adjudication, but on the other hand indicates that it would seek immediate review of adverse rulings made at trial. Any appeal in the midst of trial would of necessity severely disrupt the proceedings, a result this Court has continually sought to avoid.
II. SUBMISSION OF STATEMENTS DELETED FROM MATERIALS PROVIDED TO THE COURT.
As noted above, CBS has submitted materials relating to three separate conversations between Mike Wallace and individuals on the government's witness list. Each of these conversations includes unidentified persons, apparently franchisees other than those on the government's witness list. Although these persons appear to have participated actively in the dialogue, CBS has deleted their statements from the tapes and transcripts submitted to the Court. Thus, the materials include numerous statements by the prospective witness or witnesses that do not follow questioning by Wallace but rather the deleted material represented by asterisks. That is, it appears that many answers on the transcripts are in response to statements by other interviewees which have been deleted. In many of these instances, the Court can only speculate as to the course of the conversation. The numerous references in the transcripts to "cross-talk" and the fact that many of Mr. Wallace's questions are intentionally open-ended that is, so that any of the individuals present may volunteer an answer make clear that the dialogue was conducted between the interviewees as well as with the interviewer. The statements of the unidentified interviewees are, therefore, necessary for a complete understanding of the witnesses' statements.
CBS has stated its position that it does not intend to comply with an order of this Court compelling the production of the remainder of the statements made at the relevant interviews. It contends that, "such non-witness statements, not being evidentiary, are not subject to in camera inspection under Rule 17(c) nor should they be submitted to the Court since this would necessarily breach the qualified First Amendment privilege afforded to CBS with respect to those materials." CBS's letter of Mar. 20, 1981, at 2. However, CBS suggests that it would be willing to forego its position that the unredacted statements are not produceable if, but only if, the Court is willing to accede to CBS's position that such statements may not be turned over to the defendants until after the witnesses testify and then only under limited circumstances.
The power of this Court to require CBS to produce for in camera review the statements of individuals on the government's witness list is now beyond dispute. United States v. Cuthbertson, supra. Equally clear is the Court's power to order production of the unredacted statements should it determine that they are necessary to an understanding of what the Court already possesses.
At trial the Court has the discretion to permit the introduction of otherwise inadmissible evidence for the limited purpose of placing excerpted evidence in its proper context. See F.R.E. 106. For example, the Second Circuit, in a long line of cases, has held that otherwise inadmissible statements by a third party on a tape recording may be introduced for the limited purpose of explaining to the jury admissions on the tape by a defendant. United States v. Murray, 618 F.2d 892, 900-01 (2nd Cir. 1980); United States v. Lubrano, 529 F.2d 633 (2nd Cir. 1975), cert. denied, 429 U.S. 818, 97 S. Ct. 61, 50 L. Ed. 2d 78 (1976); see also United States v. Lemonakis, 158 U.S. App. D.C. 162, 485 F.2d 941, 947-50 (D.C.Cir.1973), cert. denied, 415 U.S. 989, 94 S. Ct. 1586, 39 L. Ed. 2d 885, 94 S. Ct. 1587 (1974). Even if, as CBS contends, the sole purpose of the in camera review is to determine if statements may be admissible at trial, the judge like the jury, is entitled to a complete record in order to decipher the statements and make an independent and intelligent decision.
CBS relies on but a single case, United States v. Harris, 542 F.2d 1283, 1293 (7th Cir. 1976), cert. denied, 430 U.S. 934, 97 S. Ct. 1558, 51 L. Ed. 2d 779 (1977), for its argument that the statements by non-witnesses are absolutely protected. In Harris, the prosecution provided the defense, pursuant to its obligations under the Jencks Act, 18 U.S.C. § 3500, with statements by a witness in a prior joint interview, but did not provide statements by the other person present at that interview. On appeal, the defendants argued that the trial court's refusal to inspect the complete, unedited documents in camera constituted an abuse of discretion. The court of appeals rejected this argument:
If separate reports had been prepared on the portions of the interview dealing with each person, there could be little question that the Government would only be required to produce the report pertaining to the witness. The Act contemplates that the Government will make this type of selection. We find no significant difference between the Government making this type of selection and the selection the Government made in this case.... The problem presented in this case is not a matter of the Government refusing to submit materials in the face of a court order; the court expressed no interest in seeing the materials.
Id. at 1293. We interpret the court's opinion to mean only that a defendant has no absolute right to an in camera inspection by the trial court of the complete records of all interviews in which more than one person was questioned. Indeed, there was nothing in Harris to suggest any problem of understanding the context of the interviews without the deleted materials. At most, Harris stands for the proposition that whether or not to view the statements of a nonwitness when included with those of a witness is within the discretion of the court.
In this case, the Court finds that it is unable to perform the functions required of it without access to the remainder of the conversations. It is simply impossible for the Court to decide that certain portions of the submitted materials should or should not be turned over to the defendants during the trial without being able to place the remarks within the context of the entire conversation.
CBS contends that it, and not the Court, is entitled to make such "editorial" judgments. The Court has no guarantee that those determinations would be made in the interests of all the parties to this dispute and not solely in the interests of CBS, if CBS, the litigant, were to be the judge. From the beginning, the posture of CBS in this matter has been purely adversarial. It first asserted an absolute privilege that would have barred the turning over of any documents whatsoever; it then asserted a qualified privilege against turning over documents for in camera review. Now that the Court of Appeals has rejected those positions, CBS conditions the turning over of the remainder of the statements on the willingness of this Court to conform to CBS's view on another substantive question. With this background in mind, this Court cannot and will not rely on the ex parte decisions of an interested party as to the propriety of the editing.
Thus, the Court orders that CBS turn over forthwith the remainder of the tapes and transcripts of those conversations involving individuals on the government's witness list. The Court will not bargain with CBS by agreeing to modify its position on the separate issue of whether these materials will be turned over to the defense if they are found to be exculpatory irrespective of their eventual admissibility.
One year ago, CBS refused to comply with an order of this Court. In view of the difficult legal issues which were then unresolved, this Court imposed a technical fine of one dollar per day solely to complete the record and make the issue ripe for review. Refusal to comply with today's order would present a much different situation. The Court does not see any justification for such a refusal. This Court simply cannot evaluate the statements now in its possession standing in isolation. Whether or not the Court is correct in its ruling on the separate issue of whether the materials may be turned over to the defense at the trial if it finds them exculpatory, CBS would be able to obtain review before disclosure of any kind. Thus, it waives nothing and loses nothing by submitting the remaining portions of the conversations necessary to the completeness and intelligibility of what the Court already has.
Thus, if CBS does not today indicate its willingness to comply with the Court's order, it will be held in civil contempt. As our Circuit has recently confirmed, civil contempt is an appropriate means both to coerce compliance with the court's directives and to vindicate the court's institutional authority. United States v. Criden, 633 F.2d 346, 352 (3rd Cir. 1980); see In re Farber, 78 N.J. 259, 394 A.2d 330, cert. denied, 439 U.S. 997, 99 S. Ct. 598, 58 L. Ed. 2d 670 (1978). We leave for the moment the penalty which this Court will impose, for it is the hope of the Court that CBS may decide to comply and that it will be unnecessary to fix a penalty.
III. WHETHER MATERIAL MAY BE TURNED OVER TO DEFENDANTS AT TRIAL REGARDLESS OF ITS ADMISSIBILITY.
The only remaining issue now before the Court is whether it should turn over to the defendants at trial the statements of projected witnesses already in the Court's possession, irrespective of whether they prove to be admissible as prior inconsistent statements.
If the materials had remained in the sole possession of CBS, defendants would not be entitled to production now unless they were able to satisfy a four-part test:
(1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not intended as a general "fishing expedition."
United States v. Cuthbertson, supra, 630 F.2d at 145, quoting from United States v. Nixon, 418 U.S. 683, 699-700, 94 S. Ct. 3090, 3103, 41 L. Ed. 2d 1039 (1974).
Were this material to repose solely in CBS's file today, defendants would have difficulty meeting at least the first part of that test. The Court of Appeals upheld the subpoena directed to the statements of projected witnesses on the assumption that such statements might be introduced into evidence on cross-examination of those witnesses as prior inconsistent statements. That opinion implies that the admissibility of the statements cannot be predicted with complete accuracy prior to trial. It is possible that the government will decide not to call those particular witnesses, or that the witnesses' testimony will be entirely consistent with their prior positions. The fact that the information in the text of the prior statements may be otherwise useful to the defense is not considered in the Nixon/Cuthbertson test. In addition, if the material were in the possession of CBS alone, defendants would be unable to meet the third part of the test; that is, they would not be able to show that they could not properly prepare for trial without production.
Whether or not this Court, without first having viewed these statements in camera, could require CBS to produce them directly to the defendants is not now the issue. The fact is that, in accordance with the directives of the Court of Appeals, CBS has supplied the Court with three statements, partially edited, of prospective government witnesses. Under these unusual circumstances, the Court must now determine whether to turn over materials in its possession to the defendants at trial not because they prove to be admissible, but because they are exculpatory. Taking into account that it has reviewed the materials in camera and that the Court has an obligation beyond that of disinterested third parties to the administration of justice, the Court must balance the interests of these criminal defendants against the interests of the network.
On the basis of our in camera review of the three transcripts submitted by CBS, we have determined that portions of the transcripts would materially aid the defendants in the preparation of their defense.
In explaining this finding, we must necessarily be circumspect, so that the confidentiality aspects of CBS's position will not be mooted. In each of the submitted interviews, Mike Wallace, on behalf of CBS, incisively probes the state of mind of alleged victims of the defendants' practices, and at times seems to suggest that the victims-interviewees did not exercise reasonable judgment. The state of mind, both of the franchisees and the defendants, is at the very core of this case. It is clear from the indictment that the government will try to prove that defendants knowingly made false representations to prospective franchisees intending to induce them to invest substantial sums of money in the enterprise. To the extent that the submitted materials suggest that the franchisees knew that the representations were untrue, or did not rely on them, they would be of extreme importance to the preparation of the defense. It is clear that certain portions of the transcripts suggest that some of the victims themselves may have been partially responsible for the loss of some of their investment. They indicate that some of the investors, knowledgeable in financial matters, failed to investigate the enterprise completely. Such information would be of use to a defendant attempting to show that his representations, although perhaps inaccurate, were nonetheless innocent, and to a defense which must confront these witnesses on the stand. The information would be even more important as it relates to franchisees whom the government elects not to call because their testimony may be unfavorable to the prosecution. The right to call witnesses on one's behalf is a vital component of the defendants' Sixth Amendment guarantees. Washington v. Texas, 388 U.S. 14, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967).
The fact that information may be material to the preparation of the defense does not obligate a third party to submit it to the defendants; and CBS takes the position that without the coercive power of the court it would give no information to the defendants, no matter how exculpatory. The obligations of the Court, however, are not synonymous with those of third parties. The prosecution has the burden to disclose to the defense all evidence which might create a reasonable doubt that would not otherwise exist, United States v. Agurs, 427 U.S. 97, 112, 96 S. Ct. 2392, 2401, 49 L. Ed. 2d 342 (1976); see Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) ("Brady"). The Court, unlike the prosecution, is not an adversarial party in the proceedings. It sits neither to prove guilt nor establish innocence; but merely to maintain a fair trial. It is almost inconceivable that a court, possessing exculpatory information, must remain silent when the prosecution possessing identical information would be compelled to speak.
CBS contends that the Court has no obligation to turn over documents material to the preparation of the defense. It relies on several cases which have held that a court, or probation office, need not supply the defense with the presentence report of a prosecution witness containing the equivalent of Brady material. See, e.g., United States v. Trevino, 556 F.2d 1265 (5th Cir. 1977) (defendants not entitled to disclosure of presentence report under Brady, Jencks Act, or Fed.R.Crim.P. 16); United States v. Dingle, 546 F.2d 1378 (10th Cir. 1976) (defendants not entitled to presentence report under Brady of Jencks Act); United States v. Trejo-Zambrano, 582 F.2d 460 (9th Cir.), cert. denied, 439 U.S. 1005, 99 S. Ct. 618, 58 L. Ed. 2d 682 (1978) (defendant not entitled to presentence report under Fed.R.Crim.P. 16). Each of these cases involved a presentence report, to which attaches a special measure of confidentiality. The importance of confidentiality was stressed by the Tenth Circuit in Dingle:
We concur in the trial court's finding that a presentence report is not a producible "statement" under the Jencks Act. The need for maintaining the confidentiality of a probation report outweighs any possible need for its discovery under the Jencks Act.... A presentence report is prepared exclusively at the discretion of and for the benefit of the court. It is essential that the confidentiality of such a report be protected to insure the free flow of information.