by the United States Court of Appeals for the District of Columbia Circuit

“ Because indiscriminate use of the term jurisdiction is inveterate in the profession, appellants cannot be faulted for characterizing the question as they do. Nonetheless, the flaw they assert entails at most jurisdiction writ small.
Jurisdiction is indeed basic when the word is used to mean the legislative, executive or judicial power of the United States or, in our federal system, a state of the United States. Legislative jurisdiction refers to the power of a political entity to enact and apply laws to a given person, thing or occurrence. ”

“ As to potential defendants not involved in the proceeding, or even as to evidence of other crimes of the same defendants, premature publication can taint future prosecutions to the detriment of both the government and the defense. If the additional evidence be merely cumulative evidence of the same criminal acts on which the disposition agreement was based, public access would seem to serve little purpose, except perhaps if and when the materials are relied upon in sentencing. ”

“ To avoid incarceration, they need not persuade the district judge that any accusation against them is false; they need only abandon their unlawful resistence and testify before the grand jury. See Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 828 (1994) .
The better analogy is R. Enterprises, where the Supreme Court approved of ex parte proceedings to determine the reasonableness of grand jury subpoenas. ”

“ Questions based on illegally obtained evidence are only a derivative use of the product of a past unlawful search and seizure. They work no new Fourth Amendment wrong.
As a result, we are not dealing with a question of rights, but of remedies. In particular, we must decide whether appellants, during a criminal proceeding involving another party, may invoke the exclusionary rule to bar the use (and derivative use) of evidence illegally seized from them. ”

“ Whatever the purposes served by the exclusionary rule, the fundamental thrust of the fourth amendment is at bottom the protection of privacy and property interests. [FN108] Putting aside for the moment the prospect of untoward invasions of third-party interests, it would be ironic indeed if one who contests the lawfulness of a search and seizure were always required to acquiesce in a substantial invasion of those interests simply to vindicate them. ”

“ Since Kember and Budlong were extradited and arraigned only on local charges, however, appellants contend that the District Court lost jurisdiction to try the case and was therefore without power to hold them in contempt for refusing to testify in response to the Government's subpoenas. [1]
The word jurisdiction is popular in the lexicon of lawyers and judges, so popular that its chameleon quality sometimes slips from our grasp. ”

“ We choose to retain jurisdiction with the virtual certainty that a simple remand would result in a second appeal regardless of the trial judge's ultimate decision. Our purpose is twofold. First, we hope to obviate the proliferation of motions and collateral proceedings which has characterized the litigation of this and other issues related to these criminal proceedings, a profusion of paper which has sorely tried the patience of this court and the district court. Second, we seek to ensure that the documents remain under seal until the matter is again before this court. ”

“ Judicial jurisdiction denotes the political entity's power to subject a given person, thing or occurrence to its judicial processes. [4] There is in this case no absence of jurisdiction in any of these basic meanings. Congress has the undisputed power under the Constitution [5] to define the crimes involved in the pending prosecution, the U.S. Attorney's Office has undisputed authority to conduct the prosecution, and the United States (Congress) , beyond doubt, has power to commit the case to adjudication in a court of its creation. ”

“ In particular, we wish to emphasize that we do not decide: (1) The rights of defendants or any third party to exclude the public from the courtroom conduct of a criminal case or from the records of the trial of criminal charges; (2) The public right of access to seized materials used for any purpose other than to demonstrate on a motion to suppress, the unlawfulness of the search; and (3) The procedural and substantive rights of third parties who seek to assert a privacy interest in materials not compulsorily taken from their persons or premises. ”

“ If appellants testify, the evidence they supply may furnish the Government with no insights into possible defense strategies beyond those that documents now in the Government's possession suggest. Nor would appellants be bound by any testimony they give in the Kember-Budlong prosecution. That testimony would not be admissible against them in any subsequent proceeding. The possibility that appellants may respond differently on another day further undercuts the Government's ability to divine later strategy from current testimony. ”

“ In short, the trial judge was placed in a position where either action he elected in regard to the sealed documents would have been criticized. In my view, the only proper action was to remove the seal on the documents the court found not to support the defendants' claim that the search was unlawful.
D Judicial proceedings are not secret in our society. Indeed, the judiciary scrupulously requires that all participants in a judicial proceeding be given equal access to the court, and that, particularly in criminal cases, the proceedings be open to the public, with severely limited exceptions. ”

“ Initially, we note that many of these arguments are more appropriately raised by appellants in attacking their own convictions. Similarly, any impropriety by the Government affecting the fairness of the trial of defendants Kember and Budlong may be raised by those defendants in their own right. We express no view as to the likelihood of success of such arguments should they be raised by appellants or by Kember and Budlong as defendants.
Courts have long recognized that grants of immunity are largely made at the discretion of the executive and legislative branches of the Government. ”

“ Every court has supervisory power over its own records and files, and access has been denied where court files might have become a vehicle for improper purposes. "It is difficult to distill from the relatively few judicial decisions a comprehensive definition of what is referred to as the common-law right of access or to identify all the factors to be weighed in determining whether access is appropriate. ”

“ Accepting this argument of the Government, however, does not dispose of appellants' Fourth Amendment argument. Appellants here assert that their own Fourth Amendment rights protect them from being forced to testify in this case. [23] The question presented to us, therefore, focuses on the extent to which the Fourth Amendment protects an individual from unlawful seizures of evidence when that evidence will be used against some other party.
At the outset, it is fundamental that the Fourth Amendment protects all citizens, and not merely criminal defendants. ”

“ The record does not permit us to determine how the trial judge's analysis of the generalized interests at stake differed from our own, nor whether he may have justified disclosure on the basis of the "particularized" factors we suggest or on some other basis. If, upon reconsideration in light of our analysis, the trial judge determines to abide by his unsealing order in whole or in part, the reasons relied upon should be identified in a supplemental rationale with specific reference to the particular documents or group of documents to which each reason is applicable. ”

“ B. Appellant's Right to the Effective Assistance of Counsel Related to their concern that the prosecutor may use their immunized testimony in violation of their Fifth Amendment privilege, appellants forcefully argue that if the prosecutor is permitted to examine them now, their Sixth Amendment right to the effective assistance of counsel will be undermined. They fear revelation of the strategy they have worked out with their attorneys for use in any future proceedings directed against them. ”

“ The risk is especially grave in document searches not only because the protected position occupied by personal papers has traditionally been closely guarded [FN110] but because determination of a claim of overbreadth may require the court to examine the documents' contents. However, in this case it is not clear that such an examination was undertaken in the course of ruling on the suppression motion; the unsealing decision is thus especially difficult to reconcile with the purposes underlying the documents' inclusion in the record of the suppression proceedings. ”

“ Hubbard's request that immunity be granted to Mrs. Kember, Kember was in the United Kingdom, challenging the extradition request of this country. Moreover, Kember was a codefendant charged with the same crimes in the same indictment with appellants. We find, therefore, that no manipulation or bad [p1372] faith on the part of the Government is uncovered by the fact that the Government granted immunity to Hubbard but refused to grant immunity to Kember. At the time that immunity was considered for each witness, Hubbard and Kember stood in very different positions before the Government. ”

“ The Nature of the Church's Interests We think the kinds of interests raised by the Church in its effort to protect the confidentiality of documents seized from its premises are sufficiently strong to mandate the identification of some procedural mechanism by which those interests can be presented contemporaneously to the court that controls public access to the records of which the documents became a part. ”

“ Similarly, a federal court ordinarily does not abuse its discretion when federal civil claims drop from a case after the start of trial and the court proceeds with the pendent state claims. Gibbs, 383 U.S. at 726-27, 86 S.Ct. at 1139-40.↑ While a witness may challenge a court's authority to compel his testimony and may assert testimonial privileges, we know of no case permitting a witness, on appeal from a contempt citation, to attack mere errors by the trial court. This is so even if, but for the trial court's error, the witness would not have been called to testify. ”

“ The public does have a right to know; and to hold otherwise would be to make a folly of the first amendment with respect to the right of the public to know, which this court has written on at length on several occasions. ”

“ PER CURIAM Appellants, subpoenaed by the prosecution to testify in a criminal trial currently in progress in the District Court and granted use immunity for that purpose, refused to testify and were held by the District Court to be in civil contempt. They appeal that judgment and challenge its validity on a number of grounds. ”

“ We recognize that there are grave dangers inherent in executing a warrant authorizing a search and seizure of a person's papers that are not necessarily present in executing a warrant to search for physical objects whose relevance is more easily ascertainable. In searches for papers, it is certain that some innocuous documents will be examined, at least cursorily, in order to determine whether they are, in fact, among those papers authorized to be seized. ”

“ Appellants claim that their situation is similar to that of defendants whose private communications with their attorneys were revealed to the Government. In United States v. Levy, 577 F.2d 200 (3d Cir. 1978) , for example, the court held that such intrusion into the privacy of the attorney-client relationship warranted reversal of a conviction whether or not the informant's disclosure to the Government actually prejudiced the defendant. ”

“ An important element in this case is the fact that the party from whom the documents were seized was not made a defendant in the proceedings and now objects to public access to the fruits of the seizure. We think that where a third party's property and privacy rights are at issue the need for minimizing intrusion is especially great and the public interest in access to materials which have never been judicially determined to be relevant to the crimes charged is especially small. ”

“ For these appellants, a second trial engagement is conjectural. [15] In another respect, these appellants range nearer to convicted defendants. The concern that the Government's real motive in compelling testimony under use immunity is to gather evidence against the witness is highest in the case of the unindicted witness. [16] If a prosecutorial [p1363] evidence-gathering motive is a risk in the case of a witness facing initial trial following indictment, that risk is diminished when the witness, like these appellants or Liddy, cannot be further prosecuted if his present conviction stands. ”