The opinion of the court was delivered by: THOMAS C. PLATT
Defendant Bruce Cutler moves to dismiss the criminal contempt charges in their entirety or, in the alternative, to dismiss certain specified charges in the Order to Show Cause charging defendant with criminal contempt of Court in violation of 18 U.S.C. § 401(3). For the reasons set forth below, these motions are denied.
This proceeding arises out of a series of extrajudicial statements made by Bruce Cutler during Cutler's representation of John Gotti in the criminal matter United States v. Gotti. The case was the subject of virtually unprecedented media coverage, with both Mr. Cutler and the Government vying for the microphone. The Government urges that, although much of the evidence in the Gotti case was sealed at defense counsel's request, Cutler waged an intensive media campaign to shape the public's perception of John Gotti and the evidence against him. The campaign was intended to create an "aroma" or pervasive theme that John Gotti was the victim of overzealous and corrupt Government prosecutors. It was statements made by Cutler in the course of this media campaign that the Government charges ran afoul of Local Rule 7 and, consequently, Judge Glasser's three statements regarding the local rule which the Government claims to be orders.
A. December 21, 1990, "Admonition" to Comply with Rule 7
On December 16, 1990, defense counsel Gerald Schargel requested that Judge Glasser close the detention hearing for Gotti and his co-defendants, Salvatore Gravano, Frank Locascio and Thomas Gambino, in order to prevent the prospective pool of jurors from becoming contaminated by the deluge of pre-trial publicity. (Appendix to Mem. of the U.S. in Opp. to Def.'s Mot. to Dismiss Criminal Contempt Charges [hereinafter "Gov't.'s Appendix"], Ex. 1.) The Government opposed closure on the ground that a fair trial could be assured by voir dire or other available means. (Gov't.'s Appendix, Ex. 2.) The media agreed, noting that the publicity surrounding the case was already "so widespread" that closure would have little effect. (Gov't.'s Appendix, Ex. 3.)
After so ruling, Judge Glasser admonished counsel for both sides to comply with Local Rule 7:
But I feel very strongly about the things I said out in that courtroom this morning. I feel very strongly about the conduct of this trial in an orderly and fair way and I feel very strongly about Rule 7 of the local rules of this Court with respect to fair trial and free press.
That rule spells out, I believe, in some detail, what it is that it is appropriate for defense lawyers to be commenting about. You, Mr. Cutler. What it is appropriate to be talking to the press about, what it is appropriate for the government to be talking to the press about, whether it is this case or any other case, shouldn't be tried in the newspapers. It should be tried in the courtroom. . . .
My admonition simply is, observe Rule 7 and observe the ABA standards for criminal justice which in Chapter Eight sets out the appropriate considerations with respect to fair trial and free press.
The statements that this is a circus, it is a frame up, try your case in the courtroom.
Okay I feel strongly about that . . . .
Ladies and gentlemen, again, I am serious about fair trials. I am serious about Rule 7. I am serious about the ABA standards of criminal justice. I don't want this trial to be conducted anywhere else but in this courtroom, in accordance with the rules, which are designed to insure fairness for the government, fairness for the defendant.
Defendants are entitled to a fair trial. So are the people, so is the government.
I am going to make every effort to assure that this is going to be accomplished, that goes for conduct outside and inside the courtroom.
(Dec. 21, 1990, Tr. at 44-46, Gov't.'s Appendix, Ex. 4 (emphasis added).)
Neither the Government nor defense counsel objected to this "admonition". On the following day, however, Cutler was quoted in no less than three newspapers, commenting on the prosecution of John Gotti. In the New York Daily News, Cutler stated that the Government witnesses were the "same bums" and the Government tapes the "same tapes" used in previous cases against Gotti and that the tapes should not therefore present a problem to the defendants' winning the case. (Order to Show Cause P 5(a).) In New York Newsday, Cutler commented that the Government has "thrown the Constitution out the window when it comes to Mr. Gotti." (Order to Show Cause P 5(b).) In the New York Post, Cutler similarly noted that "they threw the Constitution out the window when it comes to Mr. Gotti." (Order to Show Cause P 5(c).)
B. January 9, 1991, "Instruction" to Comply with Rule 7
The parties again appeared before Judge Glasser on January 9, 1991, at which time the Court expressed its dismay that, despite its best efforts, information revealed during the closed detention hearing had nevertheless found its way into newspapers and on television. Judge Glasser instructed the parties that his "orders" were to abide by Local Rule 7:
. . . I called counsel into chambers at the end of the first day in which we all met. I made it very clear that I feel strongly about not trying this case in the newspapers for the reason that I think the Sixth Amendment right is a significant one.
I made it clear that there is a rule, it's Local Rule 7 which carefully proscribes out-of-court comments by defense and by prosecutors.
. . . I don't know where that emanated from, but I want it to stop. . . .
I've made my position clear and I'll exercise all the power which is at my disposal to do whatever I can to enforce the orders of this Court and to hold those persons who I discover to be responsible for violating those orders accountable. I don't see any need to belabor that.
(Jan. 9, 1991, Tr. at 44-45, Gov't.'s Appendix, Ex. 5 (emphasis added).)
As with December 20, 1990, "admonition", neither defense counsel nor the Government objected to the Court's "order". Nevertheless, on the following day, Cutler was quoted in New York Newsday, commenting that the Government's tapes contained denials by Gotti that he had been involved in the murder of Paul Castellano and that Gotti "had nothing to do with [the Castellano homicide]. So why wouldn't there be denials?" (Order to Show Cause P 5(d).)
On January 18, 1991, the Government moved to disqualify defense counsel from representing the Gotti defendants during trial. The motion and its opposition papers were filed under seal in keeping with the intended effect of the Court's December 21, 1990, order preventing disclosure of all evidence offered at the detention hearing. Nevertheless, Judge Glasser decided that oral argument on the motion would be open to the public.
In response to these developments, media coverage of the Gotti continued unabated. Indeed, from the outset, the media had participated in the Gotti case as a party of sorts, filing various briefs outlining its interest in full disclosure of all the facts surrounding the prosecution. On March 15, 1991, the media moved for an order unsealing the legal memoranda and evidence submitted with regard to the disqualification motion. (Gov't.'s Appendix, Ex. 8.) The media argued that unsealing was warranted because the open oral argument on February 22, 1991, had already allowed for widespread disclosure of much of the information pertaining to the pending disqualification motion. As with the detention hearing, the Government supported the motion to unseal, whereas defense counsel argued that it would violate the Gotti defendants' Sixth Amendment right to a fair trial by prejudicing potential jurors in the case. (Gov't.'s Appendix, Exs. 6, 9.)
While the Court considered the Government's disqualification motion, Cutler did little to curb his contact with the press. On January 23, 1991, Cutler was quoted in The New York Times as saying that the "Government will stop at nothing in their quest to convict Mr. Gotti". (Order to Show Cause P 5(e).) On February 7, 1991, he told New York Newsday that the Government tells "everyone and anyone that the key to open their cell door is giving false evidence against Mr. Gotti." (Order to Show Cause P 5(f).) On February 23, 1992, Cutler was quoted in New York Newsday, commenting that "my position is that the government will do anything to convict these defendants." (Order to Show Cause P 5(g).) On February 28, 1991, Cutler commented to the New York Post that the Government's "tapes do not say what Mr. Gleeson [the prosecutor] says they say, and the conversations that he put forth are totally and deliberately taken out of context by the Government." (Order to Show Cause P 5(h).)
Other comments to the press by Cutler in the wake of Judge Glasser's first two statements included:
- On March 7, 1991, Cutler was quoted in The New York Times, commenting that the Government is waging a "continuing vendetta to create cases against John Gotti." (Order to Show Cause P 5(i).)
- On April 7, 1991, Cutler was featured on the television program 60 Minutes, stating that he admired Gotti for his "loyalty, honesty, integrity", that Cutler had not "seen any evidence of what the Government calls an 'Italian-American Mafia' in the United States", that the Government's tapes "don't say what the prosecutor says they say", and that the Gotti prosecution was an example of "McCarthyism" (Order to Show Cause P 5(j).)
- On July 14, 1991, Cutler was quoted in The New York Times, stating that the prosecutors "lie" when "they claim they want a fair fight" and that the prosecutors "would like a rigged deck" because they "are afraid of a fair and good fight". (Order to Show Cause P 5(l).)
- On July 20, 1991, Cutler was quoted by the New York Daily News as saying that "John Gotti is loved more than anyone else in the city. No one but the government wants to hurt him." (Order to Show Cause P 5(m).)
- In the August 1991 issue of Interview Magazine, which was available on the newsstands prior to July 22, 1991, Cutler commented that "people think and believe that [Gotti is] the subject of a relentless vendetta", that local law enforcement agencies are not "in the business of creating and orchestrating crime the way the federal government does", that Cutler has not "seen any proof of an Italian-American Mafia structure in this country", that the Government goes to prisons and asks inmates "to tell us what you know or what you want to tell us about John Gotti" and "if you sing our song about John Gotti, you'll be on the beach someplace, not in jail", and that "this is what was going on in the McCarthy era". (Order to Show Cause P 5(n).)
The Government responded to these extrajudicial statements by seeking sanctions against Cutler.
(Gov't.'s Appendix, Ex. 12.) Cutler opposed the imposition of sanctions, arguing that his comments were not reasonably likely to interfere with a fair trial or otherwise prejudice the administration of justice and therefore, did not violate Local Rule 7. (Gov't.'s Appendix, Ex. 13.) He further argued that the comments attributed to him were incorrect or taken out of context. Finally, he argued that Rule 7's "reasonable likelihood" standard was an unconstitutionally broad restriction on attorney speech and that the comments should be assessed according to a "clear and present danger" standard.
C. July 22, 1991, Order to Comply with Rule 7
On July 22, 1991, Judge Glasser instructed the parties to appear before him to discuss the extensive pre-trial publicity regarding the Gotti case and, in particular, Cutler's comments to the media. During the conference, Judge Glasser ordered counsel in no uncertain terms that they must comply with Rule 7 or face the Court's contempt powers:
What I am trying to do, I am just putting you on notice. I wanted to tell you, too, I don't want to have to say it twice, the next time I have to say it I am going to ask to ...