In the
United States Court of Appeals
For the Seventh Circuit

No. 99-2301

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

WILLIAM D. LADD, RONALD D. LOWDER
and JAMES R. BERGER,

Defendants-Appellees.



APPEAL OF: ASSOCIATED PRESS, CHICAGO
TRIBUNE COMPANY, COPLEY PRESS,
INCORPORATED, et al.



Appeal from the United States District Court
for the Central District of Illinois.
No. 96 CR 30036--Richard Mills, Judge.


ARGUED DECEMBER 7, 1999--DECIDED JUNE 27, 2000




  Before EASTERBROOK, RIPPLE and DIANE P.
WOOD, Circuit Judges.

  RIPPLE, Circuit Judge. This case comes
to us as a successive appeal to our
earlier decision, In re Associated Press,
162 F.3d 503 (7th Cir. 1998). In that
decision, we held that media
organizations covering the criminal trial
of James Berger could intervene in the
criminal proceedings for the limited
purpose of seeking documents sealed by
the district court. On remand, the
district court unsealed numerous
documents, but required that the identity
of unindicted coconspirators be kept
under seal. Statements of these
individuals had been admitted at Berger’s
trial pursuant to the hearsay exception
for unindicted coconspirators. In this
appeal, we must decide whether the
identity of those unindicted
coconspirators should be released to the
public. For the reasons set forth in the
following opinion, we reverse the
judgment of the district court and remand
the case for further proceedings.

I
BACKGROUND

  On August 23, 1996, Management Services
of Illinois and four individual
defendants were indicted on 25 counts
involving bank fraud, money laundering,
and a scheme to defraud the Illinois
Department of Public Aid. On October 24,
1996, the grand jury issued a superseding
indictment that added James R. Berger as
a defendant to the charges relating to
the Public Aid scheme. On June 23, 1997,
the district court severed Berger’s case.
The other defendants went to trial during
the summer of 1997. Berger’s trial began
in November 1997.

  At Berger’s trial, the Government sought
to introduce the statements of alleged
coconspirators pursuant to Federal Rule
of Evidence 801(d)(2)(E), the hearsay
exception for coconspirator
statements./1 The district court
admitted conditionally the statements
"subject to the Government’s eventual
proof of the foundational elements at
trial." R.374 at 3.

  Various news organizations covering the
trial ("the Press") sought access to
numerous documents introduced at trial.
The district court initially denied the
Press’ motion to intervene. We reversed
and remanded with instructions to allow
the Press to intervene. See Associated
Press, 162 F.3d at 508-09. The Press then
sought access both to sealed documents
and to information regarding the
videotaped deposition of Illinois
Governor James Edgar. See id. at 509-13.
In our opinion remanding the case, we
wrote:

[W]e believe that in this case the
appropriate course at this juncture is
that the district court articulate its
reasons for denying access to the
documents that are under seal. A careful
examination by the district court and an
explanation adequate to permit thorough
appellate review is especially warranted
in this case because the defendant in the
underlying criminal action has maintained
that certain material ought to be kept
under seal because it was not made part
of the public record.

Id. at 510 (citation omitted). To allow
for meaningful appellate review, we also
asked the district court to describe the
documents and to provide the reasons why
they were sealed. See id.

  In the course of the proceedings on
remand, the court offered two reasons for
initially having sealed the documents.
See United States v. Martin, 38 F.
Supp.2d 698 (C.D. Ill. 1999). First, it
believed that, because of concerns over
publicity during the trial, non-
disclosure was necessary to protect the
defendants’ right to a fair trial.
Second, the court believed that non-
disclosure was required to ensure that
the Government’s ongoing investigation
was not compromised. Because neither of
these reasons justified keeping documents
under seal after trial, the district
court later unsealed almost all of the
documents.

  The court decided, however, to keep
under seal the names of five unindicted
coconspirators whose testimony was
admitted at trial. Noting that it had
made a public explanation of why it had
admitted their testimony, the district
court took the view that disclosing the
names of the unindicted coconspirators
would not promote an understanding of or
confidence in the criminal justice
system. It further said that the only
reason for disclosing the identities was
to stigmatize the individuals. The
district court concluded that the
individuals had a high privacy interest
because they would be affected adversely
by the public’s knowledge that they had
been named as coconspirators in the
indictment, but would have no opportunity
to clear their names at trial. In the
court’s view, the damage to their
reputations would be irreparable.

II
DISCUSSION
A.

  Central to our decision today--and long
embedded in our case law and indeed in
that of the Supreme Court--is the strong
presumption that all trial proceedings
should be subject to scrutiny by the
public. As the Supreme Court has written:
[A] trial courtroom also is a public
place where the people generally--and
representatives of the media-- have a
right to be present, and where their
presence historically has been thought to
enhance the integrity and quality of what
takes place.

Richmond Newspapers v. Virginia, 448 U.S.
555, 578 (1980). Again in Press-
Enterprise Co. v. Superior Court, 464
U.S. 501, 509 (1984), the Court wrote
that the public also presumptively has a
right of access to the records of
judicial proceedings. See also Smith v.
United States District Court Officers,
203 F.3d 440, 441 (7th Cir. 2000)
[hereinafter Court Officers]. We
emphasized the importance of this
presumption in our earlier opinion in
this case. See Associated Press, 162 F.3d
at 506. This presumption is rebuttable to
preserve "higher values" so long as the
suppression is narrowly tailored to
preserving those values. Id.; see also
Press-Enterprise, 464 U.S. at 510; Grove
Fresh Distrib., Inc. v. Everfresh Juice
Co., 24 F.3d 893, 897 (7th Cir. 1994).

  The Press seeks access to documents that
identify by name unindicted
coconspirators whose hearsay statements
were considered as evidence during trial.
We have no doubt that there is an
important public interest in revealing
this information. The source of evidence
admitted at trial and the circumstances
surrounding its admittance are important
components of the judicial proceedings
and crucial to an assessment of the
fairness and the integrity of the
judicial proceedings. See Napue v.
Illinois, 360 U.S. 264, 269 (1959);
United States v. Kaufmann, 783 F.2d 708,
710 (7th Cir. 1986) (quoting Napue).
Therefore, when the hearsay statement of
an unindicted coconspirator is entered
into evidence, it is a very different
situation than one in which the alleged
coconspirator is identified by the
Government during a preliminary phase of
the case. We therefore find ourselves in
respectful disagreement with our
colleague in the district court who took
the view that the situation before us
ought to be controlled by the decision of
the Court of Appeals for the Third
Circuit in United States v. Smith, 776
F.2d 1104 (3d Cir. 1985) [hereinafter
Smith].
  In Smith, the court refused to allow the
release of the names of individuals
identified as potential coconspirators on
a bill of particulars. It concluded that
identification by the Government created
the chance of career-ending harm to the
individuals on the list, and that those
individuals, some of whom might be
entirely innocent, would have no
opportunity to vindicate themselves. See
id. at 1113-14. In that case, the
Government had provided no factual
context for its inclusion of particular
names on the list. See id. at 1113. Judge
Mansmann, concurring in the judgment, em
phasized that the Government had admitted
that it had "used a broad brush" in
deciding to include names on the list
"for the tactical purpose of not limiting
the evidence it could produce at trial."
Id. at 1116-17 (Mansmann, J.,
concurring).

  We need not decide definitively the
correctness of the holding in Smith. It
is sufficient to point out that the situ
ation there was quite different than the
one before us. Here the hearsay
statements of the coconspirators were
admitted into evidence. For coconspirator
statements to be admitted pursuant to
Rule 801(d)(2)(E), the Government must
prove by a preponderance of the evidence
that a conspiracy existed, that both the
declarant and the defendant were members
of the conspiracy, and that the
statements were made in the course and in
furtherance of the conspiracy. See United
States v. Mojica, 185 F.3d 780, 788 (7th
Cir.), cert. denied, 120 S. Ct. 515
(1999); United States v. Powers, 75 F.3d
335, 339 (7th Cir. 1996). The district
court, in admitting the statements, found
that those requirements had been met. The
status of coconspirator was, therefore,
grounded in an evidentiary basis far more
solid than the assertion of the United
States Attorney./2

  The Third Circuit held in Smith that
names of the unindicted coconspirators
could be withheld because otherwise it
was "virtually certain that serious
injury [to reputation] will be
inflicted." Smith, 776 F.2d at 1114.
Here, however, where there is a more
reliable basis for finding that the
individuals were indeed coconspirators,
that concern must yield to the public’s
right to know the sources of evidence
considered by the jury at trial pursuant
to the coconspirator exception to the
hearsay rule.

  The Government also notes that it has
released to the public an explanation of
how the statements of unindicted
coconspirators were used at trial. It
argues that, on account of this
statement, the public may have confidence
in the process by which the statements
were used and that, consequently, there
is no public interest in releasing the
actual identity of the unindicted
coconspirators. We cannot agree. The
source of admitted testimony is essential
to determining its reliability, and it
has long been recognized that the
reliability of a given witness’
statements may be determinative of the
outcome of a particular case. See Napue,
360 U.S. at 269; Kaufmann, 783 F.2d at
710 (quoting Napue).
 The identity of a witness whose
statement was admitted at trial is a very
important factor in assessing the
integrity of the proceedings. "To hide
from the public eye entire proceedings,
or even particular documents or testimony
forming a basis for judicial action that
may directly and significantly affect
public interests, would be contrary to
the premises underlying a free,
democratic society." City of Hartford v.
Chase, 942 F.2d 130, 137 (2d Cir. 1991)
(Pratt, J., concurring).

B.

  Given the presumption in favor of public
access to judicial proceedings and the
particular importance of the public’s
right to assess the sources of evidence
and the circumstances under which it is
admitted, we must conclude that these
considerations outweigh any privacy
interest that might be asserted in favor
of keeping this information secret.

  In the Government’s view, by virtue of
the district court’s ruling on the
admissibility of the statements under the
coconspirator exception to the hearsay
rule, the unindicted coconspirators now
bear the stigma of having been so
identified not only by the United States
Attorneys’ office, but also by the
district court. Therefore, argues the
Government, the privacy interest of the
unindicted coconspirators is greater in
this case than in Smith. See Martin, 38
F. Supp. 2d at 704; Appellee’s Br. at 15-
16. We look at the matter differently. As
we have just pointed out, before the
district court, the Government was
required to demonstrate, by a
preponderance of the evidence, that the
individuals, although unindicted, were in
fact members of the conspiracy. This
process identifies coconspirators to a
degree of certainty sufficient to permit
the consideration of their statements
despite the statements’ otherwise
disabling characteristic as hearsay. This
same judicial scrutiny also provides a
reasonable degree of certainty that the
individuals are in fact coconspirators.
  Indeed, we believe that our analysis is
compatible with the essential holding of
Smith. The animating concern of the Third
Circuit’s opinion was to avoid tarnishing
the reputations of individuals who had
been named coconspirators by the
Government without any judicial check on
the factual basis for the imposition of
such a label. See Smith, 776 F.2d at 1114
(stating that its concern was with the
potential injury to "innocent
individuals")./3 Here, the concern of
our colleagues in the Third Circuit is
squarely met by the determination of the
district court that there was sufficient
reason to believe that these individuals
were coconspirators to justify the
admission of their hearsay
statements.Although concern for the
reputation of the unindicted
coconspirators is not entirely eradicated
by the determination of the district
court, that concern is overcome by the
important countervailing public interest
in disclosure of the trial proceedings.

Conclusion

  Because the hearsay statements of the
unindicted coconspirators were admitted
into evidence, the public interest in
disclosure outweighs the privacy
interests of the coconspirators. Release
of the identities of the unindicted
coconspirators is not for the
gratification of private spite or the
promotion of scandal. See Nixon v. Warner
Communications, Inc., 435 U.S. 589, 598
(1978). Rather, it is to ensure the
integrity and quality of the court’s
proceedings. See Richmond Newspapers, 448
U.S. at 578. Accordingly, on remand, the
district court must release to the public
the names of all unindicted
coconspirators whose statements were
admitted into evidence pursuant to Rule
801(d)(2)(E) at James Berger’s trial.

  For the foregoing reasons, the judgment
of the district court is reversed, and
the case is remanded for proceedings in
conformity with this opinion.

REVERSED and REMANDED


/1 A statement is not hearsay if--

(2) The statement is offered against a party and
is . . . (E) a statement by a coconspirator of a
party during the course and in furtherance of the
conspiracy.

Fed. R. Evid. 801(d).

/2 Our case is also qualitatively different from the
situation in United States v. Anderson, 799 F.2d
1438 (11th Cir. 1986). There, the Eleventh Cir-
cuit refused the request of the Tampa Tribune for
access to a list of unindicted coconspirators
that was attached to a discovered document. The
court held that documents produced in discovery
are not accessible to the public.

/3 The Third Circuit’s holding has been interpreted
this way by other courts. See Times Mirror Co. v.
United States, 873 F.2d 1210, 1216 (9th Cir.
1989) (applying the reasoning of Smith to search
warrants because "[p]ersons who prove to be
innocent are frequently the subjects of govern-
ment investigations"); United States v. Gonzalez,
927 F. Supp. 768, 776 (D. Del. 1996) (describing
the critical issue in Smith as the "danger that
disclosing names of unindicted co-conspirators
would cause serious injury to innocent third
parties").
