United States District Court, S.D. New York
June 9, 2005.
UNITED STATES OF AMERICA,
ANGELO DIPIETRO ET. AL., Defendant.
The opinion of the court was delivered by: SHIRLEY KRAM, Senior District Judge
OPINION & ORDER
For the second time in as many days, Defendant Angelo DiPietro
moves for a mistrial. The Court will treat the mistrial
applications as one motion.
DiPietro's motion for a mistrial is premised on two grounds:
first, that the use of the robing room and sidebar to conduct
conferences and rule on evidentiary and other issues is improper;
and second, that the Court's comment that the marshals accompany
DiPietro to the sidebar was unduly prejudicial. Both of these
arguments are without merit.
With respect to the use of the robing room and sidebar in this
trial, the Court makes the following observations. First, and
most importantly, no lawyer, including counsel for Angelo
DiPietro, Joseph Bondy, Esq., prior to June 6, 2005, ever
requested that a client be present at sidebar or in the robing
room. The first time such a request was made, it was granted, in accordance with the Court's policy;
however, by not requesting that he be present prior to June 6,
2005, DiPietro's presence was waived. Second, a significant
amount of the conferences and sidebars in this matter have either
been at the request of counsel (with no accompanying request for
clients to also be present) or devoted to the lack of civility,
inappropriate remarks, and defiance of the Court's rulings by
certain defense counsel, including Mr. Bondy.*fn1 Finally,
DiPietro's request, which from this point forward will be
honored, five weeks after the commencement of trial, to be
present at all conferences and sidebars in a very small courtroom
where space and security are serious issues, appears far more a
strategic decision by Mr. Bondy to attempt to create a
prejudicial environment than it does a good faith application for
Angelo DiPietro to assist in his own defense.
The second basis for DiPietro's mistrial application is the
Court's comment that the marshals seated in the back of the
courtroom must accompany DiPietro to the sidebar. Pursuant to
DiPietro's recent request to attend sidebars, when a sidebar was
requested the morning of June 6, 2005, the Court inquired of Mr. Bondy whether he was going to attend
the sidebar "with [his] client and the two marshals." See Tr.
3358. Mr. Bondy objected to the reference to the two marshals,
and now claims that the revelation that there were marshals in
the courtroom has so prejudiced DiPietro that a mistrial must be
granted. Mr. Bondy is seriously off the mark.
First, the comment that the marshals must accompany DiPietro to
the sidebar is in accordance with the Court's policy that the
security of the jury, the lawyers, and Court personnel is
paramount, especially in cases such as this involving multiple
defendants alleged to have committed violent crimes.*fn2 In
this particular case, in such a small courtroom and confined
sidebar area, those security concerns are even more pressing.
Second, the fact that DiPietro has never been handcuffed in front
of the jurors and has been dressed each day in plainclothes
distinguishes this case from Estelle v. Williams, 425 U.S. 501
(1976). Finally, to the extent there was any potential prejudice
to DiPietro, it was cured by the two instructions given by the Court. The first instruction, given only moments after DiPietro
approached the sidebar, was "I wanted to indicate to the jury
that the attorneys have every right to have their client present
at the sidebar when there is a conference which they've asked for
with the court and the marshals come up as well. I want you to
understand that." Tr. at 3364. That afternoon, immediately
following the lunch break, the Court further instructed the jury
I just wanted to say another word to the jury. This
morning, or at least before lunch, I discussed the
issue of the sidebar with you, and we do have a
number of sidebars. And in a case like this where
questions arise, that's bound to happen. The
alternative is to keep sending the jury out of the
room, which really would result in a great
inconvenience to you. Always lawyers are entitled to
have their clients at a sidebar if they so wish, and
the court has no objection to that. But in a trial
like this where it's a relatively small courtroom and
there are so many defendants, it's my policy that
when the defendants and attorneys come up to the
sidebar that marshals be present.
Now, I instruct you that there is no special weight
or significance to be attached to the fact that the
marshals are present at the sidebar. That is just something that I
feel is indicated, and I want to remind you that all
defendants are entitled to a presumption of
Tr. at 3435.
The Court is firmly committed to providing all defendants in
this case with a fair trial. It will not, however, permit thinly
veiled gamesmanship to disrupt the efforts that have been made to
provide a fair and impartial environment for all of the
defendants. The motion is denied.