review.” Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911); see also DeFunis v. Odegaard, 416 U.S. 312, 318, 94 S.Ct. 1704, 1707, 40 L.Ed.2d 164 (1974); Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). This conclusion is not affected by the possibility that appellants may be cited for contempt of the silence order. The publication of proscribed matters in violation of the order would constitute a criminal contempt, and the merits of such an order could not ordinarily be challenged on appeal from a citation for criminal contempt. See United States v. United Mine Workers, 330 U.S. 258, 289-295, 67 S.Ct. 677, 91 L.Ed. 884 (1947); Walker v. Birmingham, 388 U. S. 307, 314-320, 87 S.Ct. 1824, 18 L.Ed.2d 1210 (1967).⁸ If this case were deemed moot, it is unlikely that members of the press who are subject to a silence order would ever be able to obtain appellate review, since the underlying criminal proceeding would almost always terminate before the appellate court hears the case.

II.

Appellants advance numerous arguments in support of their contention that the district court erred in refusing to vacate the silence order. Before reaching those arguments, however, we must address one problem not noted by appellants.

We assume for purposes of this appeal that the district court had power to enter the silence order, even though that order directly bound non-parties and governed their actions outside the presence of the court. The Sixth Amendment imposes a duty on the district courts no less than on prosecutors to take reasonable measures to ensure defendants fair trials, free of prejudice and disruption. See Sheppard v. Maxwell, 384 U.S. 333, 361-363, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966). Certainly, a federal trial judge may, to that end, restrict the actions of non-parties in his presence. See United States ex rel. Robson v. Malone, 412 F.2d 848 (7th Cir.1969); United States v. Venuto, 182 F.2d 519 (3d Cir.1950). In fulfilling their charge, the district courts also are authorized to restrict conduct outside the courtroom of parties, lawyers, jurors, witnesses, court officials and others connected with the trial process. Sheppard v. Maxwell, supra at 361-362, 86 S.Ct. 1507. This nucleus of clear judicial power to assure defendants fair trials underlies our assumption that the court below possessed the power to pro-' hibit non-parties from taking actions, out of court, that would imperil efforts to provide Schiavo a fair trial.⁹ This assumption does not pre-judge the possible constitutional limits on the exercise of such a power.¹⁰

Appellants’ most vigorously pressed contention is that the district court’s refusal to vacate the silence order was error because entry of the silence order against newspapers and reporters contravened the First Amendment guarantee of freedom of the press from governmental restraint. Appellants also argue that the district court’s initial order should have been vacated because it was entered without according them appropriate procedural safeguards.

We have concluded that the district court’s written order of October 5, refusing to vacate the previous oral order, should be reversed since the previous oral order was procedurally deficient in various important respects. Our conclusion that this case should be reversed on procedural grounds makes resolution of the constitutional issue unnecessary. See Alma Motor Co. v. Timken-Detroit Axle Co., 329 U.S. 129, 136-137, 67 S.Ct. 231, 234, 91 L.Ed. 128 (1947). In Alma Motor Co., supra, the Supreme Court stated:

“If two questions are raised, one of non-constitutional and the other of constitutional nature, and a decision of the non-constitutional question would make unnecessary a decision of the constitutional question, the former will be decided. This same rule should guide the lower courts as well as this one. We believe that the structure of the problems before the Circuit Court of Appeals required the application of the rule to this case.” ¹¹

This case came before us in an unusual procedural posture. The oral silence order which was entered at 2 P.M. on October 5, 1973, and which is being challenged on this appeal was never reduced by the district judge to written form, stating in specific terms exactly what conduct on the part of the press was being restrained and for what reasons such conduct was being restrained, nor was it entered on the district court docket in the criminal proceeding against Sehiavo. In addition, no part of the official transcript relating to the oral order was filed until October 10, 1973,¹² and the transcript of the actual silence order itself was not completed and filed until November 6. Therefore, as of the time that the notice of appeal was filed in this court on Friday, October 5, there was no written version of the silence order, either in the form of a written order on a separate document or in the form of a transcript of the proceedings, which this court could consider in resolving the appeal. The sole written record which was either presented to or available for this court’s consideration was the written order refusing to vacate the prior oral order. This written order, consisting of one sentence, gave no indication of the substance of the previous oral order or of the reasons for its issuance.

In addition to the above, the silence order was not simply an interlocutory order binding persons already parties to the criminal proceeding and already properly before the court. Eather, the silence order was directed at non-parties, who were brought before the court solely because of the court’s desire to prevent outside interference with the trial. As such, the silence order was a final decision in a collateral matter against non-parties, with a continuing binding effect against such persons which would last indefinitely. Because of the application to revoke the oral order, it could be expected that the persons bound by that order would seek immediate appellate review since they faced the threat of criminal contempt charges if they disobeyed such order.

In light of the above factors, we have concluded, pursuant to our supervisory powers,¹³ that the oral silence order was procedurally deficient. Where a district court enters such an order which is immediately appealable as a final decision in a collateral matter, and where such order binds non-parties for a continuing period of time, the order should be reduced to written form, stating specifically the terms of the order and the reasons therefor, and entered on the district court docket.¹⁴ Accordingly, we hold that the written order of October 5, 1973, must be reversed. The district court should have vacated the oral order, held a prompt hearing after notice to the involved members of the press and parties, and, if a silence order was deemed to be justified, reduced such order to writing with specific terms and reasons and had it entered on the district court docket.¹⁵

The above procedural requirements, which we impose under our supervisory power, are particularly necessary in a ease such as the instant case, where the district court order affects the First Amendment rights of the press. First, the district court’s failure to reduce the order to writing subjected the First Amendment rights of the press to an impermissible “chilling effect.” The appellants could act only at their own risk since they were subject to the threat of criminal contempt for failure to comply with the order, and such risk was necessarily increased by the fact that the appellants had no written version of the order detailing precisely what conduct was prohibited. Second, the fact that the order involved the balancing of fundamental constitutional rights made it even more imperative that this court, in reviewing the merits of the order, have before it a written order providing specifically what conduct was restrained and for what reasons.

Finally, we note that the procedural requirements which we impose under our supervisory powers for this type of proceeding¹⁶ are similar to those imposed by the Federal Rules of Civil Procedure. Cf. F.R.Civ.P. 54, 58, 65(d), and 79(a).¹⁷

For the foregoing reasons, the district court written order of October 5, 1973, will be reversed and the case remanded for such action as may be necessary, consistent with this opinion.

1 . In their petition for a writ of mandamus and/or prohibition in No. 73-1856, petitioners advance the same arguments and grounds for relief as in their appeal in No. 73-1855. Because our disposition of the appeal in No. 73-1855 renders the petition for a writ of mandamus and/or prohibition moot, such petition will be denied at No. 73-1856. Cf. State ex rel. Miami Herald v. Rose, 271 So.2d 483 (Fla.Ct.App.1972).

2 . See N.T. 2-17 to 2-18. The record indicates that the district judge stated the following to the press reporters:

“Lady and gentlemen, the defendant in this case is charged with perjury. There is an article in this morning’s Inquirer which points out that he was also charged with another crime.

“I would ask you, please, that if you feel that you must write about this case, write about this ease and not about other cases. It makes it most difficult to carry on a criminal trial if this sort of thing happens, and I would ask each of you, please, to try to be aware of the problem with the Court and criminal defendants.

“I know I can’t tell you what to write, but I would hope that you would be aware of the problems that you create, at least. “All right, thank you very much.”

Defense counsel (Mr. Madnick) had requested the court Thursday morning to tell the press “not to make reference to the fact that Mr. Schiavo has also been indicted in another matter” (N.T. 2-17). A similar request was made on Friday morning (N.T. 3-17ff.).

3 . See N.T. 3-61 to 3-62. The record indicates that the district judge stated the following (Doc. 20 in E.D.Pa.Crim. # 73-302) :

“(At side bar the following ensued with the following parties present:

“Richard Meltzer, Esquire; Irving Mad-nick, Esquire; Edward Polinski, Deputy Clerk ; Mr. Rosenthal, U.P.I.; Mr. Enoch, Daily News; Miss Stranahan, Inquirer; Mr. Messaros, Bulletin and Mr. Guadiosi, U.P.I.)

“ (Discussion was had off the record.)

“THE COURT: While we were off the record I had the members of the press to come into the courtroom and they have all come in, at least so far as I know, and that would be Miss Stranahan, and I don’t know your name.

“MR. ROSENTHAL : Mr. Rosenthal.

“THE COURT : Which paper?

“MR. ROSENTHAL: The Associated Press.

“MR. ENOCH: Danny Enoch, Associated Press, Judge.

“MR. GUADIOSI: John Guadiosi, United Press International.

“THE COURT: Miss Stranahan, of the Inquirer and Mr. Henry Messaros from the Bulletin. I told them all that while they could print that which went on in the courtroom so far as this trial is concerned they were not to write nor were their papers to print matters that were not said here in the courtroom.

“MR. MADNICK: Specifically, I think Your Honor should—

“THE COURT: And specifically I told Miss Stranahan that she had in a story byline that had been pointed out that this defendant had been indicted in New Jersey and had been indicted for other offenses in this jurisdiction. I said that there was to be no repetition of that story or those facts and that if it was repeated I would consider it a matter of contempt of court and I would consider holding her liable for contempt and holding her editors liable for contempt.

“MR. ENOCH: Would you agree that without the known connection between Mr. Schiavo and the Hess murder this trial seems to be very little without the—

“THE COURT: I didn’t say anything about your not printing that which is said here in the courtroom. I’m talking about information that has not come out in the course of the trial and there have been many references to Martin Alan Hess in the course of this trial.

“MR. ENOCH: How about information we can find in our libraries at the different papers?

“THE COURT: If it hasn’t come out here in this courtroom I would consider that contempt.

“Anything you want me to add, Mr. Mad-nick?

“MR. MADNICK: No, sir.

“(Side bar concluded.)”

4 . It is noted that this transcript (Document 12, filed October 10) contains the oral statement in open court of the district judge at 2 P.M., setting forth his oral order, which was also transcribed again in the transcript filed November 6. See note 3. (Document 20, filed 11/6/73 in E.D.Pa., Crim. No. 73-302).

5 . See N.T. 3-13 of Document 12 in E.D.Pa. Criminal No. 73-302.

6 . Appellee herein designates the United States. Schiavo filed no brief and took no part in this appeal.

7 . See Rendleman, Free Press — Fair Trial; Review of Silence Orders, 52 N.C.Law Rev. 127, 128-30 (1973).

8 . We note that while the merits of the allegedly violated order would ordinarily not be reviewable on appeal of a criminal contempt, the breadth and vagueness of the order would be open to question. See Walker v. Birmingham, 388 U.S. 307, 317, 87 S.Ct. 1824, 18 L.Ed.2d 1210 (1967). Appellants’ challenge to the order here, however, is not limited to its asserted ambiguity. Also, on this record, which does not contain any evidence of the alleged contempt occurring after October 5, it is not appropriate to consider whether the rule of these cases should be applied in this situation,, where the representatives of the press have filed a motion to vacate the oral silence order and an immediate appeal from the denial of such motion. By contrast, the Supreme Court pointed out in Walker that no effort was made to modify or dissolve the enjoining order. Id. at 318, 87 S.Ct. 1824.

9 . The plurality opinion in Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L. Ed.2d 626 (1972), also assumes that courts possess this power and, further, intimates a resolution of the constitutional question we avoid here: what action may the district court take to carry out its duty under the Sixth Amendment without violating First Amendment limitations on its actions? The plurality in Branzburg declared :

“Newsmen ... may be prohibited from attending or publishing information about trials if such restrictions are necessary to assure a defendant a fair trial before an impartial tribunal.”

Id. at 684-685, 92 S.Ct. at 2658. We do not attempt to foresee whether the Court will adhere to this dictum in the future.

10 . In view of the jurisdiction granted to the district courts over “all offenses against the laws of the United States” in 18 U.S.C. § 3231 and the requirements of the Sixth Amendment, it is unnecessary to consider whether the terms of 28 U.S.C. § 1651(a) authorize the district court in a criminal case to issue such an essentially injunctive order affecting persons who are not parties in aid of its criminal jurisdiction. Cf. United States v. Morgan, 346 U.S. 502, 506-513, 74 S.Ct. 247, 98 L.Ed. 248 (1954) ; 9 Moore’s Federal Practice (2d ed.) § 110.29; United States v. Steese, 144 F.2d 439, 442, 445-447 (3d Cir.1944) ; United States v. Lynch, 132 F.2d 111, 113 (3d Cir.1943).

11 . See also Ashwander v. Valley Authority, 297 U.S. 288, 345-348, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (concurring opinion of Brandéis, J.) ; United States v. United States District Court, 407 U.S. 297, 340; 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972) (concurring opinion of White, J.) ; Zschernig v. Miller, 389 U.S. 429, 444-445, 88 S.Ct. 664, 19 L.Ed.2d 683 (1968) (concurring opinion of Harlan, J.). In his concurring opinion in Ashwander, Justice Brandéis stated that “the Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.” 297 U.S. at 347, 56 S.Ct. at 483. See also Rescue Army v. Municipal Court, 331 U.S. 549, 568-569, 67 S.Ct. 1409, 91 D.Ed. 1666 (1947).

12 . See note 4, supra.

13 . McNabb v. United States, 318 U.S. 332, 341, 63 S.Ct. 608, 87 L.Ed. 819 (1942) ; Bartone v. United States, 375 U.S. 52, 54, 84 S.Ct. 21, 11 L.Ed.2d 11 (1963) ; Government of the Virgin Islands v. Bodle, 427 F.2d 532, .534 (3d Cir.1970) ; cf. LaBuy v. Howes Leat er Co., 352 U.S. 249, 259-260, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957) ; United States v. Barber, 442 F.2d 517, 528 (3d Cir.1971) ; United States v. Fioravanti, 412 F.2d 407, 420 (3d Cir.1969).

14 . Cf. Levin v. Wear-Ever Aluminum, Inc., 427 F.2d 847, 848-849 (3d Cir.1970). Although the Federal Rules of Civil Procedure (see note 16 below) are inapplicable to the criminal proceeding being tried on October 5, 1973, we note that Rule 55 of the Federal Rules of Criminal Procedure provides that “each order or judgment of the court” shall be entered in the criminal docket. As stated in note 4 above, the transcript of the oral order was not filed until November 6, 1973, and there was no notation on the docket of the entry of an order even on that date.

15 . Notice of such a hearing, with a warning to the press representatives to secure counsel, to be held at the termination of the jury trial on the afternoon of October 5 could have been given at or prior to 2 P.M., when the silence order was orally stated, or at least when the motion to vacate such oral order was presented at 4 P.M. on that day. In view of the conflicting policies of the First and Sixth Amendments (see pages 5-7 above) and repeated holdings that restraints of the press may only be granted in unusual circumstances, such hearings are most important so that the district court can weigh all the circumstances of the particular case in light of the applicable constitutional policies. The district court should solicit the comments of all counsel on the proposed wording of any proposed silence order.

16 . A silence order of this type has been described as “ . . .a civil order in a criminal case . . . . ” Rendleman, supra at 131.

17 . F.R.Civ.P. 54 provides that a “ ‘judgment’ as used in these rules includes a decree and any order from which an appeal lies.” F.R. Civ.P. 58 provides that “every judgment shall be set forth on a separate document” and that “a judgment is effective only when so set forth and when entered as provided in Rule 79(a).” F.R.Civ.P. 79(a) prescribes the procedure for entry of judgment on the district court docket. That these procedural requirements must be strictly complied with was recently reaffirmed by the Supreme Court in United States v. Indrelunas, 411 U.S. 216, 220-221, 93 S.Ct. 1562, 36 L.Ed.2d 202 (1973). It has also been the consistent policy of this court that a judgment, to be effective, must both be on a separate document as required by F.R.Civ.P. 58 and be docketed as provided in F.R.Civ.P. 79(a). See Levin v. Wear-Ever Aluminum, Inc., 427 F.2d 847, 848-849 (3d Cir.1970) ; Jenkins v. United States, 325 F.2d 942, 944 n.6 (3d Cir.1963). Even prior to the 1963 amendment of Rule 58, requiring judgments “on a separate document,” failure to have a written indication in the record on the docket of a civil judgment made it ineffective. See Jenkins, supra at 944-945.

In addition to the above requirements, F.R.Civ.P. 65(d) states that “every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in its terms; [and] shall describe in reasonable detail the act or acts sought to be restrained.” Although we do not hold in this case that a silence order is an injunction within the meaning of F.R.Civ.P. 65(d), nevertheless Rule 65(d) reflects the clear policy that parties bound by restraining orders should be informed exactly what conduct is sought to be restrained.