The opinion of the court was delivered by: THOMAS C. PLATT
By Order to Show Cause dated April 27, 1992, with a statement of charges and exhibits annexed, defendant was charged with criminal contempt of this Court in violation of 18 U.S.C. § 401(3) for having knowingly and wilfully violated and disregarded this Court's orders (Glasser, J.) of December 21, 1990, January 9, 1991 and July 22, 1991 directing counsel to comply with Local Criminal Rule 7 of the Eastern District of New York.
Disciplinary proceedings, particularly contempt proceedings involving attorneys, are one of the more unpleasant tasks confronting Judges with plenary powers. This case is no exception. On the one hand, the Judge presiding on the case must take every measure at his or her command to protect the authority of the Court and the integrity of the entire judicial process and it must also make sure that conduct and statements by attorneys and their clients conform with their orders, directions and instructions and not degrade the profession or disserve justice. On the other hand, the Court must be mindful of an attorney's duty to prosecute or defend vigorously a client's case, rights, position and status to the full extent of his or her ability within the parameters of reasonable behavior. In this case, the tension between these opposing considerations is heightened by the notoriety of the defendant and his client and the publicity surrounding the case in which the acts complained of occurred. In reaching its decision herein and on the prior motion to dismiss, this Court has been ever conscious and mindful of these factors and to the best of its ability has given them every possible weight and consideration.
Defendant in this action, Bruce Cutler, Esq., represented John Gotti in the criminal matter of United States v. John Gotti, 90-CR-1051 (ILG). From the date of the indictment on, there was voluminous press on that case, and in the various pre-trial conferences on the dates above, Judge Glasser of this Court expressed his concern that the case be tried in the courtroom and not in the press and directed the parties to refrain from commenting to the press in a way which was violative of Local Criminal Rule 7 of the Eastern District of New York.
Despite this, John Gotti's attorney, Bruce Cutler, was quoted extensively in the local media both before and after Judge Glasser's warnings and orders. Finally, on November 4, 1991, Judge Glasser appointed a special prosecutor and on April 27, 1992, signed an Order to Show Cause as to why Bruce Cutler should not be held in criminal contempt in violation of 18 U.S.C. § 401(3). This case was then assigned by random selection to the undersigned.
Prior to the trial in this case, defendant moved to dismiss the criminal contempt charges in their entirety or, in the alternative, to dismiss specified charges contained in subparagraphs 5(b), (c), (d), (f), (i), (j), (k), (l), (n) and 7(d) of the Order to Show Cause on the basis that they do not, on their face, concern the "character and reputation of Gotti, his guilt or innocence and the merits of and evidence in United States of America v. Gotti " as proscribed by Local Rule 7 and to dismiss the charges of subparagraphs 5(e), (g), (h), (j), 7(a), (b), (c), (d), (f) and (g) contending that they constitute permissible statements responsive to charges of misconduct by the attorney.
In our Memorandum and Order denying the defendant's motion to dismiss the charges in their entirety, dated March 8, 1993, United States of America v. Bruce Cutler, 815 F. Supp. 599 (E.D.N.Y. 1993) (familiarity with which is presumed), we set forth the basic undisputed facts in this proceeding and we held that:
First: Judge Glasser's July 22, 1991 directive (concededly) amounted to an order for criminal contempt purposes and a decision with respect to his December 21, 1990 and January 9, 1991 directives should await the conclusion of the trial. Cutler, 815 F. Supp. at 608-609.
Second: Defendant is collaterally barred from attacking the constitutional validity of Local Rule 7, except on the grounds of transparent invalidity or that Judge Glasser lacked subject matter jurisdiction. Id. at 610-611.
Third: Local Rule 7 is not transparently invalid on the ground of its alleged (i) inherent vagueness, (ii) restriction on attorney speech or (iii) viewpoint discriminatory provisions. Id. at 611-616.
Nothing at or subsequent to the trial has persuaded the Court that the above-stated decisions were in any respect incorrectly made. Nonetheless, the Government urges the Court also to consider and decide whether the cited statements and conduct violate not only one or more of the six specific prohibitions but also, arguendo, the "reasonable likelihood" test contained in the first general paragraph.
This case was tried before the Court without a jury
over a period of five days on June 21, 22 and 23, October 12 and December 9, 1993.
In order to sustain a conviction for criminal contempt, the Government must establish each of the following elements beyond a reasonable doubt: (1) that the Court gave the defendant certain orders; (2) that the defendant disobeyed or disregarded those orders; and (3) that the defendant acted wilfully and knowingly in disobeying the Court's orders. United States v. Turner, 812 F.2d 1552, 1563 (1lth Cir. 1987); United States v. Burstyn, 878 F.2d 1322, 1324 (11th Cir. 1989) 1. The Court Gave Defendant Definite Orders on January 9 and July 22, 1991
As we stated at length in our earlier opinion, to constitute a finding of contempt, the order in question must be unambiguous, definite and specific. See Cutler, at 607-608. See also United States v. Charmer Industries, Inc., 722 F.2d 1073, 1079 (2d Cir. 1983); UFI Razor Blades, Inc. v. District 65, Wholesale, Retail, Office and Processing Union, 610 F.2d 1018, 1024 (2d Cir. 1979); United States v. Masselli, 638 F. Supp. 206, 213 (S.D.N.Y. 1986); International Longshoremen's Association v. Philadelphia Marine Trade Association, 389 U.S. 64, 76, 88 S. Ct. 201, 208, 19 L. Ed. 2d 236 (1967).
It is crystal clear that Judge Glasser believed his statements to counsel with respect to Rule 7 on both December 21, 1990 and January 9, 1991 were "orders" and that they indeed represent sufficiently definite and specific orders. He specifically used that word on January 9, 1991 in communicating his pointed directive.
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 very clear that there is a rule, Local Rule 7, which carefully proscribes out-of-court comments by defense and prosecutors.
Government Exhibit 13A at 44-45, 50: Gotti transcript of January 9, 1991.
Accordingly, this Court has no difficulty in holding that Judge Glasser's excerpted and quoted statements on January 9th constituted a clear, unambiguous, definite and specific order for criminal contempt purposes, particularly in light of what had occurred on December 21st. On that date, he said,
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 ...