North Jersey Media Group Inc. v. United States, 836 F.3d 421 (3d Cir. 2016). The 2013 closure of lanes at the George Washington Bridge, which led to extraordinary traffic backups in Fort Lee, has taken on the label of “Bridgegate” due to the involvement in the closure of persons highly placed in the Christie administration. William Baroni and Bridget Kelly are about to go on trial on criminal charges in connection with Bridgegate.
The United States Government issued a letter to the defendants, in response to their demand for a bill of particulars, listing unidentified co-conspirators in Bridgegate. The Government did not file the letter, but did provide it directly to the District Court, in order to maintain its secrecy.
Media outlets moved to intervene and have that letter made public, but one of the persons named in that letter intervened and sought to prevent the letter from being disclosed. The District Court ruled that the letter was to be made public, but today the Third Circuit reversed that decision. Judge Jordan wrote the panel’s opinion.
Judge Jordan noted that “[a]lthough the appeal arises out of a matter of high public interest, the issue presented is basic and undramatic. We must decide whether the letter is more akin to a bill of particulars or to a discovery disclosure in a criminal case. That distinction is dispositive, because the former is subject to a recognized right of public access, while the latter has historically been kept from public view.” The court held that the letter was more like discovery. Therefore, it could not be made public. Though a decision to seal a document related to judicial proceedings is normally reviewed only for abuse of discretion, a First Amendment-based claim to access such as this was subject to “substantially broader review.”
The only prior Third Circuit case that discussed whether a document was a bill of particulars or discovery was United States v. Smith, 776 F.2d 1104 (3d Cir. 1985). There, the court found that the document in question was a bill of particulars. Here, however, Judge Jordan cited four reasons why the letter was not a bill of particulars.
First, the Government “did not treat it as a bill of particulars.” Though the Government did not state explicitly when it provided the letter that it was being provided as discovery, the Government did object to defendants’ request for a bill of particulars and then opposed, “in great detail,” defendants’ motion for a bill of particulars.
Second, the District Court did not treat the letter as a bill of particulars until the media parties sought to join the fray. “The Court did not characterize the Conspirator Letter as a bill of particulars at the time it was turned over, and never ordered the government to file a bill of particulars, as occurred in Smith.”
Third, defendants too did not treat the letter as a bill of particulars. Judge Jordan observed that had they viewed the letter as a bill of particulars, defendants would have insisted that it be filed with the Clerk. But it never was filed.
Finally, the letter did not fulfill the purpose of a bill of particulars, which is to supplement an indictment when it is “too vague and indefinite … to inform the defendant of the nature of the charges brought against him.” This indictment was very detailed, and even the media intervenors conceded that.
The finding that the letter was not a bill of particulars doomed the media’s First Amendment-based claim to access. The legal test is a two-pronged one, the first of which is whether the place, process, or material at issue “have historically been open to the press.” Judge Jordan explained that discovery materials normally are not public, so this first prong of the test was not satisfied. He went on to observe that the second prong– “whether public access plays a significant positive role in the functioning of the particular process in question”– also was not met here. The letter was not necessary to make the indictment valid, and it had no evidentiary significance.
Judge Jordan also rebuffed the media intervenors’ common law right of access claim, noting that the scope of review of a common law right of access claim was for abuse of discretion, “though our review of the legal principles applied is plenary.” Filing a document often makes it a “judicial record” subject to the common law right of access, but not always. In any event, the letter here was never filed, merely sent to the District Court judge. And the fact that it was discovery meant that no common law right of access attached.
Judge Jordan concluded by observing that “[t]he time may come, perhaps at trial, when the information in the Conspirator Letter ought to be made public, but that time is not here yet.” We will see what happens next.