any stage of the judicial process -- these could be discussed by either party to the proceeding. Thus, defendant's argument with regard to viewpoint discrimination is without merit.
II. Motion to Dismiss Certain Specified Charges in the Order to Show Cause
In his second motion, defendant moves to dismiss certain specified charges in the Order to Show Cause on the grounds that the extrajudicial statements at issue in this case either concerned matters not proscribed by Rule 7 or were in reply to charges of misconduct against him or merely repeated arguments previously made in court. Like defendant's first motion regarding the validity of Judge Glasser's orders, the instant motion raises important factual issues that can only be adequately assessed after considering all the evidence presented at trial. Accordingly, this motion must be denied.
Defendant argues that Paragraphs 5(b), (c), (f), (i), (j), (k), (l), (n), and 7(d)
do not, on their face, violate the Order to Show Cause because they do not concern the "character and reputation of Gotti, his guilt or innocence and the merits of and evidence in United States v. Gotti" as proscribed by Local Rule 7. (Order to Show Cause PP 5, 7.) According to defendant, the extrajudicial statements set forth in the Order to Show Cause are mere fragments taken out of context so as to distort their true meaning. A review of the articles from which the offending statements were taken purportedly reveals that they do not concern any of the prohibited topics, but rather, one of the six following issues, permitted under Rule 7: (1) the Government's motion to hold Gotti in preventive detention pending the trial and how, in defendant Cutler's opinion, such detention violates the Constitution; (2) the Government's motion for an anonymous jury; (3) other trials, including the prior Gotti trials; (4) statements about Gotti unrelated to the evidence in United States v. Gotti; (5) the RICO statute and defendant Cutler's view of the tactics employed by the Government in its aggressive prosecution of organized crime; and (6) comments by defendant Cutler pertaining to others' opinion of him.
Defendant further argues that Paragraphs 5(e), (g), (h), (j), 7(a), (b), (c), (d),
(f), and (g) concern extrajudicial statements explicitly allowed by Rule 7 in that they constituted either a response to charges of misconduct or a repetition of an argument made by the defense in open court. Local Rule 7's safe harbor provision provides that "nothing in this rule is intended to . . . preclude any lawyer from replying to charges of misconduct that are publicly made against said lawyer." Rule 7 also provides that the "foregoing [six categories of prohibited extrajudicial speech] shall not be construed to preclude the lawyer or law firm . . . from quoting or referring without comment to public records of the court in the case".
In response, the Government contends that these statements were all part of defendant's carefully crafted strategy to influence the jury pool by painting a stark portrait of corrupt Government prosecutors, seeking to frame Gotti with false and perjured evidence. As such, the statements violate Rule 7 by improperly characterizing the evidence and disparaging the merits of the Government's case.
The arguments presented by each side are indicative of the complex factual questions this Court must endeavor to resolve.
Assuming arguendo that there was at least one order to comply with Rule 7, we must still address whether there was an actual violation of the terms of that order and whether the violation was intentional. See United States v. Turner, 812 F.2d at 1566-68. Such an assessment will necessarily raise questions regarding the context of the extrajudicial statement with respect to the article or television program in which it was presented and to the stage in the criminal proceeding at the time the statement was made. In connection with such an inquiry, this Court might be aided by testimony from the journalists reporting the offending statements.
Similarly, this Court must consider defendant's wilfulness in making the statements and would benefit from possible testimony by defendant regarding his intentions, as well as testimony regarding the Government's extrajudicial statements and other media reports that might elucidate defendant's mindset. Accordingly, defendant's motion to dismiss certain specified charges in the Order to Show Cause must be denied.
For the reasons set forth above, defendant's motion to dismiss the Order to Show Cause in its entirety and his motion to dismiss certain specified charges in the Order to Show Cause must be and hereby are denied.
Thomas C. Platt
Chief Judge, U.S.D.C.
Dated: Uniondale, New York
March 8, 1993