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.
Fourth: Local Rule 7 absolutely prohibits "any extrajudicial statement which a reasonable person would expect to be disseminated by means of public communication" (emphasis added) and which falls within any one of the proscribed six subsections in Rule 7 (a)(1)-(6). There is no qualification that these statements must represent a "reasonable likelihood" of interfering with a fair trial to be proscribed.
Id. at 612.
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.