The opinion of the court was delivered by: MACMAHON
Petitioners move by order to show cause, pursuant to Rule 42(b), Fed.R.Crim.P., and Rule 43(a), Civil Rules of the United States District Courts for the Southern and Eastern Districts of New York, for an evidentiary hearing to determine whether Bronx District Attorney Mario Merola, his press agent Edward McCarthy, and Bronx Assistant District Attorneys Stephen Bookin and Jay Shapiro should be held in civil and criminal contempt of court for violation of a wiretap order of this court made on December 15, 1983 in a then pending criminal action, United States v. Masselli, 81 Cr. 325 (LFM).
After hearing oral argument on April 28, 1986 and considering the affidavits, documents and memoranda submitted by the parties, we deny and dismiss the petition for the reasons that follow.
The material facts, as petitioners concede, are not in dispute.
The Federal Bureau of Investigation ("FBI") conducted court-authorized electronic surveillance, from January 1979 to June 1979, of Pelligrino Masselli Meats, Inc., 102 Bruckner Boulevard, Bronx, New York, pursuant to 18 U.S.C. §§ 2510 et seq., and made 892 recorded tapes of conversations known as the "Tumcon" tapes. At the conclusion of the FBI's investigation, the Tumcon tapes were placed under seal by Hon. Lawrence W. Pierce, then a United States District Judge for the Southern District of New York.
Three years later, on December 15, 1983, on application of the Bronx District Attorney and the consent of the United States Attorney for the Southern District of New York, we granted an order releasing the Tumcon tapes for use in the investigation in Bronx County of a September 1978 murder of Salvatore Frascone. The order permitted the Bronx District Attorney to copy the Tumcon tapes, logs and indices ("the Title III materials") and to present them to a grand jury subject to the following restrictions:
(3) That no other copies of the Title III materials shall be made without the prior express permission of the Court, except that excerpts may be copied for use by the District Attorney of Bronx County and his staff;
(5) That no other disclosure of the contents of the Title III materials received pursuant to the Order may be made without prior notice to the United States Attorney's Office for the Southern District of New York and without the approval of this Court.
On August 2, 1984, the Bronx District Attorney was granted another wiretap order by Hon. John E. Sprizzo which permitted his use, in any proceeding, of 52 recorded conversations from the Tumcon tapes pertaining to various state law crimes, such as second degree murder and grand larceny. Two months later, on October 2, 1984, the indictment in People v. Schiavone Construction Co., No. 3571/84, Supreme Court, Bronx County, was unsealed, and on October 29, 1984, we granted yet another order permitting the Bronx District Attorney to provide copies of the Title III materials to each of the defendants ("the Schiavone defendants").
On December 20, 1985, after an eleven-week evidentiary hearing in Schiavone, Hon. John P. Collins denied defendants' motion to suppress the Title III materials. Each of the Schiavone defendants then moved in state court, on April 1, 1986, for a severance. In support of that motion, defense counsel Stanley S. Arkin submitted an affidavit containing a footnote citing the prosecution's 366-page transcript of 28 Tumcon conversations entitled, "Excerpts From Conversations Intercepted Pursuant to Court-Ordered Electronic Surveillance of 102 Bruckner Boulevard, Bronx, New York, Between January 5, 1979 and July 8, 1979" ("the Excerpts Transcript").
At a status conference, held on April 3, 1986, Bronx Assistant District Attorney Jay Shapiro told Justice Collins that the Excerpts Transcript had been filed in the Clerk's office that morning as part of the prosecution's response to the severance motion, that he was unaware of any legal ground requiring him to file his complete response at one time, and that he did not at that time know if copies of the Excerpts Transcript had been distributed to reporters. Justice Collins thereupon ordered Mr. Shapiro to retrieve all copies of the Excerpts Transcript and to submit only one to the court under seal.
It was soon learned, however, that Mr. Merola's press secretary, Edward McCarthy, had distributed five copies of the Excerpts Transcript to several reporters only two and one-half hours after the April 3 court filing.
The following day, April 4, 1986, newspaper articles discussing the contents of the Excerpts Transcript and the pending Schiavone case appeared in the New York Times, the Washington Post and the Daily News. The Washington Post characterized the Excerpts Transcript as "a colorful preview of the prosecution's case at the forthcoming trial set for Sept. 2,"
and the Daily News reported that "although portions of the conversations have been used previously in court to uphold the ...