                              In the

United States Court of Appeals
               For the Seventh Circuit

No. 10-2359

U NITED S TATES OF A MERICA,
                                                    Plaintiff-Appellee,
                                  v.

R OD B LAGOJEVICH and R OBERT B LAGOJEVICH,

                                                            Defendants.
A PPEAL OF:

     C HICAGO T RIBUNE C OMPANY, T HE N EW Y ORK T IMES
     C OMPANY, ILLINOIS P RESS A SSOCIATION, and
     ILLINOIS B ROADCASTERS A SSOCIATION


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
                No. 08 CR 888—James B. Zagel, Judge.



       A RGUED JUNE 29, 2010—D ECIDED JULY 2, 2010 —
                  A MENDED JULY 12, 2010




   Before E ASTERBROOK , Chief Judge, and W OOD and
T INDER, Circuit Judges.
  E ASTERBROOK, Chief Judge. Anticipating that the sub-
stantial attention being devoted to the criminal charges
2                                               No. 10-2359

against a former Governor of Illinois would lead the
press and public to bombard jurors with email and
instant messages that could undermine their impar-
tiality (and perhaps their equanimity), the district judge
decided that the names of jurors selected for the 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 intervene
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 counter-
part 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 motions for reconsideration in criminal cases,
despite the absence of any provision in the Rules of
Criminal Procedure).
No. 10-2359                                                3

  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 supported 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. Footnote 3 mentions the timeli-
ness issue and states that appellants disagree with the
district judge but does not adduce any argument. Nor
would argument have been permissible in that footnote,
which appears in the brief’s “Statement of the
Case”. Argument is not allowed in a brief’s recap of a
case’s procedure or 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
independent reasons an appellate victory on one does not
affect the judgment—the United States forfeited the
benefit of appellants’ forfeiture. Instead the prosecutor’s
brief met the non-argument on the merits, and at oral
argument counsel for the United States represented that
4                                                  No. 10-2359

the prosecutor is not invoking any doctrine of forfeiture
to block appellate review. The possibility of forfeiture
thus has been waived, and as the subject is not jurisdic-
tional the prosecutor’s waiver is conclusive.
  Thus freed to consider the validity of the district court’s
decision, we conclude that it was an abuse of discretion
to deem untimely the motion to intervene. True, by the
day of the hearing 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
prophesy. It would be regrettable to disappoint jurors’
legitimate expectations, but it would be even more re-
grettable to permit a district judge to frustrate any chal-
lenge 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 inter-
vened earlier, because in mid-2009 he mused in open
court about the possibility of deferring release of the
jurors’ names. That musing was reported in the Chicago
Sun-Times and other papers; the press therefore cannot
claim ignorance. Two years earlier a district 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 possi-
No. 10-2359                                               5

bility 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 rejected the motion as premature
and told the newspaper to bide its time. Intervention
not only complicates the process of adjudication (extra
parties file extra briefs and may obstruct settlements 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 intervene. 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 ques-
tion, they must participate rather than wait and see what
the court does. See Heartwood, Inc. v. United States Forest
Service, 316 F.3d 694 (7th Cir. 2003). (Charles Alan Wright,
Arthur R. Miller & Mary Kay Kane, 7C Federal Practice
and Procedure §1916 (3d ed. 2007), discusses this principle
and some exceptions, 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 chambers
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.)
6                                                No. 10-2359

There was never a public announcement 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 con-
tested decision also complicates evaluation of the merits.
Appellants contend that the press has an unqualified
right of access to jurors’ names while the trial proceeds,
even though those names have never been uttered either
in open court or in a closed session. They rely principally
on Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984)
(Press-Enterprise I), which concluded that the first amend-
ment 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 defen-
dant 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, 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 publish human-interest stories (though we don’t deni-
No. 10-2359                                               7

grate that objective) 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 district court believes that it has im-
proved 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 successful con-
clusion. The district judge fears, however, that public
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 ob-
taining the information complicates matters, however,
because there is no general constitutional “right of ac-
cess” 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 amendment 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,
8                                              No. 10-2359

443 U.S. 368, 391–93 (1979), the Court declined to
decide whether the constitutional 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 access
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. 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 pretrial motion to suppress
evidence. Perhaps voir dire (and jurors’ names) should be
treated differently after Press-Enterprise I. Perhaps other
decisions, such as Richmond Newspapers, Inc. v. Virginia,
448 U.S. 555 (1980), affect the answer—though it bears
repeating that most post-Gannett decisions deal with
information that made its way into the record of the
litigation, rather than information that has yet to be
presented in court. Cf. Seattle 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
No. 10-2359                                                9

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 incompatible
with more recent ones, until the Justices themselves
deliver 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 possibility 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 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.
10                                              No. 10-2359

   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 Communications, 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 Authority v. Beazer, 440 U.S. 568, 582–83 (1979);
Rehman v. Gonzales, 441 F.3d 506, 508–09 (7th Cir. 2006).
Sometimes constitutional adjudication 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 Supreme Court nor this
circuit has decided under what circumstances, and
after what procedures, jurors’ names may be kept confi-
dential until the trial’s end.
  But these are not subjects on which we need to make
much headway, given the presumption in favor of dis-
closure—a presumption that so far has not been over-
come, because the district court did not afford an oppor-
tunity to present evidence and did not make any
No. 10-2359                                              11

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 disclosure,
an exception that needs justification.
  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. Section 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 until 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
presided 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 proce-
dure to make the necessary finding. The Supreme Court
12                                              No. 10-2359

made this point in Waller v. Georgia, 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 ade-
     quate to support the closure.
That’s also true of orders providing for the anonymity
of jurors. Although deferred release of jurors’ names
requires less justification than does anonymity, an ap-
propriate inquiry into the facts remains necessary.
  At the hearing on the motion to intervene—the only
occasion on which the district judge formally announced
and explained 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 certainly
would tempt the jurors to engage in forbidden research
and discussion. Independent research is not allowed, and
discussion must wait until deliberations begin. These
are serious concerns. If the problem that the judge antici-
pates 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 smart phones and computers—could
No. 10-2359                                              13

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 arguments at the brief hearing on the motion to inter-
vene 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 elec-
tronically (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 unsolicited email or text messages, have those in-
structions been obeyed? If not, do any practical alterna-
tives 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 sub-
jects 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’ argu-
ments 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
14                                              No. 10-2359

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 essen-
tial—what occurred in Black but not so far in this case—
is an opportunity for the parties (including the inter-
venors) 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).
  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 con-
versations 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                                                15

   The generic risk of jurors overhearing prejudicial
   remarks, unsubstantiated 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 public 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 prosecution. The great public interest
in this prosecution may indeed create exceptional risks,
and the trial’s length may make sequestration excep-
tionally unattractive as an alternative, but these are
questions that should be explored on the record.
  To accommodate the jurors, the district judge is taking
evidence 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 outcome 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.



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