The opinion of the court was delivered by: CHIN
In 1976, FBI Agent Joseph D. Pistone assumed the identity of Donnie Brasco, a jewel thief and burglar, and infiltrated the Bonanno Crime Family. Remarkably, he remained undercover for some six years.
Pistone told his story from the witness stand in a series of organized crime cases, beginning with the 1982 trial of United States v. Napolitano here in the Southern District of New York. Pistone's efforts led to more than one hundred convictions. He told his story again in the 1987 book "Donnie Brasco: My Undercover Life In the Mafia." And last year, his story was retold in the motion picture "Donnie Brasco," starring Al Pacino and Johnny Depp.
In the present case, plaintiff John Cerasani maintains that he was defamed in the pre-release and official versions of the film, which he claims depict him viciously beating a driver during a truck hijacking, brutally beating the maitre d' of a Japanese restaurant, and participating in the gruesome murder of at least one Bonanno Family Captain. Cerasani denies committing these acts. He argues that he was never charged with participating in or conspiring to commit murder, and that while he was a defendant in United States v. Napolitano, he was acquitted of all charges. Defendants Sony Pictures Entertainment, TriStar Pictures, Mandalay Entertainment, Peter Guber, producers and distributors of the film, move to dismiss plaintiff's amended complaint for failure to state a claim upon which relief may be granted, pursuant to Fed. R. Civ. P. 12(b)(6). Plaintiff cross-moves for leave to amend the amended complaint, pursuant to Fed. R. Civ. P. 15(a).
Defendants' motion raises a host of issues. The principal one is whether Cerasani's reputation is so "badly tarnished" that he is "libel-proof." Although Cerasani was acquitted of all charges in United States v. Napolitano, he was the subject of Pistone's testimony as well as numerous newspaper articles describing the testimony. In addition, Cerasani pled guilty in federal court in Florida in 1985 to racketeering and committing the predicate acts of conspiring to rob a bank and possessing marijuana, cocaine, and heroin with intent to distribute. Cerasani's alleged misdeeds were also described in great detail, and he was identified by name, in Pistone's book, which was first published in 1987, became a best seller, and was republished in 1997. Finally, Cerasani was also recently indicted in this District in United States v. Gangi, a case in which Cerasani and eighteen other defendants are charged with racketeering, extortion, and securities fraud and Cerasani is alleged to be a Mafia enforcer in a scheme to manipulate the stock market.
In view of these indisputable facts, of which I take judicial notice, I hold that Cerasani's reputation is so "badly tarnished" that, even assuming the pre-release and official versions of the film are defamatory, he can suffer no further harm and hence no reasonable jury could award him anything more than nominal damages. Accordingly, I conclude that Cerasani is "libel-proof." For that reason, as well as the other reasons set forth below, defendants' motion is granted and plaintiff's cross-motion is denied.
The amended complaint is dismissed.
a. United States v. Napolitano
Cerasani is not a model citizen. On July 7, 1982, a Federal Grand Jury in this district indicted Cerasani in United States v. Napolitano, et al., No. 81 Cr. 803 (RWS), alleging that he had participated in the criminal affairs of the Bonanno crime family. At the trial, Agent Pistone testified about Bonanno Family soldier "Lefty" Ruggiero's admissions regarding Ruggiero's and Cerasani's roles in the killings of the three mafia captains who opposed the leadership of "Sonny Black" Napolitano:
(United States v. Napolitano, Trial Tr. at 1294:14-18). Agent Pistone explained further that "Lefty said that himself, Boobie, Jimmy Legs, Nicky and Bobby were [at the hits]." (Id. at 1294:24-25). The fact that Pistone's testimony about Ruggiero's admissions squarely placed Cerasani at the scene of the murders was confirmed by his trial counsel's prompt motion for severance, in which he argued: "Now there is testimony which places [Cerasani] at the scene of the crime . . . they have now brought in testimony which certainly makes him an aider and abettor or one of the accomplices or instrumentalities of the homicide." (Id. at 1297:13-18). Though Cerasani was not charged with the homicides, evidence of his participation was admitted with an appropriate limiting instruction. (Id. at 1299: 17-1300:2). Cerasani was ultimately acquitted of all charges against him.
b. Media Coverage of the Trial
Media coverage of the Napolitano trial was extensive. Every major New York City newspaper reported on Pistone's testimony about Cerasani's participation in the murders of the mafia captains. See, e.g. Arnold H. Lubasch, Undercover Agent Describes Discussions of Mob Murders, The New York Times, August 5, 1982, at B1 ("[Pistone] said Mr. Ruggiero, whom he called Lefty, told him that the body was finally moved by John Cerasani, a defendant known as Boobie."); Larry Nathanson and Marvin Smilon, Mobster's Blood Sweat and Tears, How a gangster ordered a rubout, New York Post, August 4, 1982, at 14 (reporting Pistone's testimony that Ruggiero said: "After they shot Big Trin they tried to drag his body and they couldn't and then Boobie (defendant John Cerasani) moved him. It's amazing how strong he is."); Katherine Schaffer and Richard Rosen, Mob-trial tape: Crime didn't pay for one suspect, Newsday, August 5, 1982, at 5 (reporting similar Pistone testimony). The media also reported generally on Cerasani's connections to top mafia bosses. See, e.g., Katherine Schaffer and Richard Rosen, Told capo to murder mob rival: FBI agent, Newsday, August 6, 1982, at 3 (reporting Cerasani's reputed alliance with Bonanno gang leaders, including "Sonny Black" Napolitano, in the gang war in which three mafia captains were killed); Arnold H. Lubasch, Witness Tells of Crime "Crew" and Its Activity, The New York Times, July 29, 1982, at B2 ("the leadership of ["Sonny Black's"] crew was soon taken over by John Cerasani, one of the defendants in the trial").
c. The Florida Racketeering Conviction
On October 26, 1985, in a federal court in Florida, Cerasani entered a plea of guilty to conspiring to violate the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962. (Liebman Decl. Ex. B). The indictment in the Florida RICO prosecution charged Cerasani with being "affiliated with an organization known as the 'Bonanno Family'" and "associated together in fact" with individuals in such other criminal organizations as the "Trafficante Family," the "Luchese Family," the "Gambino Family" and the "Chicago Outfit" in "an enterprise, commonly referred to by them as 'La Cosa Nostra,' the 'LCN' or the 'Mafia' . . . ." (Id. at P 1). The indictment further charged that Cerasani had conspired with, among others, Bonanno Family Captain Dominick "Sonny Black" Napolitano and Bonanno Family Soldier Benjamin "Lefty" Ruggiero -- two of the central Mafia members depicted in the book and the movie versions of Agent Pistone's story -- to conduct the affairs of, and commit crimes with, the Mafia. (Id. at P 1, Count One PP 2, 2(W), 2(X) and 28, Count Two PP 4(E), 4(F)). The indictment alleged that in furtherance of the criminal enterprise, Cerasani committed the predicate racketeering acts of conspiracy to rob a bank and possession with intent to distribute marijuana, cocaine and heroin. (Id.).
d. The New York Drug Possession Conviction
e. The Pending RICO Indictment
Most recently, while the motions in this case were sub judice, Cerasani was arrested and indicted on RICO, extortion and other charges related to his alleged role as a Mafia enforcer in an organized crime scheme to manipulate the stock of HealthTech International, primarily by infiltrating and gaining control of a small brokerage firm. On November 25, 1997, the government unsealed a twenty-five count indictment in United States v. Gangi a/k/a "Rossi," a/k/a "Ross," et al., 97 Cr. 1215 (DC), charging 19 individuals, including Cerasani, with racketeering, conspiracy, securities fraud, wire fraud, extortion, stock manipulation, and bank fraud, all in connection with a scheme to defraud investors and profit from sales of artificially inflated securities of HealthTech International. Cerasani was named in ten of these counts. (See Ind. Counts 1-8, 16-17).
According to the indictment, Cerasani "was a soldier in the Bonanno family" who "used his membership in the Bonanno family to assist the members and associates of the enterprise and others in their efforts to exercise control of brokerage firms out of which they could manipulate the market for securities." (Ind. at P 9(d)). It further charged that Cerasani and others "facilitated these efforts through threats of violence." (Id.). In particular, counts one and two charge Cerasani and others with participation in a racketeering conspiracy and racketeering acts, including the extortion of securities brokers through the use of "actual and threatened force, violence and fear." (Id. at P 22(a) and (b)). In addition, counts three through eight charge Cerasani and others with conspiracy to commit securities fraud, securities fraud and stock manipulation, and conspiracy to commit wire fraud.
In connection with these charges, it is alleged that Cerasani "agreed to threaten and later did threaten" various individuals associated with a particular brokerage. (Id. at P 52). Furthermore, the indictment charges Cerasani and others with "using threats of violence in order to maintain control over those who interfered with their unlawful stock market activities." (Id. at P 77). Finally, count sixteen of the indictment charges Cerasani with conspiracy to commit extortion and extortion, including "obtaining money and property from and with . . . consent of [certain securities brokers] . . . induced by . . . actual and threatened force, violence and fear." (Id. at PP 86-87). Of course, I express no opinion as to the guilt or innocence of those indicted, including Cerasani. See Ives Lab., 638 F.2d 538 at 544 n.8.
The book "Donnie Brasco: My Undercover Life In the Mafia" (hereafter, the "book") was first published in 1987, made the New York Times Bestseller List, and was re-released in paperback in 1997 with a new cover promoting the book's association with the movie "Donnie Brasco." The book is described on its cover as "A TRUE STORY BY FBI AGENT JOSEPH D. PISTONE WITH RICHARD WOODLEY," and is a first person account of agent Pistone's six-year undercover infiltration of the Bonanno Crime Family under the alias Donnie Brasco.
John "Boobie" Cerasani appears on the first page of the book as one of several "wiseguy defendants" in the first mob trial, all shaking their heads in disbelief at the fact that Donnie Brasco was actually a special agent with the FBI and not a fellow member of the Mafia. (Book at 9). Agent Pistone described Cerasani in the book as the "right-hand man" of Dominick "Sonny Black" Napolitano, a captain in the Bonanno Family. (Id. at 257). Pistone explained that:
I had known about Boobie since 1978 because he used to come around Lefty's. Boobie was taller and leaner than Sonny, balding at the temples, with a hawklike face. He was quiet and smart, a chess lover. He was one mean fucker, very closemouthed, a hard guy to get to know. If you got him to talk to you, he was all right. Sonny wasn't close to a lot of people. Boobie was his confidant, capable of doing whatever was needed, which included watching Sonny's back. "I trust Boobie," Sonny says, "and that's it."
(Id.). Throughout the book, Pistone described crimes that Cerasani participated in as a member of Sonny Black's "crew," including drug trafficking, loansharking, illegal possession of firearms, and murder. (Book at 277, 288, 298-301, 328, 372, 382). An FBI surveillance photograph included in the book captured Cerasani talking with Sonny Black, Lefty Ruggiero, and other members of Sonny Black's "crew." (Book at photo insert).
Agent Pistone recounted Cerasani's role in the 1982 murders of three Bonanno Family captains, murders engineered to consolidate Sonny Black's power within the Bonanno Family. (Book at 362-63, 367). Pistone asked Mafia soldier Lefty Ruggiero how he "managed" one victim known as Dominick "Big Trin" Trinchera, "huge as he is?" According to Pistone, Ruggiero responded as follows:
I couldn't move him. Boobie could. Trin was all cut open and bleeding. There was little pieces lying around from the shotgun. Boobie got blood all over him trying to pick him up. I couldn't believe how strong Boobie is. He don't look it. But I was amazed. Boobie could move ...