In the

United States Court of Appeals

For the Seventh Circuit

No. 10-2359

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ROD BLAGOJEVICH and ROBERT BLAGOJEVICH,

Defendants.

APPEAL OF:

CHICAGO TRIBUNE COMPANY, THE NEW YORK TIMES

COMPANY, ILLINOIS PRESS ASSOCIATION, and

ILLINOIS BROADCASTERS ASSOCIATION

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 08 CR 888—James B. Zagel, Judge.

ARGUED JUNE 29, 2010—DECIDED JULY 2, 2010—

AMENDED JULY 12, 2010

Before EASTERBROOK, Chief Judge, and WOOD and

TINDER, Circuit Judges.

EASTERBROOK, Chief Judge. Anticipating that the substantial 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 impartiality (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 counterpart 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 timeliness 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 jurisdictional 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 regrettable to permit a district judge to frustrate any challenge 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 intervened 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 highprofile 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 question, 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 contested 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 amendment 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 defendant 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 improved 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 conclusion. 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 obtaining the information complicates matters, however,

because there is no general constitutional “right of access” 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 amendment). 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 therefore 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 confidential until the trial’s end.

But these are not subjects on which we need to make

much headway, given the presumption in favor of disclosure—a presumption that so far has not been overcome, because the district court did not afford an opportunity 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 procedure 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 adequate 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 appropriate 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 instantmessage 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 anticipates 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 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 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
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 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).

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 conversations 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 exceptionally 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.

7-15-10