Before: McLAUGHLIN, Jacobs, Circuit Judges, and Kaufman, District
The opinion of the court was delivered by: McLAUGHLIN, Circuit Judge.
The underworld exploits of John Gotti and the courtroom legerdemain of his attorney, Bruce Cutler, are now the stuff of legend. Cutler's last appearance on Gotti's behalf was in the United States District Court for the Eastern District of New York (I. Leo Glasser, Judge). Notwithstanding the court's pre-trial admonition and orders to comply with Local Criminal Rule 7 of the Southern and Eastern Districts of New York ("Local Rule 7" ), Cutler spoke repeatedly and heatedly to the media on the merits of the government's case against his client.
Exasperated with Cutler, Judge Glasser issued an order to show cause why he should not be held in criminal contempt. Judge Glasser then recused himself, and the matter was reassigned to then-Chief Judge Platt. After a five-day bench trial, the district court found Cutler guilty of criminal contempt, in violation of 18 U.S.C. § 401(3). The court sentenced Cutler to ninety days' house arrest and three years' probation, and also suspended him from practicing law in the Eastern District of New York for 180 days.
On appeal, Cutler argues that: (1) the orders and Local Rule 7 are unconstitutional; (2) the evidence, under the heightened standard applicable in First Amendment cases, does not support his contempt conviction; and (3) several aspects of his sentence were an abuse of discretion. Because Cutler could have challenged. the orders (and Local Rule 7) by appealing them, or seeking a writ of mandamus or declaratory relief, his constitutional challenge is, collaterally barred. Moreover, the evidence amply supports his conviction. Finally, although aspects of his Probation give us pause, we will not disturb his sentence.
John Gotti was arrested on December 11, 1990, on racketeering charges. The murder of Paul Castellano, a rival mobster, was one of many predicate acts. This marked the fourth time that the government tried to end Gotti's criminal career, the previous attempts having failed. The then-United States Attorney, Andrew Maloney, announced the indictment at a press conference, where he called Gotti a "murderer, not a folk hero" and boasted that this time the government's case, which included extensive wiretap evidence, was much stronger than in the prior trials.
Gotti's lawyer, Bruce Cutler, a member of the New York Bar, countered by calling the prosecutors "publicity-hungry" and on a vendetta to frame his client. He was quoted in New York's four major newspapers-the Daily News, Newsday, the New York Post, and the New York Times. He also gave an interview on Prime Time Live, a nationally-broadcast television show, where-he emphatically denied that Gotti was a mob boss.
Cutler's and Maloney's comments seemed to be in tension with Local Rule 7, to phrase it charitably. That rule provides:
It is the duty of the lawyer or law firm not to release or authorize the release of information or opinion which a reasonable person would expect to be disseminate by means of public communication, in connection with pending or imminent criminal litigation with which a lawyer or law firm is associated, if there is a reasonable likelihood that such dissemination will interfere with a fair trial or otherwise prejudice the due administration of justice ....
From the time of arrest, issuance of an arrest warrant or the filing of a complaint, information or indictment, in any criminal matter until the commencement of trial or disposition without trial, a lawyer or law firm associated with the prosecution or defense shall not release or authorize the release of any extra-judicial statement which a reasonable person would expect to be disseminated by means of public communication, relating to that matter and concerning:.
(1) The prior criminal record (including arrests, indictments or other charges of crime) or the character or reputation of the accused, except that the lawyer or law firm may make a factual statement of the accused's name, age, residence, occupation and family status; and if the accused has not been apprehended, a lawyer associated with the prosecution may release any information necessary to aid in the accused's apprehension or to warn the public of any dangers the accused may present;
(4) The identity, testimony or credibility of prospective witnesses, except that the lawyer or law firm may announce the identity of the victim if the announcement is not otherwise prohibited by law;
(6) Any opinion as to the accused's guilt or innocence or as to the merits of the case or the evidence in the case.
B. The December 20, 1990 "Admonition"
When a detention hearing was scheduled, the district court granted Gotti's motion to close the hearing and seal all evidentiary submissions, including transcripts from the wiretaps. See United States v. Gotti, 753 F.Supp. 443 (E.D.N.Y.1990).
On December 20, 1990, after the hearing, Judge Glasser admonished the parties (and Cutler in particular) to try the case only in the courtroom, not in the press:
I feel very strongly about the conduct of this trial in an orderly and fair way and I feel very strongly about Local Rule 7 of the local rules of this Court .... 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....
My admonition simply is, observe Local Rule 7
The statements that this is a circus, it is a frame up, try your case in the courtroom. Okay I feel strongly about that .... It applies to the government, it applies to the defense. I propose to take such steps as I regard as being appropriate.
Ladies and gentlemen, again, I am serious about fair trials. I am serious about Local Rule 7 . . . . I don't want this trial to be conducted anywhere else but in this courtroom, in accordance with the rules, which are designed to [e]nsure fairness for the government, fairness for the defendant.
Undeterred, Cutler held a press conference outside the courthouse. He declaimed that the government had "thrown the Constitution out the window," mocked the government's witnesses as "bums," and erroneously described the government's tape recordings of wire-tapped conversations as the same ones used in earlier prosecutions. Cutler's performance at the press conference made the local news that night and the tabloids the next morning.
C. The January 9, 1991 Order
Three weeks later, the parties again appeared before Judge Glasser. The judge was not pleased with the continuing swirl of publicity, and again he instructed both parties to comply with Local Rule 7:
. . . Local Rule 7 . . . carefully proscribes out-of-court comments by defense and by prosecutors .
. . . . I want [the leaks] 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 may discover to be responsible for violating those orders accountable. I don't see any need to belabor that.
Nonetheless, the very next day, Newsday quoted Cutler about the tapes. He said the tapes contained denials by Gotti of involvement in the murder of Paul Castellano.
A week later, the government moved to disqualify Cutler and his co-counsel, Gerald Shargel, from representing Gotti during the trial, contending that Cutler and Shargel were "house counsel" for Gotti, and thus likely to be called as witnesses. Although the government filed its motion under seal, the district court elected to hold a public oral argument on the motion. After the hearing, New York's major daily newspapers, the television networks, and the Associated Press (the "media"), supported by the government, moved to unseal the briefs and evidence submitted in connection with the disqualification motion.
Gotti's lawyers opposed the motion, arguing that dissemination of the disqualification briefs and evidence would so taint potential jurors as to deny him a fair trial. The media, in support of the motions, noted that Cutler had already argued Gotti's case to the public and to the potential jury pool by "present[ing] a compelling, sympathetic portrait of a notorious defendant as a victim of prosecutorial zeal" and "government overreaching in the extreme." The court reserved decision on both the disqualification motion and the motion to unseal the briefs and record.
Meanwhile, Cutler continued to ignore the court's direction to comply with Local Rule 7. He was quoted in February, March, and July in all four major New York dailies. In addition, he gave a long interview to Interview Magazine, a glossy magazine, in which he repeated his allegations about government vendettas and accused the government of suborning perjury. He also showed up on 60 Minutes, praising Gotti for his loyalty, integrity, and honesty, denying the existence of the mob, comparing the prosecutors to Senator Joseph McCarthy, and deprecating the tapes. Finally, he appeared on a local television news program, Thirteen Live, where he accused the government of persecuting Gotti.
D. The July 22, 1991 Order
After four letters of complaint from the government about Cutler's extra-judicial statements, the parties appeared before Judge Glasser a third time on July 22, 1991. Judge Glasser once again ordered counsel follow Local Rule 7: "Local Rule 7 . . . is, in essence, a kind of gag order. The thing you ought to say is, there is a case pending, the rules of this Court say I can't. comment on it." Judge Glasser made clear he wanted no more comments to the press.
Days later, the district court disqualified Cutler and Shargel, primarily because they were likely to be called as witnesses at Gotti's trial. United States v. Gotti, 771 F.Supp. 552 (E.D.N.Y.1991). Two days after that, the court unsealed the tapes played at Gotti's detention hearing, noting that Cutler had called into question the integrity of the court and finding that any "[a]additional publicity which may flow from unsealing the record at this time would . . . not give rise to a probability, substantial or otherwise, that ...