The opinion of the court was delivered by: FREDERIC BLOCK, District Judge
Subsequent to the commencement of the sentencing proceeding of
Peter Gotti on March 26, 2004, the Court received requests from
members of the press to make public all sentencing letters the
Court had received, which included letters from one Marjorie
Alexander, whose name surfaced at the start of the proceeding
when the Court identified her, as well as the defendant's wife,
and his son, Peter Gotti, Jr., as having written such letters.*fn1 Because the press is entitled to a
response from the Court and because the manner in which the Court
views and processes letters to the Court addressing the sentence
of a convicted criminal defendant, and counsels' responsibilities
regarding such letters, are matters of public concern, the Court
has decided to address these important matters in a written
I. The Sentencing Proceeding
At the commencement of the sentencing proceeding on March 26th,
which was a Friday, the Court announced that because of its
complexity, the proceeding would not be completed that day.
Before the Court turned to its sentencing calculations, the
Court, as is its custom, identified the papers contained in its
sentencing file. After the Court referenced the presentence
report and addenda (the "PSR") prepared by the Probation Office
and various submissions from counsel, and elicited assurances
from defendant's counsel, Gerald Shargel, and from the principal
Assistant United States Attorney ("AUSA") representing the
government, that they had received the PSR and their opposing
counsel's submissions, the following exchange occurred:
THE COURT: Now I have the following additional
submissions. I have a number of letters. For example,
the top one is from Marjorie Alexander, I think.
Also, I have Mrs. Gotti I have a letter from
Marjorie Alexander dated May 4th. The first one I
reference[d] is dated August 4th. I have one from Marjorie Alexander dated March 22d 2003. I have a
card here from Ms. Alexander. I have a letter from
Margie Romano dated January 4, 2004. Ms. Alexander is
very supportive of Mr. Gotti and has written many
times to me. I have a letter from Peter Gotti, Jr. I
have more letters from Marjorie Alexander; February
26, 2004. Is there anything else I should have?
MR. SHARGEL: I don't think so, Judge.
[AUSA]: Judge, I don't think we have seen those
letters. Perhaps at some point we could get copies of
them. I don't think it is going to affect our ability
to go forward.
THE COURT: It is up to you. That's why I go through
the protocol. If you would like to take some time to
look at them now, they are basically supportive
letters. They really don't deal with sentencing
[AUSA]: I don't think we need to take the time now. I
think for our records to be complete we should have
them at some point
THE COURT: You can certainly look at them if you
[AUSA]: Thank you.
THE COURT: Now let's go to . . . making our
During a break in the proceeding late in the afternoon, the
Court's courtroom deputy, Michael Innelli, advised the Court that
a reporter from the New York Daily News had asked him whether the
press could see the letters. The Court told Mr. Innelli to advise
the reporter that they would not be released.
II. The Release of the Letters by the AUSA to a New York Post
As recounted to the Court by Mr. Innelli, the AUSA called him
on Monday morning, March 29th, at about 11:00 a.m., to obtain a copy of the
letters. Mr. Innelli copied them and had them delivered at about
3:00 p.m. to the AUSA's office by interoffice mail. He also left
a voice mail message at the AUSA's office at that time stating
that the letters were not for public consumption and were only
being furnished pursuant to the AUSA's request.
Mr. Innelli left work at about 4:30 p.m. that day, but at 6:00
p.m. he checked his voice mail; there was a message from a New
York Post ("the Post") reporter asking whether the letters would
be made available to the press. Mr. Innelli returned the
reporter's call at about 10:00 a.m. the next morning, Tuesday,
March 30th. The Post reporter asked whether the Court had sealed
the letters; Mr. Innelli informed her that the Court had not, but
that they were not public and remained in the Court's sentencing
file. Mr. Innelli then informed the Court that he had sent a copy
of the letters to the AUSA in response to his request, and that
the press continued to inquire about the letters.
At about noon that day Mr. Innelli received a phone call from
the AUSA. According to Mr. Innelli, the following transpired: The
AUSA told him that the First Amendment entitled the press to the
letters; Mr. Innelli disagreed and advised the AUSA that the
Court's normal practice was that personal letters to the Court in
respect to sentencing were not routinely docketed with the
Clerk's Office and remained in the Court's sentencing file. Mr.
Innelli told the AUSA that he would inform the Court of the
AUSA's contention; the AUSA said he would do "whatever the judge
Mr. Innelli immediately related this conversation to the Court
and, at the Court's direction, called the AUSA to tell him that the Court was
taking the matter under advisement and that Mr. Innelli would
inform the AUSA of the Court's decision as soon as it was
rendered. The next day, Wednesday, March 31st, Mr. Innelli
retrieved a voice mail message from the Post reporter inquiring
about whether the Court had made its decision. Meanwhile, the
Court had learned that there was no uniform practice by its
colleagues as to when, if at all, sentencing letters should be
docketed and made public, and was in the throes of researching
III. Ms. Alexander's Suicide and the Disclosure of Her Letters
by the Post
On Wednesday night, the Court learned that Ms. Alexander had
committed suicide. The next morning, Thursday, April 1st, the
suicide was reported in the papers, and the Post printed excerpts
from Ms. Alexander's letters, as well as an excerpt from Mrs.
Gotti's letter. The excerpts from Ms. Alexander's letters spoke
of her personal relationship with the defendant over fourteen
years, railed against his being accused of being a crime boss,
and spoke about her broken spirit and her need for
anti-depressant medication. The excerpt from Mrs. Gotti's letter
appeared under the caption: "Don's Venomous Wife Penned Poison
Letter Asking Judge For Max." New York Post, April 2, 2004, p. 2.
That afternoon the Court called the U.S. Attorney's office to
speak to the AUSA about whether he had any knowledge as to how
the Post had obtained the letters, but reached Sam Noel, the
AUSA's paralegal who had been at the sentencing proceeding. Mr.
Noel candidly told the Court that he had been instructed by the
AUSA in a phone call on Monday that he should copy the letters
once he received them from the Court and give them to the Post reporter.
On Monday morning, April 5th, the AUSA spoke to Mr. Innelli by
telephone and told him that he wished to apologize to the Court
for his behavior. Thereafter, the Court conducted a hearing with
the AUSA in chambers on May 26th, at which time the AUSA appeared
with AUSA Daniel Alonso, representing the Eastern District of New
York's United States Attorney's Office.*fn2
IV. The AUSA's Explanation
The AUSA acknowledged, as Mr. Innelli had reported, that he did
indeed call Mr. Innelli at about 11:00 o'clock on Monday morning,
March 29th, to request that a copy of the letters be sent to his
office. The AUSA explained that he was not in his office at that
time and that the letters should be sent to his paralegal, Mr.
Noel. The AUSA did not tell Mr. Innelli that just before their
conversation, the AUSA had received a call from the Post
reporter. As he recounted: "she called and told me she wanted to
do an article and if I had copies of those letters, could I make
them available to her and I said I would." Hearing Transcript,
May 26, 2004, at 12. His explanation for thereafter asking the
Court for a copy of the letters was as follows:
I had wanted to get copies so that I could review
them before the sentencing was completed and to have our file
complete. So the two, I mean, her call prompted me to
do what I intended to do anyway, which was to make
sure I got a copy of the set. So that's when I called
over to Mr. Innelli.
The AUSA offered that he was "always careful not to turn
anything over [to the press] that wasn't in the public record,"
but that "in [his] mind" the letters were "part of the public
record" and that he "didn't even imagine there was some special
status to these letters." Id. at 16. The AUSA had personally
never "encountered the situation" where "letters were sent
directly to the Court and that there was some different legal
status perhaps to such letters." Id.
Nonetheless, right after the AUSA had asked Mr. Innelli to make
a copy of the letters available to him, he had "reflected some
more on it" and "decided it would be prudent to confirm in fact
[that] the letters were . . . filed with the Clerk of Court and
part of the public record"; consequently, he called Mr. Innelli
again, at around 12:30 or 1:00 p.m. that day, and "left a voice
mail for Mr. Innelli saying [he] just wanted to confirm that
these letters were docketed in the Clerk's Office." Id. at
20-21. However, the AUSA told the Court that before his second
call to Mr. Innelli, the following had occurred: He had called
Mr. Noel and told him that "we are getting copies of the
sentencing letters," and that he should copy them and "give
[them] to the Court Security Officer on the 19th floor so that a
reporter from the Post can pick it up"; he then immediately
called the Post reporter to tell her "that she would be able to
pick up copies later in the day from Mr. Noel." Id. at 22.
The AUSA acknowledged that as soon as he had these second
thoughts about authorizing the release of the letters to the Post reporter
without first ascertaining if they had been docketed in the
Clerk's office, he should have called Mr. Noel at once to tell
him not to release the letters. As he explained:
I viewed this as sort of my big mistake in this
situation because I guess my thought process was that
I would hear back from Mr. Innelli relatively quickly
and that it would take some time before the letters
were copied, routed, sent over to the U.S. Attorney's
Office and that I had a little bit of comfort zone so
if there was a problem, which I certainly didn't
expect there would be, to tell Mr. Noel not to turn
the letters over. I realize now the far better thing
to have done was to have called Mr. Noel immediately
and say "don't turn them over until I hear back from
the Court." And that course of action was something
that just didn't occur to me at that time.
Id. at 21-22.
The AUSA told the Court that he heard Mr. Innelli's voice mail
message that the letters were not to be released at around 4:45
p.m. on Monday afternoon. Id. at 26. He immediately called the
Court Security Officer, who told him that the Post reporter had
picked up the letters about 10-15 minutes earlier. Id. at 28.
The AUSA then called the reporter and asked her "to return the
letters or destroy them because they were given to her by
mistake" and that "the Court wanted them to be confidential."
Id. at 29-30. After checking with her editors, the reporter
called the AUSA back that same day and told him that "she agreed
she would not write anything about this and she would return the
letters and that she would keep it confidential." Id.
The AUSA acknowledged that he spoke to Mr. Innelli the next
day, Tuesday, March 30th, and told him that he "would do whatever
the judge wants." Id. at 35. The AUSA did not recall whether he told Mr. Innelli during that
conversation "that the First Amendment entitled the press to have
the letters." Id. at 36. His recollection was that he told Mr.
Innelli "that it was my understanding of the law that there is an
independent public interest in proceedings being open and that it
was strange to [him] that there would be this category of letters
that could be sort of neither in the public record nor formally
placed under seal that the judge would have in his personal file
in chambers." Id.
In response to the Court's comment that the AUSA knew at that
time that he had already turned the letters over to the Post
reporter, the AUSA told the Court that he was "deeply sorry I
didn't mention to Mr. Innelli I had turned the letters over."
Id. at 37. The AUSA's rationale for not doing so was his belief
"that there was no risk that these letters would get out" because
he "had that promise [from the Post reporter] and [he] just
believed that the problem was solved and there was no issue."
Id. As he explained:
I couldn't imagine that [the Post reporter] would
violate her promise knowing that the Court wanted
them to be confidential, knowing that she there
were a couple of things. I mean, she is a reporter,
has an ongoing relationship with the U.S. Attorney's
Office because we do make courtesy copies of things
available. And the bottom line is I put faith in her
promise. I believed that she would not write those
articles and disseminate those letters.
Id. at 37-38.
Mr. Alonso "shed some light on the background" bearing on the
AUSA's "state of mind," as follows:
The press has a relationship with public offices that
is basically as good as their word. And so when a
reporter says "what you say is off the record or background," those
are their buzz words, essentially the person talking
to them is accepting their promise it's not going to
be quoted in the newspaper the next day. If they
break that promise, it violates that trust and no one
will ever trust them again.
An assistant who received such a promise, again,
acknowledging he should have told [Mr. Innelli], he
apologizes, we apologize, but an assistant who
received such a promise would have good reason to
think that he had undone the damage, whatever damage
had been done, because a reporter would never cut off
their nose to spite their face by breaking such a
It's shocking that she did. But that's another issue
between other parties.
Id. at 38.
The AUSA added: "[The Post reporter] would have had to have
known if she were going to violate the promise that she would put
me in the incredibly difficult position I'm in now and I did not
believe she would do that." Id. at 38-39.
The AUSA told the Court that after learning on Wednesday that
Ms. Alexander had committed suicide, the Post reporter told him
that night that "the suicide of Ms. Alexander ha[d] created
intense pressure in her newspaper to publish an article about
these letters and that they were going to do it." Id. at 40.
In conclusion, the AUSA summed up his thought process as
Your honor, from my point of view this whole thing
has been very . . . traumatizing. I never intended to
do anything to cause matters that shouldn't have been
disclosed to be disclosed. I never intended to have a
lack of candor to the Court. I view this from my
point of view as the result of some mistakes and some misunderstandings about the status