United States v. Wuterich

This case is before us a second time on a Government interlocutory appeal, brought pursuant to Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862, and Rule FOR Courts-MaRtial 908, Manual for Courts-Martial, UNITED States (2008 ed.). The Government contends that the military judge erred as a matter of law when he quashed a Government subpoena for material in the possession of CBS Broadcasting Inc. (“CBS”), including an audio-video interview with Staff Sergeant (SSgt) Wuterich (appel-lee). The military judge held that a First Amendment “reporter’s privilege” applied to the material, and that the Government had failed to overcome CBS’s assertion of that privilege.

This case presents a matter of first impression: the existence and application of a reporter’s privilege in military jurisprudence.1 Our multi-part analysis examines: first, whether a reporter’s privilege applies in military courts-martial under the First Amendment, U.S. Const, amend. I, and Military Rule of Evidenoe 501(a)(1), Manual for Courts-Martial, United States (2008 ed.); second, whether a reporter’s privilege applies in military courts-martial under Mil. R. Evtd. 501(a)(4) as a principle of common law generally recognized in the trial of criminal cases in the United States district courts pursuant to Federal Rule of Evidence 501; and third, whether the military judge erred in his application of a reporter’s privilege in quashing the Government’s subpoena for non-confidential material, notwithstanding his finding that the material satisfied R.C.M. 703.

We have considered the record of proceedings to date, the pleadings of the Government, the appellee, and non-party CBS, as well as the outstanding oral arguments of 25 June 2009.2 For the reasons set forth in our opinion below, we hold that the facts presented in this ease do not support the recognition of a reporter’s privilege under the Military Rules of Evidence, and that the military judge, therefore, erred as a matter of law in quashing the Government’s subpoena.

Background

The appellee is charged with dereliction of duty, voluntary manslaughter, aggravated assault, reckless endangerment, and obstruction of justice, in violation of Articles 92,119, 128, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 892, 919, 928, and 934. The charges against the appellee arise out of his alleged actions during combat operations at or near Haditha, Iraq, on 19 November 2005, following an improvised explosive device (“IED”) attack on his military convoy. The charges allege, inter alia, that the appel-lee killed or participated in the killing of 24 civilian men, women, and children.

Following the IED attack and its aftermath, the appellee made at least three statements regarding his actions and those of his squad. On 21 February 2006, the appellee made a sworn statement to the military officer assigned to investigate the events of 19 November 2005. Appellate Exhibit L at 704. Later, the appellee participated in an interview of several hours duration with CBS news correspondent Scott Pelley. Portions of that interview were broadcast on 18 March 2007, as a 60 Minutes report titled “The Killings in Haditha; Staff Sergeant Frank Wuterich discusses what the Marines did the day 24 Iraqi civilians were killed.” AE LVII at 28-35. Finally, on 6 September 2007, the appellee made an unsworn statement during *513an Article 32, UCMJ, investigation. Id. at 47-65.

On 16 January 2008, the Government issued a subpoena to CBS, pursuant to R.C.M. 703, seeking all of the recorded material from the 60 Minutes interview with the appellee, including the “outtakes.”3 Id. at 25. CBS provided the broadcast segment of 60 Minutes to the Government, and moved to quash the subpoena under R.C.M. 703(f)(4)(C), to the extent that it included the background interview “outtakes” which had not been broadcast. AE L at 630. The military judge, without first reviewing the contested material, held that it did not meet the necessity required by R.C.M. 703(f)(1), and granted the CBS motion to quash. That initiated the Government’s first interlocutory appeal.

In our first consideration of this case, we held that the military judge erred in quashing the Government subpoena without first conducting an in camera review of the outtakes at issue. United States v. Wuterich, 66 M.J. 685, 690 (N.M.Ct.Crim.App.2008). Though vacating our opinion on other grounds, the Court of Appeals for the Armed Forces (CAAF) agreed with our conclusion that an in camera review by the military judge was necessary before he could dispose of the motion to quash. Wuterich, 67 M.J. at 79. The CAAF remanded the case for further consideration by the military judge. Id.

CBS produced the outtakes for the military judge on 11 March 2009. Record at 20. They included eight digital versatile discs (DVDs), each of approximately 30 minutes duration. Following in camera review of the DVDs, the military judge found that three of the eight satisfied the requirements of R.C.M. 703(f)(1). Id. at 52. The military judge characterized the material on the DVDs labeled 3A, 4A, and 8A as cumulative in the aspect that they were consistent with other evidence, and then held that these three DVDs met the R.C.M. 703(f)(1) requirements of relevance and materiality. Id.

The military judge next held that a qualified reporter’s privilege applied to military courts-martial, and that this privilege protected the outtakes from Government subpoenas. Id. at 51, 53 (citing United States v. Caporale, 806 F.2d 1487 (11th Cir.1986), United States v. Burke, 700 F.2d 70 (2d Cir.1983), and United States v. Cuthbertson, 630 F.2d 139 (3d Cir.1980)). The military judge went on to articulate that, in order to overcome this privilege, the Government must demonstrate the material sought by the subpoena is highly material and relevant, necessary or critical to the Government’s case, and not obtainable from other sources. Id. at 53. Applying this test to the three DVDs he had already found satisfied R.C.M. 703(f)(1), the military judge concluded that, although highly material and relevant, the DVDs were not critical to the Government’s case, because they contain information already represented in statements possessed by the Government. Thus, he concluded, the information is obtainable from other sources.4 Id. The military judge then quashed the Government subpoena a second time. The Government again appealed.

Jurisdiction

The Law of the Case

In its treatment of this case, the CAAF determined that the Government’s appeal falls within the ambit of our Article 62, UCMJ, jurisdiction. Wuterich, 67 M.J. at 79. Absent an overruling of that prior decision in this case, we are bound by the CAAF’s determination. CBS nevertheless asserts that such jurisdiction does not extend to a mili*514tary judge’s ruling quashing a subpoena.5 CBS Answer at 1-2; AE L at 320-37. That issue, which CBS wishes to preserve for later adjudication, is not within our cognizance given the procedural status of the case before us. Therefore, consistent with the ruling of the CAAF in this ease, we conclude that we have jurisdiction to consider the Government’s interlocutory appeal under Article 62, UCMJ.

Article 62, UCMJ, Jurisdiction

Leaving aside for the moment the law of this case and its larger precedential impact, we conclude that the legislative history of Article 62 and the CAAF opinions interpreting it establish that “Article 62 was intended by Congress to be interpreted and applied in the same manner as the federal Criminal Appeals Act, 18 U.S.C. § 3731.” United States v. Brooks, 42 M.J. 484, 486 (C.A.A.F.1996). See United States v. Lincoln, 42 M.J. 315, 320 (C.A.A.F.1995). In further explanation of our position, we adopt with approval the analysis of our predecessor panel:

In other words, Article 62 ensures that the Government has the same opportunity to appeal adverse trial rulings that the prosecution has in federal civilian criminal proceedings. United States v. Lopez de Victoria, 66 M.J. 67, 71 (2008). The federal Criminal Appeals Act permits the United States to appeal orders “suppressing or excluding” evidence in criminal eases where “the evidence is substantial proof of a fact material in the proceeding.” 18 U.S.C. § 3731. There is no military case law addressing whether the Government may appeal a decision of the military judge to quash a Government subpoena issued to a non-party. There is significant case law from Article III Courts that have interpreted and applied 18 U.S.C. § 3731. Since Article 62, UCMJ, is intended to parallel that statute, we may look to the federal courts for guidance in interpreting our jurisdictional authority.

Article III courts have broadly construed the scope of 18 U.S.C. § 3731 by utilizing an “effects” test.6 This test focuses on the effect of a court order or ruling rather than its facial categorization or title. United States v. Margiotta, 662 F.2d 131 (2d Cir.1981); United States v. Humphries, 636 F.2d 1172, 1175 (9th Cir. 1980). In United States v. Smith, 135 F.3d 963 (5th Cir.1998), the United States Court of Appeals for the Fifth Circuit was presented with a Government appeal in which the facts and issues were almost identical to those in the case at bar. In Smith, the United States sought a subpoena for the production of a videotaped interview of a criminal defendant conducted by a local television station. That television station moved to quash the subpoena on First Amendment grounds, claiming a “news reporter’s privilege.” The district court quashed the subpoena, and the Government appealed. In concluding it had jurisdiction to decide the matter, the Fifth Circuit held that § 3731 “provides the government with as broad a right to appeal as the Constitution will permit.” Smith, 135 F.3d at 967 (citing United States v. Wilson, 420 U.S. 332, 337, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975)). The court of appeals specifically found it had jurisdiction pursuant to the federal statute because the district court order quashing the subpoena *515effectively “ ‘suppresses or excludes evidence’ in a criminal proceeding” in which “the relevant United States Attorney ‘certifies to the district court that the appeal is not taken for purpose of delay and that the evidence is substantial proof of a fact material in the proceeding in a criminal proceeding.’ ” Id.

Though there is a difference in the wording of Article 62, UCMJ, and its federal civilian counterpart, we find no discernible difference between the effect of the term “suppress” and the term “exclude” as applied to evidence; the effect of both is to deprive the Government of the evidence sought, and its use at trial. More importantly, to limit our jurisdiction based on this minor difference in terms would create a significant discrepancy between when jurisdiction vests in the Article III courts of appeal and in the military appellate courts — a result that would clearly be contrary to the intent of Congress. Brooks, 42 M.J. at 486.

Finally, to invoke jurisdiction under § 3721, the relevant United States Attorney must certify that a federal appeal is taken because the evidence excluded is substantial proof of a material fact. The military system differs in process, but includes essentially the same requirement. Government appeals must be perfected pursuant to the Rules for Courts-Martial, under which the trial counsel must certify that the evidence excluded is substantial proof of a fact material to the proceeding. Rule for CouRts-Maetial, 908(b)(3), Manual FOR Courts-Martial, United States (2008 ed). As well, the Judge Advocate General or his designee must decide whether to file the appeal. R.C.M. 908(c)(6). Thus, we need not be distracted by a preliminary determination of whether the evidence sought is both substantial and material; the certification by the trial counsel and the decision of the Judge Advocate General to perfect this appeal are sufficient to invoke jurisdiction as effectively as does the certification of a United States Attorney under the Criminal Appeals Act.

Wuterich, 66 M.J. at 687-88 (footnote in original).

Accordingly, under the facts of this case, in which the military judge has already ruled the disputed evidence is “highly material and relevant,” we hold that, irrespective of the CAAF decision returning this matter to us, this court would have jurisdiction under Article 62(a)(1)(B), UCMJ, to adjudicate the Government appeal challenging the military judge’s order to quash the Government subpoena for the disputed evidence.

Standard of Review

In disposing of a Government interlocutory appeal under Article 62, UCMJ, we are limited to de novo review of matters of law. R.C.M. 908(c)(2); see also United States v. Cossio, 64 M.J. 254, 256 (C.A.A.F.2007). Absent a holding that the military judge abused his discretion in making his findings of fact, we are bound by those findings and may not substitute our own interpretation of the facts. Cossio, 64 M.J. at 256 (citing United States v. Mizgala, 61 M.J. 122, 127 (C.A.A.F.2005)). However, before accepting the military judge’s findings of fact, we must discern whether those findings are “arbitrary, fanciful, clearly unreasonable, or clearly erroneous.” United States v. Rodriguez, 57 M.J. 765, 770 (N.M.Ct.Crim.App.2002), aff'd, 60 M.J. 239 (C.A.A.F.2004).

To begin, there are no material factual issues in dispute. Neither party contests the findings of the military judge that the appellant participated, with his counsel present, in several hours of interview with a CBS news producer. There is no dispute that the interview was recorded on a series of DVDs, and that a 60 Minutes broadcast was derived from the larger interview. There is no dispute that the appellant has given at least two other statements, and that other witnesses, including those in his squad, have also provided statements. With respect to the DVDs, the military judge’s findings include a brief, general description of the material contained in the DVDs labeled 3A, 4A, and 8A. His descriptions, though brief, are not clearly unreasonable.7 We, therefore, accept these *516findings as a general description of the disputed DVD content. Regardless, the issue on appeal does not turn on a factual determination, but on the military judge’s legal conclusions regarding the discoverable nature of the DVDs, and on his application of a reporter’s privilege to them.

Analysis

Privileges Under Mil. R. Evid. 501

Article 36, UCMJ, 10 U.S.C. § 836, provides that the President “shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts, but which may not be contrary to or inconsistent with [the procedures of courts-martial].” See United States v. Rodriguez, 54 M.J. 156, 157 (C.A.A.F.2000). In promulgating specific rules and privileges, “the purpose of the Military Rules was to provide predictability, clarity, and certainty through specific rules rather than a case-by-case adjudication of what the rules of evidence would be.” Rodriguez, 54 M.J. at 158. Whereas the Federal Rules of Evidence essentially apply those privileges recognized in common law, it was “deemed [that] the approach taken by Congress in the Federal Rules [was] impracticable within the armed forces.” Drafter’s Analysis of Mil. R. Evid. 501 at A22-38. Military justice demands greater clarity as to what material is privileged, and what is not, an assessment that resulted in the enumeration of the privileges found in Mil. R. Evid.,8 Section V. Id.

It is in view of this landscape that the CAAF has cautioned against expansively interpreting Mil. R. Evid. 501 to include privileges unenumerated by the President, notwithstanding the “modest degree of flexibility in the application of federal common-law” or constitutionally rooted privileges permitted by Mil. R. Evid. 501(a)(1) and 501(a)(4). Rodriguez, 54 M.J. at 158; see also United States v. Custis, 65 M.J. 366, 370-71 (C.A.A.F.2007). Military courts have “been provided with a comprehensive set of evidentiary rules with regard to privileges and the exceptions thereto.” Custis, 65 M.J. at 370. Generally, “under our system, it is for the policymaking branches of government to weigh the utility of ... [privileges and exceptions] against the truth seeking function of the court-martial and, if appropriate, make adjustments_” Id. at 371. This approach to privileges in military jurisprudence reflects the United States Supreme Court’s observation that “whatever their origins, these exceptions to the demand for every man’s evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth.” United States v. Nixon, 418 U.S. 683, 710, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974).

The President has not expressly recognized a reporter’s privilege in Mil. R. Evid. 501. See United States v. Davis, 61 M.J. 530, 533 (Army Ct.Crim.App.2005)(citing Rodriguez, 54 M.J. at 160-161, for the proposition that “application of the federal common-law of evidentiary privilege to courts-martial is more likely to be ‘contrary to or inconsistent with’ military practice when the President has ‘occupied the field’ by express enactment of a comprehensive rule of privilege”). It is in the context of this state of the law — mindful of the rules articulated by the President, and the caution, if not restraint, counseled by the Supreme Court and the CAAF — that we turn to consider whether, or to what extent, a reporter’s privilege is applicable to courts-martial, either as required by the Constitution, or as generally recognized in common law. Mil. R. Evid. 501(a)(1) and 501(a)(4); see also Wutench, 67 M.J. at 79. Reporter’s Privilege Under Mil. R. Evid. 501(a)(1)

While the military judge based his application of a reporter’s privilege upon Mil. R. *517Evid. 501(a)(4), CBS argues that recognition of the privilege is rooted in the First Amendment to the United States Constitution and, by extension, Mil. R. Evid. 501(a)(1).9 CBS Brief at 26-33. We disagree.

We look first to the plain language of Mil. R. Evid. 501(a)(1). See United States v. James, 63 M.J. 217, 221 (C.A.A.F.2006). That rule states, in pertinent part: “[a] person may not claim a privilege with respect to any matter except as required by or provided for in ... [t]he Constitution of the United States as applied to members of the armed forces.” Mil. R. Evid. 501(a)(1). We note that the terminal phrase “as applied to members of the armed forces” appears to explicitly limit the rule to those privileges that apply to members of the armed forces. See James, 63 M.J. at 221 (quoting Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146,117 L.Ed.2d 391 (1992))(“A fundamental rule of statutory interpretation is that ‘courts must presume that a legislature says in a statute what it means and means in a statute what it says there.’ ”). However, we decline to comment on the practical effect of that language, as neither the CBS argument, nor our decision in this ease, hinges on a distinct application of the Constitution to the armed forces. Rather, both hinge on the constitutional stature of the privilege asserted by CBS.

CBS argues that the reporter’s privilege is of such significance that it rises to the level of being “required by or provided for” in the constitution. Such a constitutionally based privilege would arguably be incorporated into the Military Rules of Evidence through Mil. R. Evid. 501(a)(1); and, even if the privilege is not anticipated by that rule, CBS argues such a privilege may not be foreclosed by the failure of such a regulation to explicitly incorporate it. CBS Answer at 28. The legal validity of this two-part argument depends upon whether the privilege being asserted by CBS is of such constitutional stature as to at least be “required.” We, therefore, turn to an examination of whether there exists such a First Amendment-based reporter’s privilege.

Broad First Amendment-Based Reporter’s Privilege

The First Amendment, of course, makes no explicit mention of a reporter’s privilege in either the federal courts or in military courts-martial. It provides simply that “Congress shall make no law ... abridging the freedom of speech, or of the press.” U.S. Const, amend. I. To determine if the prohibition on abridging freedom of the press extends to requiring recognition of a reporter’s privilege, we look to constitutional jurisprudence. The United States Supreme Court has held that “neither [reporter nor source] is immune, on First Amendment grounds, from testifying against the other, before the grand jury or at a criminal trial.” Branzburg v. Hayes, 408 U.S. 665, 691, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972)(emphasis in original). According to the majority of the Court, at that time “the only testimonial privilege for unofficial witnesses that is rooted in the Federal Constitution is the Fifth Amendment privilege against compelled self-incrimination.” Id. at 690, 92 S.Ct. 2646. The Court then declined to recognize a broad, constitutionally based reporter’s privilege. Id. at 690-91, 92 S.Ct. 2646.

Branzburg involved a consolidated appeal by three reporters who faced grand jury subpoenas seeking information obtained from confidential sources. Id. at 667-79, 92 S.Ct. 2646. The Court determined that the First Amendment does not protect a reporter from supplying information to the criminal justice system. Id. at 697, 92 S.Ct. 2646. According to the Branzburg Court, “the right to withhold news is not equivalent to a First Amendment exemption from the ordinary duty of all other citizens to furnish relevant information to a grand jury performing an important public function.” Id. We are unpersuaded by CBS’s attempts to minimize the impact of Branzburg,10 CBS Brief at 20-*51825. Branzburg represents the Supreme Court’s sole consideration of the reporter’s privilege, and the Court declined to recognize it as a broadly based First Amendment protection.11 408 U.S. at 689, 92 S.Ct. 2646. We conclude that Branzburg is controlling precedent on this aspect of our analysis. We, therefore, must adhere to the conclusion in Branzburg that there is no broadly based First Amendment reporter’s privilege.

Nevertheless, Branzburg was followed by a number of federal district and circuit court opinions that addressed a reporter’s privilege, and, under certain circumstances, some courts have granted relief to the party invoking such a privilege. It is with these eases that CBS buttresses its argument that there is a reporter’s privilege grounded in the First Amendment. CBS Brief at 15-32. “Grounding” in the First Amendment as a source of some protection under certain circumstances has, indeed, been the basis of the decisions cited by CBS. However, these cases do not support the existence of a broadly based First Amendment privilege, nor of one “required by or provided for” in the Constitution as CBS asserts is recognized by Mil. R. Evid. 501(a)(1). Rather, these cases reflect the incremental development of federal common law as the courts addressed a variety of circumstances, including those under which the Government has improperly burdened the press, and others under which an incidental burden, resulting from the enforcement of criminal laws of general applicability, has been upheld as permissible.

This development of the federal common law may not, and has not, disturbed the binding precedent articulated in Branzburg. The various circuits to consider the issue have properly sought to clarify and balance the competing interests of litigants, including the press, in the absence of a broadly-based First Amendment reporter’s privilege. These cases may, therefore, be used to support the analysis anticipated by Mil. R. Evid. 501(a)(4), to determine whether a reporter’s privilege is “commonly recognized in the federal criminal courts.” To the extent the privilege asserted by CBS is commonly recognized, it may be incorporated into military courts-martial practice. Id.

Reporter’s Privilege Under Mil. R. Evid. 501(a)(4)

Before permitting the application of a privilege not specifically provided for in the Military Rules of Evidence, the precept of Mil. R. Evid. 501(a)(4) requires an evaluation of the common law applied in criminal cases before the United States district courts. We initially note that the notion of federal “general” common law has been largely rejected by the United States Supreme Court. Erie R.R. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). However, the development of evidentiary privileges has been identified as one of the select “havens of specialty” for which federal courts enjoy “express congressional authorization to devise a body of law directly.” Sosa v. Alvarez-Machain, 542 U.S. 692, 726, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004). Specifically “[rjule 501 of the Federal Rules of Evidence authorizes federal courts to define new privileges by interpreting ‘common law principles ... in the light of reason and experience’ ” and *519“[t]he rule thus did not freeze the law governing the privileges of witnesses in federal trials at a particular point in our history, but rather directed federal courts to ‘continue the evolutionary development of testimonial privileges.’ ” Jaffee v. Redmond, 518 U.S. 1, 8, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996)(quoting Trammel v. United States, 445 U.S. 40, 47, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980)).

It is that evolution we now examine to determine if a “reporter’s privilege” is “generally recognized” in the United States district courts. As properly noted by CBS, the formula for determining if a principle is generally recognized is not “mathematical or temporal.” CBS Brief at 36. However, a principle must at least be accepted by more than one federal court in order to be considered “generally recognized.” United States v. McCollum, 58 M.J. 323, 341 (C.A.A.F. 2003); see also United States v. Smith, 30 M.J. 1022, 1026-27 (A.F.C.M.R.1990)(finding it persuasive that all but one of the federal circuits recognized the exception at issue), aff'd, 33 M.J. 114 (C.M.A.1991).

As a threshold matter, we do not place great weight on the distinction emphasized by both parties between federal circuit and district court case law in our analysis. CBS Brief at 34; Government Reply at 8-9. We would expect a district court’s application of a reporter’s privilege to be in conformity with that judicial circuit’s respective precedent, and generally accept a federal circuit court’s ruling as controlling on the district courts over which it exercises appellate jurisdiction. See Reiser v. Residential Funding Corp., 380 F.3d 1027, 1029 (7th Cir.2004).12 Similarly, we place great weight on the holdings of the United States Supreme Court, and our obligation to either follow or distinguish its precedent. See United States v. Allbery, 44 M.J. 226, 228 (C.A.A.F.1996); see also United States v. Davis, 47 M.J. 484, 489 (C.A.A.F.1998)(Sullivan, J., dissenting)(referring to this concept as the “follow it or distinguish it rule of precedent”).

Moving to the evolution of the case law, we begin once again with Branzburg. Contrary to CBS’s contention, Supreme Court rulings since this seminal case evince no retreat from its original holding.13 CBS Brief at 16; see University of Pennsylvania v. Equal Employment Opportunity Commission, 493 U.S. 182, 201, 110 S.Ct. 577, 107 L.Ed.2d 571 (1990)(citing Branzburg approvingly in rejecting an analogous privilege claim grounded in the First Amendment). Furthermore, CBS’s suggestion that the Branzburg Court was influenced by the fact that the reporters in that case were percipient witnesses is not persuasive. CBS Brief at 16 n. 10. While the reporters involved in Branzburg were subpoenaed to testify about what they had observed, the petitioner in the final appeal before the Court, Caldwell v. United States, 434 F.2d 1081 (9th Cir.1970), was the subject of a subpoena for a reporter’s notes and tape recordings of interviews with members of the Black Panther Party. Branzburg, 408 U.S. at 675, 92 S.Ct. 2646. Moreover, in the Branzburg holding, the Court did not distinguish between percipient reporter witnesses and the non-percipient reporter witnesses. Id. Thus, we conclude that Branzburg remains undiminished as controlling precedent.

Next, CBS posits that the principles enunciated in Branzburg ought to be limited to grand juries given the factual background of that case. CBS Brief at 20. To be sure, we do not ignore the fundamental distinction between a grand jury and a criminal trial, nor the distinct procedural demands of both. See United States v. Dionisio, 410 U.S. 1,17, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973)(“Any holding that would saddle a grand jury with minitrials and preliminary showings would *520assuredly impede its investigation and frustrate the public’s interest in the fair and expeditious administration of the criminal laws”). However, we find that a fair reading of Branzburg and its progeny reveals no support for the argument that its principles are limited to the grand jury.14 We agree with the 5th Circuit’s assessment that “[t]he Branzburg Court gave no indication that it meant to limit its holding to grand jury subpoenas:

‘On the records now before us, we perceive no basis for holding that the public interest in law enforcement and in ensuring effective grand jury proceedings is insufficient to override the consequential, but uncertain, burden on news gathering that is said to result from insisting that reporters, like other citizens, respond to relevant questions put to them in the course of a valid grand jury investigation or criminal trial.’

United States v. Smith, 135 F.3d 963, 971 (5th Cir.l998)(quoting Branzburg, 408 U.S. at 690-91, 92 S.Ct. 2646). Indeed, as recently as 2004, the Supreme Court reiterated the application of this principle at criminal trials by holding that “[i]n light of the ‘fundamental’ and ‘comprehensive’ need for ‘every man’s evidence’ in the criminal justice system ... privilege claims that shield information from a grand jury proceeding or a criminal trial are not to be ‘expansively construed, for they are in derogation of the search for truth.’ ” Cheney