IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
The appellant hereby petitions this Court to rehear,
en banc suggested, the appellant’s case in response to the Panel’s May
14, 1999 Memorandum. It is astonishing to see the Court affirm
the lower Court without even delving into an area of the law effected by
very new, previously unknown cutting edge technology. Ironically,
even the only legal treatise on the subject of satellite surveillance was
published in 1995, the same year of the Appellant’s allegations.
(See Satellite Surveillance, John Marshall Journal of Computer & Informational
Law. Summer 1995 Vol. XIII N. 4) This 4th amendment topic should
not be overlooked by the Court. For this, and the following reasons
this case should be reheard.
CABLE NEWS NETWORK, INC./HEADLINE NEWS C/O Turner Broadcasting Inc.;
AMERICAN BROADCASTING COMPANY, Plaintiff INC.); KVOA COMMUNICATIONS, INC.;
KGUN INC.; KOLD INC.; KNST INC.; “JOHN DOE Defendants,”
PETITION FOR REHEARING
EN BANC SUGGESTED
SATELLITE SURVEILLANCE ISSUE IS UNPRECEDENTED, THUS THE COURT HAS
OVERLOOKED THE UNDERLYING PRIMARY ISSUE IN THIS CASE.
The Appeal’s panel reasoned that this case
was not suitable for oral argument as the panel cited Fed. R. App.
P. 34(a)(2). (9th Cir. May 14, 1999 Memorandum FN 2.) This
section of the FRAP states : oral argument will be allowed unless (2) the
dispositive issue or set of issues has been recently authoritatively decided.
The unique issue of satellite surveillance has never been before the courts.
Thus, it is apparent the panel, as did the district court, has overlooked
or virtually ignored the facts associated with such an unprecedented case.
As stated in Apellant’s opening brief, it seems clear that the courts must
address the issue of what facts and circumstances must occur for a plaintiff
to be successful in defeating a defendant’s summary judgment motion concerning
satellite surveillance or other prohibited surreptitious eavesdropping
and electronic surveillance. Both the district Court and the Appeal’s
panel declined any comment concerning this issue. Quite frankly,
it seems incomprehensible that the federal judiciary would decline to address
the core issue of this case as surreptitious satellite surveillance
poses severe threats to individual’s 4th amendment and privacy rights.
Satellite surveillance by its own nature is
conducted in secret by those persons involved in the surveillance.
Due to this secrecy, it should be obvious to the Court that any general
denials by the Appellees in their affidavits should NOT be taken as true.
For the Court to accept the submitted affidavits denying any involvement
to surveillance in this case as true appears to send the message that all
one need do is say “nope, we did not conduct and surreptitious eavesdropping,”
which would thus seem to make the Federal Wiretap Statutes useless.
To the contrary, history suggests that broadcasters and newspapers have
periodically been caught violating eavesdropping statutes. One recent
example is the case of Chaquita Banana Co. v. The Cincinnati Enquirer
(1998) in which a reporter of the Enquirer stole voice mails from Chaquita
in violations of Federal Wiretap statutes. Relatedly, in Berger
v. Hanlon 129 F. 3d 505, (9th Cir 1997), CNN employees took part in
obtaining surreptitious conversations, though this Court held such interceptions
were not in violation of the Wiretap Statutes. Finally, in Wolfson
v. Lewis 168 F.R.D. 530 (E.D. PA 1996) reporters from the TV
show Inside Edition were found liable for surveillance and eavesdropping
using “sophisticated video and recording equipment.” While the District
Court did not specify what it meant by “implausible” in this case, and
I can’t read into the Magistrate’s mind , it would seem bad judgment to
believe such a remark was directed to the idea that broadcasters/reporters
would not take part in eavesdropping or surveillance activities.
BOTH THE DISTRICT COURT AND THE APPEAL’S COURT DENIED THE PLAINTIFF/APPELLANT
HEARING TO PRESENT EVIDENCE
The Plaintiff requested an opportunity
to present his evidence to the District Court, and again to the Appeal’s
Court, but in both instances he was never granted such a hearing.
The very purpose of a Court is to uncover the truth and present evidence.
It seems highly contradictory that the courts in this case could make any
rulings without viewing any evidence. There are three primary pieces
of evidence the Court has ignored:
1) The Oprah Winfrey Show broadcast regarding the Appellant.
(PSOF #45, 47 #47 p. 20.)
2) The rebroadcast by Apellee KVOA of Apellant’s employment
interview. (PSOF # 55 #47 p. 22)
3) The broadcast in 1990 by Apellee KVOA regarding the Appellant.
(PSOF # 44 #47 p. 20.)
Even if there were no allegation of electronic eavesdropping, the rebroadcast
of Plaintiff’s employment interview displays minimally an invasion of privacy
sufficient for further discovery. No matter how many vague and dishonest
affidavits KVOA submits, it can not change the fact to what was broadcast
and what the Plaintiff witnessed. At a minimum, these facts
prove the media had an interest in the Appellant. In addition, there
are several other various broadcasts by the various Appellee broadcasters
that the Appellant has cited as example of evidence of surreptitious surveillance,
most likely satellite surveillance. (see PSOF #47) As stated previously,
it seems obvious, that the only way a just and appropriate evaluation of
these facts regarding eavesdropping and surveillance is by the Court viewing
and evaluating such broadcasts in person.
The Appellant has stated in his brief that it was clearly
unjust for the District Court to prohibit the Plaintiff from presenting
evidence before the Court. Similarly, the Supreme Court has held that
Prisoner's pro se complaint seeking to recover damages for claimed
physical injuries and deprivation of rights in imposing disciplinary confinement
should not have been dismissed without affording him the opportunity to
present evidence on his claims. Haines v. Kerner (1972), 404 U.S.
519, 92 S. Ct. 594, 30 L. Ed. 2d 652 ( bold added)
Though the Plaintiff is obviously not a prisoner, he is pro se, and
pro se or not, he should be afforded a hearing. Furthermore, the
Ninth Circuit has held that “pro se pleadings are liberally construed,
particularly where civil rights claims are involved.” Balisteri
v. Pacifica Police Dept. (901 F.2d 696, 1990). This it the most
important aspect in this case, that the Appellant’s facts be taken as true
as it pertains to allegations of satellite surveillance; especially since
such an issue is unprecedented in the courts. Moreover, it would also seem,
that the final judge of such facts should be done by a jury as jurors should
be able to make the final conclusions as to whether evidence presented
satisfies the Apellant’s allegations.
DISCOVERY IS NECESSARY FOR APPELLANT TO PROVE ALLEGATIONS
Basic discovery is necessary for the Appellant to prove the facts
of his case. Simple production of specific broadcasts will demonstrate
to the Court proof to the facts. Specifically, a subpoena to the
Oprah Winfrey Show will demonstrate to the Court the relevance of that
video to this case, even if the Appellant had no tolled claims against
that show. Moreover, commanding of the broadcasts by KVOA will prove
those allegations. It is unbelievable that the Court has, thus far,
simply accepted a deceitful affidavit by KVOA as it relates to this evidence.
The recent National Tobacco Cases in the U.S. have demonstrated the need
for Court ordered production of documents and evidence, which in those
cases revealed secret documents which refuted the lies and dirty secrets
in the tobacco industry. Similarly, there are many dirty secrets
that need to be revealed in the broadcasting industry. It is unbelievable
that the Court could simply accept the vague deceptive denials offered
by the Defendants in their affidavits, particularly to broadcasts the Appellant
has witnessed. Morever, under the unique circumstances, it is just
as unbelievable that the Court could dismiss a complaint alleging surreptitious
surveillance based on simply the opinions, distortions, and apparent denials
by ABC’s and CNN’s legal counsels as no affidavits were offered by
Therefore, the Appellant’s case should be reconsidered
and remanded as previously detailed in his Opening Brief. In addition,
an evidentiary hearing should be permitted as surely an hour of the court’s
time can be allotted in the interests of truth and justice. The Appellant’s
case does not ask the courts to open the doors to a wide influx of surveillance
claims, but rather a window into the ability for a person to seek justice
in a very disturbing area of law and technology.
DATED May 26, 1999, Appellant.
Copies of the foregoing served via U.S. Mail this 26th day of May, 1999
United States Court of Appeals for the Ninth Circuit
P.O. Box 193939
San Francisco, CA 94119-3939
Gary F. Urman/KOLD & KNST
2525 E Broadway, Ste. 200
Tucson, AZ 85716
George O. Krauja/KGUN
33 N. Stone Ave., Ste. 2100
Tucson, AZ 85701
Janice E. Wezelman/KVOA
1 S. Church Ave., Ste. 900
Tucson, AZ 85701
Diane M. Johnsen/ABC
2929 N. Central Ave. #2100
Phoenix AZ 85012
David J. Bodney/CNN & TBS
2 Renaissance Square
40 N. Central Ave., 24th Floor
Phoenix, AZ 85004
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