UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA, : CR. NO. 3:23-CR-149

 v. : (JUDGE MANNION)

DAMIEN BOLAND. :

:

 Defendant.

MEMORANDUM

This matter comes before the Court on Defendant Damien Boland’s 

motions to compel the production of any and all audio and/or video 

recordings of the United States Of America’s (the “Government”) anticipated 

trial witness, Thomas J. Trotta, Jr. (“Trotta”), and that of his attorney acting 

as his agent, in the possession of Non-Parties CBS News, Incorporated 

(“CBS”), author Jon Wertheim, The Atlantic Monthly Group, LLC (“TAMG”) 

and author Ariel Sabar (Docs. 156 and 169), and the aforementioned NonParties’ motions to quash such production (Docs. 176 and 200). The Court 

heard oral arguments on December 18, 2024. For the reasons set forth 

below, Defendant’s motion to compel as to CBS and Jon Wertheim (Doc. 

156) will be GRANTED in part subject to the condition that Defendant 

Boland’s request complies with Rule 17(c) of Federal Rules of Criminal 

Procedure which will be determined at trial, and CBS’s corresponding motion 

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to quash (Doc. 176) will be DENIED; and Defendant’s motion to compel as 

to TAMG and Ariel Sabar (Doc. 169) will be DENIED and TAMG’s 

corresponding motion to quash (Doc. 200) will be GRANTED. 

I. Background

A. The Indictment and Allegations Against Defendants

On June 6, 2023, a federal grand jury sitting in Scranton, Pennsylvania 

returned an indictment charging Defendants Damien Boland, Nicholas 

Dombek, Alfred Atsus and Joseph Atsus with one count of Conspiracy to 

Commit Theft of Major Artwork, Concealment and Disposal of Major Artwork, 

and Interstate Transportation of Stolen Property, in violation of 18 U.S.C. 

§371. Nicholas Dombek was further charged with eight counts of 

Concealment or Disposal of Major Artwork, in violation of 18 U.S.C. §668 

and §2, one count of Theft of Major Artwork, in violation of 18 U.S.C. §668 

and §2, and one count of Interstate Transportation of Stolen Property, in 

violation of 18 U.S.C. §2314 and §2. Damien Boland was further charged 

with eight counts of Concealment or Disposal of Major Artwork, in violation

of 18 U.S.C. §668 and §2, and two counts of Theft of Major Artwork, in

violation of 18 U.S.C. §668 and §2. Joseph Atsus was further charged with 

four counts of Concealment or Disposal of Major Artwork, in violation of 18 

U.S.C. §668 and §2, and one count of Theft of Major Artwork, in violation of 

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18 U.S.C. §668 and §2. Alfred Atsus was further charged with three counts 

of Concealment or Disposal of Major Artwork, in violation of 18 U.S.C. §668 

and §2, and one count of Theft of Major Artwork, in violation of 18 U.S.C. 

§668 and §2. (Doc. 1).

In Count 1 of the indictment the government specifically alleges that 

from August 1999 to June 2019 Defendants conspired with Thomas Trotta, 

Dawn Trotta, Frank Tassiello, Ralph Parry, and Daryl Rinker to steal objects 

of cultural heritage from museums around the country. During the nearly

twenty years the conspiracy allegedly existed the government claims that 

Defendants and other conspirators conducted research to locate collections 

containing valuable pieces of artwork, antiques, sports memorabilia, and 

other items. Defendants and other conspirators would travel to these 

collections and conduct “reconnaissance” to determine if it was worth 

stealing a given object. Once a theft was agreed upon and planned, 

members of the conspiracy, including the moving Defendant, allegedly would 

meet at pre-arranged locations, travel to the museum or other target of the 

burglary, break in, smash or destroy the protective display cases, and steal 

and remove the objects on display. After the stolen objects were taken, 

members of the conspiracy, including the Defendant, would transport them

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back to Northeastern Pennsylvania, where they would itemize, distribute, 

and break-down the stolen objects between the members of the conspiracy. 

Three locations in particular were allegedly utilized for these activities: 

the residence of Dombek, the residence of conspirator Dawn Trotta, and a 

bar owned and operated by Boland. At his residence Dombek allegedly 

stripped stolen items, including Yogi Berra’s World Series Rings, of their 

gemstones and other valuable attachments before melting them down into 

easily transportable pieces of valuable metal. Dombek also allegedly burned 

or buried several paintings brought to his home. When he was arrested on 

related state charges Dombek went to the homes of Boland and conspirators 

Dawn Trotta and Darlyn Rinker, where he threatened them. He further is 

alleged to have attempted to buy a fatal amount of fentanyl to kill a 

government witness and had in his possession a poison plant allegedly with 

the intent to use it for the same purpose. For this Dombek was also charged 

with witness intimidation. 

When the indictment in this case was filed moving Defendants were all 

timely arraigned and released. However, Dombek fled into the woods of 

Northeastern Pennsylvania and remained at large until he surrendered on 

January 1, 2024. After a year of delays, in part caused by Dombek’s flight, a 

joint trial of Dombek and the other Defendants is scheduled to begin on 

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January 13, 2025. All other conspirators except Darlyn Ricker, who passed 

away on April 18, 2024, have pled guilty and are now awaiting sentence. 

B. Trotta Crimes and Involvement 

On May 22, 2023, an Information was filed with this Court charging 

Trotta with theft of major artwork in violation of 18 U.S.C. §668. United States 

of America v. Thomas Trotta, Civ. No. 3:23-cr-00127-MEM (M.D. Pa. Jun. 

15, 2023) (Doc. 1). That same day, Trotta entered into a plea agreement and 

agreed to cooperate with the Government in its prosecution of Trotta’s 

alleged co-conspirators. Id. at (Doc. 5). On June 15, 2023, Trotta appeared 

before Judge Saporito for his initial appearance and was later released 

subject to certain conditions. Id. at (Doc. 16). Those conditions included not 

violating any federal, state, or local laws while on release and reporting all 

arrests, traffic stops, or other police contact to his pretrial services officer. Id.

On July 5, 2023, Trotta appeared before this Court and pled guilty. Id. at 

(Doc. 20). Trotta remained released pending sentencing.

While on pretrial release and while cooperating with the Government, 

Trotta allegedly continued to commit crimes. For example, on August 30, 

2023, shortly after entering his guilty plea, Trotta allegedly entered LaNard 

Jewelry wearing a flat cap and a surgical mask to hide his identity, and stole 

a necklace and bracelet valued at $1,500. (Doc. 170, p. 5). On the night of 

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January 27, 2024, into January 28, 2024, Trotta allegedly committed another 

theft in Dunmore, Pennsylvania and was later charged with two felonies by 

the Dunmore Police Department. (Id. at p. 7). Trotta is allegedly the 

“mastermind” of the wide-ranging conspiracy that the Defendants are 

charged with and the connecting tissue between all the co-conspirators.

Furthermore, Defendant Boland asserts that “[n]one of Trotta’s codefendants’ DNA was recovered[,] ... [t]here is no surveillance video 

depicting [co-defendants] at the locations of the burglaries when they 

occurred[,] there is no cell site location information indicating that [codefendants] were at the locations of the burglaries when they occurred” and 

“[a]bsent any physical or forensic evidence placing them at the burglaries at 

the time of the burglaries, the Government relies almost entirely on Trotta to 

implicate [co-defendants] in [their] offenses.” (Doc. 170, p. 14). 

C. Interviews with Jon Wertheim

On April 27, 2024, CBS broadcast a report on 60 Minutes (a news 

program run by CBS) about Trotta, his career as an art and memorabilia 

thief, and this case.1 That report included footage of interviews with Trotta 

1 Jon Wertheim, Meet Tommy Trotta: the thief who stole Yogi Berra, 

Roger Maris and Carmen Basilio memorabilia, 60 Minutes (Apr. 7, 2024), 

https://cbsnews.com/news/tommy-trotta-the-thief-who-stole-yogi-berraroger-maris-carmen-basilio-memorabilia-60-minutes-transcript/ (containing 

(footnote continued on next page) 

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conducted by CBS News reporter Jon Wertheim. During the interview, Trotta 

is described as “the theft ring’s mastermind,” and Trotta stated that he would 

bring unwitting individuals, including his niece and nephew, with him to scout 

museums to burglarize. According to Wertheim, Trotta stated that he “grew 

up a thief” and “still believed in Santa when he began stealing.” Wertheim 

additionally notes that Trotta stated that “theft became his full-time job.”

Several months later, on July 30, 2024, Sports Illustrated published an 

article by Wertheim, which relied on his earlier interviews with Trotta and 

included quotes from Trotta’s lawyer, Joseph D’Andrea. (Doc. 176, p. 1-2).2

In the article, Wertheim describes a conversation with Trotta where he 

acknowledged being “the biggest sports memorabilia thief in history.” This 

article notes that, after stealing Hall of Fame pitcher Christy Mathewson’s

jersey, Trotta spent several years with his co-conspirators “rampaging 

locally, often reselling the stolen merchandise online.” As shown, Trotta 

spoke about his, and his co-conspirators’, conduct during the earlier 

transcript of broadcast “Wertheim 60 Minutes”) (video of interview available 

at https://youtube.com/watch?v=k7-Sw_atPmg.)

2 Jon Wertheim, Crime Ring: The Story of the Sports World’s Most 

Infamous Thief, Sports Illustrated (July 30, 2024), 

https://www.si.com/mlb/digital-cover-crime-ring-sports-memorabilia-thieftommytrotta#:~:text==Tommy%20Trotta%20Jr.,as%audacious%20as%20the%20t

hefts.

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interviews which were not broadcasted on the 60 Minutes program. For 

example, the article explored Trotta’s attempted burglary of the Hillwood 

Museum while the edited interview on 60 Minutes centered on the theft of 

Yogi Berra’s World Series rings. According to the Sports Illustrated article, 

Trotta told that organization as well as 60 Minutes “his whole story.” (Doc. 

156, p. 10). 

D. Interviews with Ariel Sabar

In addition to his interviews for 60 Minutes and Sports Illustrated, Trotta 

was interviewed by Arial Sabar, a journalist whose work has appeared in 

publications including The Atlantic Magazine and The New York Times.

(Doc. 169, Exhibit A). According to Defendant Boland, Sabar recorded the 

interview with Trotta in public at Cara Mia’s Delicatessen (“Cara Mia’s”) in 

Dunmore, Pennsylvania. However, the only evidence presented by 

Defendant of such a recorded conversation is footage of Sabar holding a 

cellphone while speaking with Trotta. Definitively, Trotta’s person at Cara 

Mia was identified by the owner of Cara Mia, Cara Mia Iannieli Lowe (Doc. 

169, Exhibit B), Fred Larnerd, who is the owner of LaNard Jewelry (Doc. 169, 

Exhibit C), and an unidentified customer at Cara Mia’s. However, no 

evidence was presented to support the contention that a customer allegedly 

overheard Trotta speaking about crimes he committed while on pretrial 

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release or any other crime, which did not appear in any of the provided sworn 

declarations. 

Non-party TAMG asserted that Sabar “is currently working on a story 

about some of the events and individuals involved in this criminal case.” 

(Doc. 200, Ex. 5, p. 1). However, that reporting has not yet been published 

in any form. 

E. Procedural History

On September 25, 2024, two subpoenas were issued upon 60 Minutes 

and Wertheim for video and audio recordings of Trotta and his counsel (Doc. 

156, Exhibit A). Counsel for Paramount Global (“Paramount”), the parent 

company of CBS, agreed to accept service of both subpoenas on September 

27, 2024, as the interviews used for the Sports Illustrated article were derived 

from the 60 Minutes program. Counsel for Defendant Boland and Paramount 

agreed to construe the scope of the subpoena upon 60 Minutes to reach “any 

and all audio and/or video recordings of conversations, interviews, or 

statements with or made by Thomas J. Trotta” or his attorney (Doc. 156, 

Exhibit B). On October 9, 2024, Paramount counsel, on behalf of CBS, sent 

a letter to Defense counsel objecting to the subpoena as “improperly 

seek[ing] pre-trial production of non-party, non-evidentiary material under 

Rule 17(c)” and, even if production was allowed, the material sought was 

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“protected by the reporter’s privilege under the First Amendment to the U.S. 

Constitution and Federal Rule of Evidence 501.” (Doc. 156, Exhibit C).

On October 9, 2024, Defendant Boland filed a Motion to Compel (Doc. 

156). On November 7, 2024, CBS filed a Motion to Quash the subpoena 

served by Defendant Boland to Paramount on two separate grounds. (Doc. 

176). On December 3, 2024, the Government wrote a letter indicating that it 

does not take a position regarding the Motion to Compel. (Doc. 195). The 

parties have since filed briefs. 

On September 27, 2024, a subpoena was issued upon Sabar for any 

and all audio and/or video recordings of Trotta and/or his counsel (Doc. 169, 

Exhibit D). On October 1, 2024, Defendant Boland’s counsel spoke with the 

General Counsel for TAMG, the publishing company for The Atlantic

Magazine. He accepted service for the subpoena as of October 2, 2024. 

TAMG counsel indicated that Sabar interviewed Trotta on assignment for 

The Atlantic Magazine and that it would not produce a journalist’s documents 

absent a court order. On October 10, 2024, TAMG counsel objected to the 

subpoena. (Doc. 169, Exhibit E). On October 29, 2024, Defendant Boland 

filed a Motion to Compel. (Doc. 169). On December 6, 2024, Non-Parties 

Ariel Sabar and TAMG filed a Motion to Quash Defendant Boland’s

subpoenas. (Doc. 200). The parties have since filed briefs. All parties 

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regarding this matter were heard during oral arguments on December 18, 

2024. 

II. Discussion

A. The Reporter’s Qualified Privilege

In rare cases, a conflict arises between the First Amendment and the 

criminal defense process. This tension has been described as a balance 

between the “freedom of the press and the obligation of all citizens to give 

relevant testimony with respect to criminal conduct.” Branzburg v. Hayes, 

408 U.S. 665, 710 (1972). This is such a case.

On the one hand, CBS and TAMG argue that the subpoenas seeking 

the production of “any and all audio and/or video recordings of conversations, 

interviews, or statements with or made by Thomas J. Trotta” and his attorney

should be quashed because the First Amendment bestows upon them a 

privilege to refuse to make such a production. Defendant Boland counters 

that the qualified privilege in this case must yield to his constitutional rights 

to a fair trial under the Fifth Amendment and to compulsory process and 

effective confrontation and cross-examination of adverse witnesses under 

the Sixth Amendment. “Courts must tread carefully on the hallowed ground 

where these basic concerns, the free flow of information and the fair 

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administration of criminal justice, conflict.” United States v. Criden, 633 F.2d 

346, 358 (3d Cir. 1980).

After a trilogy of cases, the Third Circuit has established a qualified 

federal common law privilege – the reporter’s privilege – for journalists to 

refuse to disclose their confidential sources, a reporter’s resource materials 

and other unpublished information, even when those materials involve 

known sources. See Riley v. City of Chester, 612 F.2d 708 (3d Cir. 1979), 

United States v. Cuthbertson, 630 F.2d 139 (3d Cir. 1980) (“Cuthbertson I”)

and Criden, 633 F.2d at 346. Beginning with Riley, set in the context of a civil 

case, the Riley court set forth a three-prong inquiry whereby the assertion of 

the privilege and the litigant’s need for evidence would be balanced on an ad 

hoc, case-by-case basis. 612 F.2d at 716. The Riley court held that the 

materiality, relevance, and necessity of the information sought must be 

shown. Id. In so holding, the court emphasized that the circumstances in 

which the issue arose must first be considered. Id.

The Third Circuit extended the reporter’s qualified privilege to criminal 

cases in Cuthbertson I, 630 F.2d at 148. The Cuthbertson I court expanded 

the Riley holding to protect unpublished materials held by reporters, as is the 

case here. See Cuthbertson I, 630 F.2d at 147. To wit:

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“We do not think that the privilege can be limited solely to 

protection of sources. The compelled production of a reporter’s 

resource materials can constitute a significant intrusion into the 

newsgathering and editorial processes. Like the compelled 

disclosure of confidential sources, it may substantially undercut 

the public policy favoring the free flow of information to the public 

that is the foundation for the privilege. Therefore, we hold that 

the privilege extends to unpublished materials in the possession 

of CBS.” 

Id. (internal citations omitted). In applying the three-pronged Riley test, 

the Cuthbertson I court concluded that film and audio tapes or written 

transcripts of verbatim or substantially verbatim statements made by 

interviewees who were on the government’s witness list were “unique bits of 

evidence that are frozen at a particular place and time,” and found that the 

government’s need for the evidence outweighed the privilege. Id. at 148.

Furthermore, assessing the various factors a court considers when 

balancing the privilege against the need for evidence, the Cuthbertson I court 

noted that “the lack of a confidential source may be an important element in 

balancing the defendant’s need for the material sought against the interest 

of the journalist in preventing production.” Id. at 147. 

In Criden, the Third Circuit held that a journalist, summoned as a 

defense witness in a criminal proceeding, could not refuse to affirm or deny 

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that she had a conversation with a particular individual who had already 

publicly testified that the conversation occurred. 633 F.2d at 359. In so 

holding, the Court surmised that the party seeking disclosure of information 

“probably should be required to prove less to obtain the reporter’s version of 

a conversation already voluntarily disclosed by the self-confessed source 

than to obtain the identity of the source itself.” Criden, 633 F.2d at 358; see 

also Gonzales v. Nat’l Broad. Co., Inc., 186 F.3d 102, 109 (2d Cir.1999) 

(holding that when protection of confidentiality is not at stake the qualified 

privilege should be more easily overcome).

None of the parties contest whether a reporter’s privilege exists or that 

it is a qualified privilege subject to a balancing test. However, the parties 

disagree as to its application to their respective positions. 

B. Application of the Riley Criteria

In applying the three Riley factors to this case, this Court has to strike 

“a proper balance between freedom of the press and the obligation of all 

citizens to give relevant testimony with respect to criminal conduct.” Criden, 

633 F.2d at 357 (quoting Branzburg, 408 U.S. at 710). Moreover, the Court 

must be mindful of the following instructive observations. First, as the Riley

Court admonished, this Court must “consider first the circumstances in which 

the issue arose.” Riley, 612 F.2d at 716.

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Like Cuthbertson I, this case implicates non-published information. But

unlike Cuthbertson I, this case deals with a self-avowed source whose 

identity is publicly known and is expected to be a critical witness in the 

criminal case. It is also understood that this is not a case where the 

Defendant is seeking the reporters’ personal notes or files. Rather, 

Defendant Boland seeks the limited information of “any and all audio and/or 

video recordings of conversations, interviews, or statements with or made by 

Thomas J. Trotta,” an anticipated trial witness crucial for the prosecution,

and his attorney acting as his agent. 

The Court must recognize that the scope of the qualified privilege is 

circumscribed by the purposes it serves. Logic and fairness demand that 

“[t]he rule follows where its reason leads; where the reason stops, there 

stops the rule.” Criden, 633 F.2d at 356 (citing United States v. Schreiber, 

599 F.2d 534, 537 (3d Cir. 1979)). Furthermore, the moving party is required 

to prove less to obtain the information where, as here, a version of the 

conversation was already voluntarily disclosed by the self-confessed source. 

See id. at 358; Cuthbertson I, 630 F.2d at 147.

With the foregoing in mind, the Court next must apply the three Riley

factors. The Riley court suggested a “delicate balancing” of the interests at 

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hand, in which the materiality, relevance, and necessity of the information 

sought must be demonstrated. See Riley, 612 F.2d at 717. 

First, the moving party must demonstrate that it has made an effort to 

obtain the information from other sources. See Criden, 633 F.2d at 358–59. 

In terms of the materials in possession of CBS, another source quite 

obviously is the broadcasted 60 Minutes interview segment and the 

published article on Sports Illustrated. The published article contains a 

written version of conversations and interviews had between Wertheim and 

Trotta with certain quotes. The printed article is not the equivalent of the 

audio tape and must be distinguished from the audio tape containing the 

interview from which the quotes in the article are derived from. To properly 

assess the credibility of Trotta as a witness, it would be best for the jury to 

hear the actual conversation between Wertheim and Trotta, and not just read 

mere snippets of the interview printed in the article. A live conversation 

permits the listener to judge certain credibility aspects of the speakers. 

Similarly with the 60 Minutes interview segment, Wertheim summarizes 

some of the taped conversations with Trotta. For example, Wertheim states 

“[t]heft became ... [a] full-time job” for Trotta, but this statement is a summary 

and narration from Wertheim, not Trotta’s own words. Again, to assess 

Trotta’s credibility as a witness, the jury must be able to hear the actual 

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conversation between Wertheim and Trotta—including conversations that 

did not make the final cut of the 60 Minutes segment. In contrast, with 

regards to Trotta’s interviews and conversations with Sabar, no other source 

is available because The Atlantic Magazine article has not been published.

Thus, Defendant Boland has satisfied the first criterion. 

Second, the moving party must show that the only access to the 

information sought is through the reporter and the source. See Criden, 633 

F.2d at 359. The facts of this case are somewhat different than Criden in that 

the moving party is seeking unpublished recordings of interviews and 

conversations, and not the journalists’ testimonies or identification of a 

confidential source. Nevertheless, this analysis is the same as that for the 

first criterion. What is sought by Defendant Boland is not only “what” was

said and left out from the article and the 60 Minutes segment, but also “how” 

it was said. Here, much like in Criden, only by listening to the complete 

unpublished video recordings and other recorded conversations will the jury 

be able to evaluate Trotta’s credibility. This particular quality of the 

conversation can only be experienced by listening to the audio tape itself or 

watching the unpublished videos. Much like Cuthbertson I, the audio tape 

represents “unique bits of evidence that are frozen at a particular place and 

time.” Cuthbertson I, 630 F.2d at 148. Therefore, the Defendant has no other 

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source from which he can acquire this insight. The second criterion is equally 

met. 

Relevance and importance to the particular proceeding is the final 

criterion under Riley. See Criden, 633 F.2d at 359. Criden intimated that the 

party seeking the privileged information must demonstrate that the 

information is “crucial” to the claim. However, the United State District Court 

for the District of New Jersey reviewing Third Circuit precedent on reporter’s 

privilege understood such burden to be lowered where the information 

sought is nonconfidential and the source is self-avowed. In re Grand Jury 

Empaneled, 99 F.Supp.2d 496, 501 (D.N.J. May 24, 2000) citing 

Cuthbertson I, 630 F.2d at 147. This Court agrees. Accordingly, the 

Defendant should only have to establish that the information sought is 

necessary for impeachment purposes.3

The Defendant has satisfied the final criterion as to CBS. The purpose 

of challenging Trotta’s testimony is to sift through the evidence he will provide 

and determine whether Defendant Boland was implicated. Trotta’s interview 

with Wertheim went directly to the conduct and crimes charged in this case. 

3 If the heightened burden applied, this Court would nevertheless––as 

would any other court presented with the factual allegations in this case––be 

hard pressed not to find that Trotta’s anticipated testimony at trial is crucial 

to the Government’s prosecution as would be any impeachment materials to 

the defense.

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Clearly the motivation and credibility of Trotta as the “mastermind” of the theft 

ring are pertinent to the jury’s deliberations. Only by listening to the taped 

conversation, watching the full unpublished videos, or reading a complete 

transcript of Trotta’s interviews will the jury be able to appraise the credibility 

of Trotta's “story” as to the broader theft ring and conspirators involved. In 

light of the jury’s purpose to weigh the credibility it attributes to Trotta’s 

testimony, then, the contents of any audio tapes, transcripts or unpublished 

video recordings are germane to the determination of whether crimes were 

committed. Such recordings may be necessary to the jury’s fact 

determination of the events that transpired as described by Trotta in the 60 

Minutes segment and the Sports Illustrated article. The Court notes, 

however, that though the materials are deemed relevant and important, the 

defense is already in possession of substantial impeachment materials and 

that any further materials proffered or retained by CBS or TAMG would not 

likely change the outcome of this case. More may just be redundant and 

cumulative. Nevertheless, this Court cannot conclude that more would be 

unnecessary at this stage of the proceedings. Accordingly, the Defendant

has met all the Riley factors and, therefore, CBS’s reporter’s privilege to 

guard against producing those portions of Trotta’s interview contained in any 

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recorded conversations and unpublished video recordings is superseded by 

the countervailing interests in this particular case.

As to TAMG and Sabar, however, Defendant Boland has not satisfied 

the final criterion under Riley. The Court is unable to determine what 

conversations were had between Sabar and Trotta, and to what extent the 

contents of their conversations relate to the matter at hand. According to the 

submitted materials, part of Sabar and Trotta’s allegedly overheard 

conversation at Cara Mia related to Trotta’s crimes while he was on pretrial 

release. But such crimes are not relevant to the crimes Defendant Boland is 

charged with. Even if, tangentially, such material may be used for 

impeachment purposes, other sources such as police reports and filed 

indictments may be available to the defense. Allowing Defendant Boland to 

dig for any relevant information in Trotta and Sabar’s conversations, without 

knowing the full extent of the topics they explored, is tantamount to permitting 

a fishing expedition. See United States v. Nat’l Talent Assocs., Inc., 1997 

WL 829176, at *3 (D.N.J. Sept. 4, 1997) (quashing subpoena for outtakes 

from interview, noting that the subpoenaing party, “of course, has no 

knowledge of the contents of the privileged portions of the tapes, thus is 

forced to make a ... conjecture regarding their relevance”). Furthermore, 

unlike the matter with CBS where the balance of interests slightly favored the 

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Defendant’s Fifth and Sixth Amendment rights, the matter with TAMG and 

Sabar favor the protection of TAMG and Sabar’s First Amendment rights. 

The “compelled production of a reporter’s resource materials can constitute 

a significant intrusion into the newsgathering and editorial processes,” 

Cuthbertson I, 630 F.2d at 147, and such an intrusion is of even greater 

consequence when the reporter has not even completed such process. The 

editorial process is safeguarded as much as the confidential nature of 

sources because the “free flow of information” is equally protected when 

reporters and editors have the freedom to exercise their discretion in 

selecting which information to disseminate to the public and how best to 

present such information. Accordingly, TAMG’s motion to quash will be 

granted. 

C. Waiver of Reporter’s Privilege

Defendant Boland asserts that TAMG and Sabar have “waived” the 

reporter’s privilege because Sabar purportedly interviewed Trotta at Cara 

Mia, and Trotta was “overheard telling Mr. Sabar about ... crimes [Trotta 

committed] while released pending sentencing.” (Doc. 170, pp. 21, 27). This 

argument fails both as a matter of fact and law.

First, the basis upon which Defendant Boland grounds his assertion is 

an unidentified “customer” overheard “Trotta discussing the residential 

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burglary that he committed in Dunmore earlier in the year.” (Doc. 170, p. 9). 

Defendant Boland provided sworn testimony from Cara Mia’s owner, private 

investigator James Quiroz, and Fred Larnerd, the owner of LaNard Jewelry,

to support the identification of Trotta and Sabar at Cara Mia ordering food, 

but has provided no testimony from this anonymous “customer.” 

Furthermore, even if true, the conversation overheard related to crimes 

committed by Trotta that do not relate to Defendant Boland and his alleged 

co-conspirators charged in this matter. Sabar has explained that, in the 

course of his reporting, he interviewed Trotta in a private location. (Doc. 200, 

Ex. 4, Decl. of Sabar, ¶29). They went together to Cara Mia to order takeout 

lunch, but spent only a few minutes in the restaurant; stayed only long 

enough to order, pay and receive the food; and were mindful to “keep [their]

distance from—and face away from—any nearby customers, most of whom 

quickly came and went with their orders.” (Id., ¶31). Sabar “was not aware of 

any customers who were close enough to [them] for long enough to hear 

anything meaningful from the talk Trotta and [Sabar] had during [their] few 

minutes at the restaurant.” (Id.). 

Second, Defendant Boland appears to confuse the reporter’s privilege 

with attorney-client privilege, for which “confidentiality is essential to 

protected communications.” Super Tire Eng’g Co. v. Bandag Inc., 562 F. 

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Supp. 439, 441 (E.D. Pa. 1983) (quoting Barr Marine Products Co. v. BorgWarner Corp., 84 F.R.D. 631, 634-35 (E.D. Pa. 1979)). TAMG notes that 

Defendant Boland failed to provide any authority for the far-reaching 

proposition that any journalist who conducts an interview in a public place is 

thereby waiving the reporter’s privilege for their unpublished newsgathering 

materials. The Court agrees. Furthermore, even if the inadvertent disclosure 

of a portion of Sabar’s conversation with Trotta had any effect on the 

application of the reporter’s privilege, that effect would be strictly limited to 

the precise portions of the conversation that a third-party overheard. 

Publication of privileged information constitutes a waiver only as to that 

specific information. However, since no such information was published, 

there is no waiver, and this argument is dismissed. 

D. Federal Rule of Criminal Procedure 17(c)

Given that the qualified reporter’s privilege for CBS is superseded by 

the countervailing interests in this particular case, the remaining question is 

whether production of CBS’s unpublished information should occur before 

trial or after Trotta testifies. CBS argues that Rule 17 of the Federal Rule of 

Criminal Procedure limits the production of the unpublished material until 

after Trotta testified. The Court agrees.

Rule 17(c) provides the following:

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(c) Producing Documents and Objects.

(1) In General. A subpoena may order the witness to 

produce any books, papers, documents, data, or other 

objects the subpoena designates. The court may direct the 

witness to produce the designated items in court before 

trial or before they are to be offered in evidence. When the 

items arrive, the court may permit the parties and their 

attorneys to inspect all or part of them.

(2) Quashing or Modifying the Subpoena. On motion made 

promptly, the court may quash or modify the subpoena if 

compliance would be unreasonable or oppressive.

Fed. R. Crim. P. 17(c). The Third Circuit has explained that “Rule 17(c) 

was not intended to be a broad discovery device, and only materials that are 

‘admissible as evidence’ are subject to subpoena under the rule.” United 

States v. Cuthbertson, 651 F.2d 189, 192 (3d Cir. 1981) (“Cuthbertson II”)

(quoting Bowman Dairy v. United States, 341 U.S. 213, 221 (1951)). “The 

Supreme Court has determined that a rule 17(c) subpoena reaches only 

evidentiary materials.” Id. at 195. “The [Supreme] Court extended the 

admissibility requirement of rule 17(c) to materials held by third parties in 

United States v. Nixon[.]” Id. citing (Nixon, 418 U.S. 683, 699-700 n. 12 

(1974)). In Nixon, the Supreme Court explained that “in order to require 

production prior to trial, the moving party must show: (1) that the documents 

are evidentiary and relevant; (2) that they are not otherwise procurable 

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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.’” 418 U.S. at 699-

700. “[I]n order to carry his burden, [the moving party] must clear three 

hurdles: (1) relevancy; (2) admissibility; (3) specificity.” Id. at 700. Though 

Defendant Boland has shown that the information sought is relevant and 

specific, he has not “explained how the CBS materials could be admissible 

as evidence, unless [Trotta] testified and made inconsistent statements.” 

Cuthbertson II, 651 F.2d at 195. 

The Third Circuit has reviewed these particular timing and admissibility 

questions in Cuthbertson II, which guides this Court in how to manage 

production of the CBS materials—if such production occurs. Specifically, the 

Third Circuit found that “only materials that are ‘admissible as evidence’ are 

subject to subpoena” under rule 17. Id., 651 F.2d at 192. Defendant Boland 

has not demonstrated “any potential use of the present materials as evidence 

in the trial other than for purposes of impeachment.” Id. at 195. Similarly to 

Cuthbertson II, the materials sought by Defendant Boland, “[o]n their face, 

... are simply hearsay.” Id. Defendant Boland has not asserted “a relevant 

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exception to the hearsay rule.” Id. citing Fed. R. Ev. 802. The Third Circuit 

noted that “[o]nly after a witness has testified will his prior inconsistent 

statements cease to be hearsay, see Fed. R. Ev. 801(c), but we are unable 

to speculate on the likelihood of that occurrence.” Id. Thus, Trotta’s prior 

statements to Wertheim, if inconsistent to his anticipated testimony at trial, 

“ripen into evidentiary material for purposes of impeachment only if and when 

[Trotta] testifies at trial[.]” Cuthbertson I, 630 F.2d at 144. Accordingly, as a 

matter of law, the materials sought by Defendant Boland from CBS may not 

be obtained at this time by a rule 17(c) subpoena. Cuthbertson II, 651 F.2d 

at 195. 

However, Defendant Boland has made a sufficient showing to justify 

production of CBS’s materials to the Court for in camera review if his 

subpoena complies with rule 17(c) only if and when Trotta testifies at trial 

and makes impeachable statements.4 Pretrial production for in camera

review in this case is necessary to aid this Court in “its preparation for ruling 

on whether these statements will be produced to the defendants at trial [in] 

an attempt to avoid unnecessary delay and disruption of the trial.” 

Cuthbertson I, 630 F.2d at 145. Accordingly, CBS will be ordered to produce 

4 The Court will also have to review whether such statements are 

merely cumulative to the materials already in possession of Defendant 

Boland or substantively distinctive to warrant production.

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the requested materials for in camera review and its motion to quash will be 

denied. 

III. Conclusion

Based on the foregoing, Defendant’s motion to compel as to CBS and 

Jon Wertheim (Doc. 156) will be GRANTED in part subject to the condition 

that Defendant Boland’s request complies with Rule 17(c) of Federal Rules 

of Criminal Procedure which will be determined at trial, and CBS’s 

corresponding motion to quash (Doc. 176) is DENIED. CBS is directed to 

produce the requested materials to this Court for in camera review. 

Furthermore, Defendant’s motion to compel as to TAMG and Ariel Sabar 

(Doc. 169) is DENIED and TAMG’s corresponding motion to quash (Doc. 

200) is GRANTED.

s/ Malachy E. Mannion 

MALACHY E. MANNION

 United States District Judge

DATE: January 6, 2025

23-149-05 

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