                  United States Court of Appeals
                               For the Seventh Circuit
                               Chicago, Illinois 60604
                                     July 12, 2010

                                       Before

                          FRANK H. EASTERBROOK , Chief Judge

                          DIANE P. WOOD, Circuit Judge

                          JOHN DANIEL TINDER, Circuit Judge


No. 10-2359

UNITED STATES OF AMERICA,
      Plaintiff-Appellee,                             Appeal from the United
                                                      States District Court for the
             v.                                       Northern District of Illinois,
                                                      Eastern Division.
ROD BLAGOJEVICH and ROBERT BLAGOJEVICH,
      Defendants.                                     No. 08 CR 888
                                                      James B. Zagel, Judge.
APPEAL OF:

      C HICAGO TRIBUNE C OMPANY, THE NEW YORK
      TIMES C OMPANY, ILLINOIS PRESS ASSOCIATION,
      and ILLINOIS BROADCASTERS ASSOCIATION


                                        Order

      The opinion issued in this appeal is amended by replacing the first two full
paragraphs on page 9 of the typescript opinion with the following three paragraphs:

              But because the judge acted without evidence, and the arguments 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 potentially important 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
No. 10-2359                                                                 Page 2

       have told the jurors to ignore any unsolicited 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
       represent 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
       findings made before this decision was announced to the jurors.

             What evidence the judge must consider depends on what the parties
       submit. We do not imply that any of the subjects mentioned above is
       indispensable to a decision. In Black the parties chose not to present any
       evidence, and the court then decided in light of the parties’ arguments and the
       judge’s experience with jurors’ concerns and behavior. The district judge in this
       case has referred elliptically to efforts to contact him by email and in other
       ways; perhaps putting details on the record would help to make concrete some
       potential effects of disclosing jurors’ names while the trial is under way. What is
       essential—what occurred in Black but not so far in this case—is an opportunity
       for the parties (including the intervenors) to make their views known in detail,
       followed by a considered decision that includes an explanation why alternatives
       to delayed release of the jurors’ names would be unsatisfactory.

             Instead of constructing a framework for hearings, findings, and rules of
       decision, we think it best to wait until a hearing has been held. We do not decide
       today when it is appropriate to delay the release of jurors’ names. That subject
       will not be ripe until the district judge has provided 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).
