United States v. Rod Blagojevich , 612 F.3d 558 ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 10-2359
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROD BLAGOJEVICH and ROBERT BLAGOJEVICH,
Defendants.
APPEAL OF:
CHICAGO TRIBUNE COMPANY, THE NEW YORK TIMES
COMPANY, ILLINOIS PRESS ASSOCIATION, and ILLINOIS
BROADCASTERS ASSOCIATION
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 08 CR 888 — James B. Zagel, Judge.
____________________
ARGUED JUNE 29, 2010 — DECIDED JULY 2, 2010†
____________________
Before EASTERBROOK, Chief Judge, and WOOD and
TINDER, Circuit Judges.
EASTERBROOK, Chief Judge. Anticipating that the substan-
tial attention being devoted to the criminal charges against a
former Governor of Illinois would lead the press and public to
bombard jurors with e-mail and instant messages that could un-
dermine their impartiality (and perhaps their equanimity), the
district judge decided that the names of jurors selected for the
† This opinion is being released in typescript. A printed copy will follow.
No. 10-2359 Page 2
trial would not be released until the trial has ended. The Chicago
Tribune, The New York Times, and two media groups sought to
intervene to contend that the names should be released as soon
as the jurors are seated. The judge told the putative intervenors
that he had already promised the jurors that their names would
be disclosed only at the trial’s end, and that their motion to in-
tervene therefore was untimely. The judge also concluded that
the first amendment does not entitle the press to obtain these
names, which have never been uttered in court—though the
parties and their lawyers know the jurors’ names (the judge did
not order anonymity).
The Federal Rules of Criminal Procedure lack a counterpart
to Fed. R. Civ. P. 24, which allows intervention. But courts
have permitted intervention when the potential intervenor has
a legitimate interest in the outcome and cannot protect that
interest without becoming a party. See In re Associated Press, 162
F.3d 503, 507–08 (7th Cir. 1998) (allowing intervention in a
criminal prosecution and collecting other cases on the subject).
See also Fed. R. Crim. P. 57(b) (“A judge may regulate practice
in any manner consistent with federal law, these rules, and the
local rules of the district.”). Cf. United States v. Rollins, No. 09-
2293 (7th Cir. June 9, 2010) (discussing opinions that allow mo-
tions for reconsideration in criminal cases, despite the absence
of any provision in the Rules of Criminal Procedure).
The four would-be intervenors have appealed. The trial is
ongoing. Because the parties estimate that it will last for several
additional weeks, the controversy is live. And the appeal is sup-
ported by the collateral-order doctrine, because an appeal from
the final decision would be too late. By then the names will
have been disclosed to the public. The only way to vindicate a
claimed entitlement to obtain the names before the trial’s end
is an appeal before the trial’s end. See Grove Fresh Distributors,
Inc. v. Everfresh Juice Co., 24 F.3d 893, 895–96 (7th Cir. 1994).
Although the district judge gave two reasons for denying the
motion to intervene—that the motion was untimely and that
deferred disclosure is compatible with the first amendment—
appellants’ opening brief argues only the latter subject. Foot-
note 3 mentions the timeliness issue and states that appellants
disagree with the district judge but does not adduce any argu-
ment. Nor would argument have been permissible in that foot-
note, which appears in the brief’s “Statement of the Case”. Ar-
gument is not allowed in a brief’s recap of a case’s procedure or
No. 10-2359 Page 3
facts. See 520 South Michigan Avenue Associates, Ltd. v. Shannon,
549 F.3d 1119, 1124 n.4 (7th Cir. 2008); Circuit Rule 28(c). But
after the appellants forfeited any opportunity to contest one of
the two grounds on which they had lost in the district court—
and thus doomed their appeal, because if you lose for two inde-
pendent reasons an appellate victory on one does not affect the
judgment—the United States forfeited the benefit of appel-
lants’ forfeiture. Instead the prosecutor’s brief met the non-
argument on the merits, and at oral argument counsel for the
United States represented that the prosecutor is not invoking
any doctrine of forfeiture to block appellate review. The possi-
bility of forfeiture thus has been waived, and as the subject is
not jurisdictional the prosecutor’s waiver is conclusive.
Thus freed to consider the validity of the district court’s de-
cision, we conclude that it was an abuse of discretion to deem
untimely the motion to intervene. True, by the day of the hear-
ing on the motion to intervene, the judge had told the jurors
that their names would be revealed only after the trial ended.
But the motion for leave to intervene had been filed the day
before the judge gave this assurance to the jurors, and a judge
cannot render a motion untimely by an act taken afterward.
That would make the judge’s declaration a self-fulfilling proph-
esy. It would be regrettable to disappoint jurors’ legitimate ex-
pectations, but it would be even more regrettable to permit a
district judge to frustrate any challenge to his decision by giving
an assurance that he ought to have understood was premature
in light of a pending motion.
The judge thought that the press should have intervened
earlier, because in mid-2009 he mused in open court about the
possibility of deferring release of the jurors’ names. That mus-
ing was reported in the Chicago Sun-Times and other papers; the
press therefore cannot claim ignorance. Two years earlier a dis-
trict judge had deferred the release of jurors’ names in another
high-profile criminal prosecution in the Northern District of
Illinois. United States v. Black, 483 F. Supp. 2d 618 (N.D. Ill.
2007). The Tribune had to appreciate that this was a possibility
for the prosecution of a former governor. But people need not
intervene in response to musings. Had the Tribune moved to
intervene in mid-2009, the district court likely would have re-
jected the motion as premature and told the newspaper to bide
its time. Intervention not only complicates the process of adju-
dication (extra parties file extra briefs and may obstruct settle-
No. 10-2359 Page 4
ments by the original parties) but also is expensive for everyone
involved. That expense should not be incurred unless necessary.
Once the judge not only flags an issue as important but also
sets a schedule for its resolution, the time has come to inter-
vene. People potentially affected by the decision can’t sit on the
sidelines, as if intervention were a petition for rehearing. If they
receive notice that the court will hold a hearing to address a
particular question, they must participate rather than wait and
see what the court does. See Heartwood, Inc. v. United States For-
est Service, 316 F.3d 694 (7th Cir. 2003). (Charles Alan Wright,
Arthur R. Miller & Mary Kay Kane, 7C Federal Practice and Pro-
cedure §1916 (3d ed. 2007), discusses this principle and some ex-
ceptions, which we need not consider.) But the district judge in
this case did not set a schedule for deciding when jurors’ names
would be released and did not hold a hearing on that subject.
Instead he appears to have entertained submissions in cham-
bers from counsel and then reached a decision, which was not
announced to the public until the very day the judge denied the
motion to intervene. (A passing statement in open court two
weeks earlier is to the same effect, though no formal decision
was entered on the docket.) There was never a public an-
nouncement identifying an issue and specifying a schedule for
its resolution. The motion to intervene therefore was timely.
The informality of the procedure that led to the contested
decision also complicates evaluation of the merits. Appellants
contend that the press has an unqualified right of access to ju-
rors’ names while the trial proceeds, even though those names
have never been uttered either in open court or in a closed ses-
sion. They rely principally on Press-Enterprise Co. v. Superior
Court, 464 U.S. 501 (1984) (Press-Enterprise I), which concluded
that the first amendment makes voir dire presumptively open
to the public, and the divided decision in United States v. Wecht,
537 F.3d 222 (3d Cir. 2008), which extended this approach to
jurors’ names even when not mentioned during the voir dire.
Cf. Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) (Press-
Enterprise II) (preliminary hearings are presumptively open). But
no one contends (or should contend) that jurors’ names always
must be released. Anonymous juries are permissible when the
jurors’ safety would be jeopardized by public knowledge, or the
defendant has attempted to bribe or intimidate witnesses or
jurors. See, e.g., United States v. Ochoa-Vasquez, 428 F.3d 1015,
1031–38 (11th Cir. 2005); United States v. Edmond, 52 F.3d 1080,
No. 10-2359 Page 5
1089–94 (D.C. Cir. 1995); United States v. Barnes, 604 F.2d 121,
140–43 (2d Cir. 1979). The right question is not whether names
may be kept secret, or disclosure deferred, but what justifies
such a decision.
Appellants seek access to the jurors’ names not only to pub-
lish human-interest stories (though we don’t denigrate that ob-
jective) but also because they want to learn whether the seated
jurors are suitable decision-makers. Investigations of the jurors
in the trial of Governor Blagojevich’s predecessor (both in that
office and at the defendants’ table) revealed that several had
lied on their questionnaires and had disqualifying convictions
or otherwise might have been subject to challenge for cause.
The district court replaced two of the jurors after deliberations
had begun. See United States v. Warner, 498 F.3d 666, 684–90
(7th Cir. 2007). No one fancies a repeat performance. The dis-
trict court believes that it has improved the vetting process; the
press wants to check, and to do so before it is too late to seat
alternate jurors (if necessary) so that the trial can reach a suc-
cessful conclusion. The district judge fears, however, that pub-
lic knowledge of the jurors’ identities will lead to events that
undermine the impartiality of the persons now serving and
would discourage others from agreeing to serve in future trials.
Legitimate interests are on both sides.
Relying on the first amendment as the means of obtaining
the information complicates matters, however, because there is
no general constitutional “right of access” to information that a
governmental official knows but has not released to the public.
See Los Angeles Police Department v. United Reporting Publishing
Corp., 528 U.S. 32, 40 (1999) (no right under the first amend-
ment to addresses of persons who have been arrested by the
police); Houchins v. KQED, Inc., 438 U.S. 1 (1978) (no right under
the first amendment to enter a county jail, interview inmates,
and take pictures). In Gannett Co. v. DePasquale, 443 U.S. 368,
391–93 (1979), the Court declined to decide whether the consti-
tutional approach governing information known to officials of
the executive branch should be used for information known to
the judiciary, or whether there should be a specific right of ac-
cess under the first amendment for some information known to
judges in criminal prosecutions. Instead Gannett held that, if
there is a right of access, disclosure at the end of the trial gives
the press everything to which it is constitutionally entitled.
No. 10-2359 Page 6
Appellants’ brief (and reply brief) in this court do not mention
Gannett. Neither did the majority in Wecht.
We do not say that Gannett necessarily resolves the question
whether deferred release of jurors’ names is permissible. Gannett
dealt with a claim of access to a hearing on a defendant’s pre-
trial motion to suppress evidence. Perhaps voir dire (and jurors’
names) should be treated differently after Press-Enterprise I. Per-
haps other decisions, such as Richmond Newspapers, Inc. v. Vir-
ginia, 448 U.S. 555 (1980), affect the answer—though it bears
repeating that most post-Gannett decisions deal with informa-
tion that made its way into the record of the litigation, rather
than information that has yet to be presented in court. Cf. Seat-
tle Times Co. v. Rhinehart, 467 U.S. 20 (1984) (a protective order
forbidding the release of information learned in discovery, and
not yet admitted at trial, is compatible with the first amend-
ment). How Press-Enterprise I and Seattle Times affect Gannett’s
conclusion about deferred access to information known to the
judge and litigants, but not uttered in a courtroom, is a question
that has not been analyzed—not by the Supreme Court, not by
the majority in Wecht, and not by the litigants in this appeal.
And the Supreme Court often reminds other judges that they
must follow all of its decisions, even those that seem incom-
patible with more recent ones, until the Justices themselves de-
liver the coup de grâce. Eberhart v. United States, 546 U.S. 12
(2005); State Oil Co. v. Khan, 522 U.S. 3, 20 (1997).
There is another potential complication in analyzing this
matter through the lens of the first amendment. The jurors’
names went unmentioned during voir dire not because of the
judge’s decision but because of §10(a) of the district court’s plan
for implementing the Jury Selection and Service Act. (We
quote from this below.) In the Northern District of Illinois, the
names of persons considered for jury service and not seated are
never revealed in public; all references during voir dire there-
fore are to numbers. The jurors chosen for service at the end of
voir dire also were called by number. Why numbers then, rather
than names? One possibility is that the parties treated the
judge’s decision (which they may have learned in chambers) as
an informal gag order, preventing them from speaking the
names in court or to reporters out of court. But another possi-
bility is that the litigants themselves think that the jurors’
names should be withheld until the trial is over. That is the
prosecutor’s view; whether it is defendants’ view we do not
No. 10-2359 Page 7
know. (Defendants elected not to participate in this appeal.)
This makes it hard to choose whether we should treat the
judge’s decision as a partial closure of voir dire covered by Press-
Enterprise I or as a right-of-access situation more like KQED and
potentially Gannett.
Instead of starting with the first amendment, we think it
best to start with statutes and the common law—for there is a
common-law right of access by the public to information that
affects the resolution of federal suits. See Nixon v. Warner Com-
munications, Inc., 435 U.S. 589, 597–99 (1978); In re Reporters
Committee for Freedom of the Press, 773 F.2d 1325, 1331–33 (D.C. Cir.
1985) (Scalia, J.); Union Oil Co. of California v. Leavell, 220 F.3d
562, 567–68 (7th Cir. 2000); Baxter International, Inc. v. Abbott
Laboratories, 297 F.3d 544 (7th Cir. 2002). A court should never
begin with the Constitution. See, e.g., New York Transit Author-
ity v. Beazer, 440 U.S. 568, 582–83 (1979); Rehman v. Gonzales, 441
F.3d 506, 508–09 (7th Cir. 2006). Sometimes constitutional ad-
judication is essential, as when a case comes to the Supreme
Court from a state court and only federal issues are open to
consideration. That was the situation in Press-Enterprise I and II.
But federal courts may regulate their own procedures and
should do so sensibly. Only if a litigant believes that the federal
judiciary’s understanding of the best way to decide about the
time at which to release jurors’ names violates the Constitution
would it be appropriate to broach that topic. Neither the Su-
preme Court nor this circuit has decided under what circum-
stances, and after what procedures, jurors’ names may be kept
confidential until the trial’s end.
But these are not subjects on which we need to make much
headway, given the presumption in favor of disclosure—a pre-
sumption that so far has not been overcome, because the dis-
trict court did not afford an opportunity to present evidence
and did not make any findings of fact. That presumption comes
not only from the common-law tradition of open litigation but
also from the Jury Selection and Service Act, 28 U.S.C. §§ 1861–
78. Section 1863 says that each district court must adopt a plan
for jury selection, and §1863(b)(7) provides that each plan must
“fix the time when the names drawn from the qualified jury
wheel shall be disclosed to parties and to the public.” (Emphasis
added.) The answers “never” or “after trial” are possible under
this language but constitute an exception to the norm of disclo-
sure, an exception that needs justification.
No. 10-2359 Page 8
Section 1863(b)(7) adds: “If the plan permits these names to
be made public, it may nevertheless permit the chief judge of
the district court, or such other district court judge as the plan
may provide, to keep these names confidential in any case
where the interests of justice so require.” The plan adopted by
the Northern District of Illinois contemplates that the names
of venire members who are questioned but excused will not be
revealed to the public, but that the names of the seated jurors
and alternates will be, as soon as they are sworn to service. Sec-
tion 10(a) reads: “No person shall make public or disclose to any
person, unless so ordered by a judge of this Court, the names
drawn from the Qualified Jury Wheel to serve in this Court un-
til the first day of the jurors’ term of service. Any judge of this
Court may order that the names of jurors involved in a trial pre-
sided over by that judge remain confidential if the interests of
justice so require.” There’s the “interests of justice” exception,
which implies a need for some procedure to make the necessary
finding. The Supreme Court made this point in Waller v. Geor-
gia, 467 U.S. 39, 48 (1984), when rejecting an argument that a
pretrial hearing could be closed just as a matter of discretion:
[T]he party seeking to close the hearing must advance an overriding
interest that is likely to be prejudiced, the closure must be no
broader than necessary to protect that interest, the trial court must
consider reasonable alternatives to closing the proceeding, and it
must make findings adequate to support the closure.
That’s also true of orders providing for the anonymity of jurors.
Although deferred release of jurors’ names requires less justifi-
cation than does anonymity, an appropriate inquiry into the
facts remains necessary.
At the hearing on the motion to intervene—the only occa-
sion on which the district judge formally announced and ex-
plained his decision—the judge expressed concern that jurors
would be peppered with email and instant-message queries in
this high-visibility case. These incoming messages may be
viewed as harassment (the anticipation of which would make it
more difficult to find people willing to serve as jurors) and cer-
tainly would tempt the jurors to engage in forbidden research
and discussion. Independent research is not allowed, and dis-
cussion must wait until deliberations begin. These are serious
concerns. If the problem that the judge anticipates has come to
pass in other high-visibility cases, then something must be
done. Some alternatives to (temporary) anonymity—
sequestering the jurors or requiring them to surrender their
No. 10-2359 Page 9
smart phones and computers—could be worse for the jurors
and the litigants, even though they might be preferable to the
press.
But because the judge acted without evidence, and the ar-
guments at the brief hearing on the motion to intervene post-
dated the judge’s decision (which had been conveyed to jurors
the previous day), we do not know the answers to some vital
questions. Have jurors in other publicized cases been pestered
electronically (email, instant messaging, or phone calls), or by
reporters camped out on their doorsteps? If judges in other
high-visibility cases have told the jurors to ignore any unsolic-
ited email or text messages, have those instructions been
obeyed? If not, do any practical alternatives to sequestration
remain? The Department of Justice, and the lawyers who repre-
sent the press, may be able to present evidence and arguments
that would be helpful in addressing those issues. Findings of
fact made after an appropriate hearing must be respected on
appeal unless clearly erroneous. But no evidence was taken, no
argument entertained, no alternatives considered, and no find-
ings made before this decision was announced to the jurors.
Instead of pressing on to construct a framework for hear-
ings, findings, and rules for decision, we think it best to ensure
that a hearing is held so that the justification for and alterna-
tives to the delayed release can be addressed. Once we have a
better basis for understanding not only the risks of releasing the
names before the trial’s end, but also other options (and the
risk that alternatives such as cautionary instructions will fail),
we then can ask whether the district judge abused his discretion
in thinking that the presumption in favor of releasing jurors’
names as soon as they are seated has been overcome.
When considering this subject, the district judge should
take account of the Supreme Court’s observation in Presley v.
Georgia, 130 S. Ct. 721, 724 (2010), that, before closing any part
of the criminal process to the public (the part at issue in Presley
was voir dire), a judge not only must make the findings required
by Waller but also must consider alternatives to secrecy,
whether or not the lawyers propose some. The judge in Presley
had expressed concern that, if members of the public were in
the courtroom, they might conduct clandestine conversations
with members of the venire or make remarks that would cause
prejudice even if the venireperson did not reply. To this the
Justices replied:
No. 10-2359 Page 10
The generic risk of jurors overhearing prejudicial remarks, unsub-
stantiated by any specific threat or incident, is inherent whenever
members of the public are present during the selection of jurors. If
broad concerns of this sort were sufficient to override a defendant's
constitutional right to a public trial, a court could exclude the pub-
lic from jury selection almost as a matter of course.
130 S. Ct. at 725. Likewise a judge must find some unusual risk to
justify keeping jurors’ names confidential; it is not enough to
point to possibilities that are present in every criminal prosecu-
tion. The great public interest in this prosecution may indeed
create exceptional risks, and the trial’s length may make seques-
tration exceptionally unattractive as an alternative, but these
are questions that should be explored on the record.
To accommodate the jurors, the district judge is taking evi-
dence only four days a week. It therefore should be possible to
hold a prompt hearing without interrupting the trial. Nothing
in this opinion should be read to presage the appropriate out-
come of that hearing, or of any later appeal should one be filed.
The district judge’s deferred-disclosure order is vacated, and
the case is remanded with instructions to grant the motion to
intervene and hold proceedings consistent with this opinion.
The jurors’ names will remain confidential, however, until a
hearing has been held and a new decision rendered.