The opinion of the court was delivered by: Garaufis, United States District Judge.
On the first day of trial in the above-captioned case, February 27, 2006, the Government brought to the court's attention an article printed in New York NEWSDAY, a local daily newspaper. The article attributed a statement to all three of defendant Vincent Basciano's attorneys and directly quoted one of them, Barry Levin ("Mr. Levin"). The relevant section of the article stated the following:
Defense attorney Barry Levin, with lawyers Peter Quijano and Ying Stafford, said government witnesses' stories don't mesh.
"The government's main witnesses in regard to the Santoro homicide will each testify to a materially contradictory version of what happened," Levin said yesterday, referring to Massino, Vitale and Cicale.
Anthony DeStefano, First Shots Fired in Mob Trial, NEWSDAY (New York), Feb. 27, 2006. (Court Ex. 5) (Attached as Appendix A). In court, after giving Mr. Levin an opportunity to be heard, I fined him $5000 for violating the rule I had established for this trial that attorneys not speak to the press regarding trial matters. I now file this Memorandum & Order (M&O) to complete the record on this matter.
On January 17, 2006, the first day of jury selection in this case, the New York NEWSDAY published an article quoting Mr. Levin. Of relevance, was the following section of the article Basciano's attorney, Barry Levin, said it was clear that Massino, who became a government informant in 2004, was the source of the new allegations. "If they really had proof of the allegations, they would be in the indictment," Levin told Newsday yesterday.
Anthony M. Destefano, Move to Expand Charges, NEWSDAY (New York), Jan. 17, 2006 (Attached as Appendix B).*fn1 As reporters have been accused of misstating comments by attorneys, I responded by reminding the parties of their obligations to refrain from speaking with the press. I stated I'm going to ask everyone to refrain from making statements to the press regarding issues that need to be decided by the court, and it's appropriate that response be made to the court and not to the public at large.
The statement that is alleged to have been made to Newsday by Mr. Levin presupposes a certain fact, and that is that Mr. Massino is the source of this information, which may or may not be true; it may be in part true and it may be in part not true, and to single out Mr. Massino based on conjecture is also a disservice to the court. It may have been inadvertent, but we should try to avoid making these statements to the media.
The media is extremely adept at picking up on filings to the court; it doesn't take very long, and since this group of lawyers -- and I'm talking about both tables -- is extremely adept at shooting faxes to the courthouse, certainly you could make your position known in a letter to the court so that I don't have the response read to me by someone over the telephone on Monday morning at 7 o'clock based on what is in the newspaper.
Just be very careful about this. (Tr. Proceedings Jan. 17, 2005, at 31-32.) In direct response, Mr. Levin stated, "Yes, your honor." (Id. at 32.)
On January 18, 2006, in the midst of a sealed sidebar discussion, I made further admonishments to the parties, after I learned that defendant Vincent Basciano had spoken directly to the press representatives in the gallery, answering a question asked of a witness that was subject to a sustained objection. (See Tr. Proceeding, Jan. 18, 2006, at 313-316 (sealed Jan. 18, 2006).) At the sidebar conference in response to this conduct, I strongly reminded the parties of the consequences for violating the court's instructions, particularly as they pertained to the practice of putting prejudicial information out to the press. The relevant portions of this discussion are:
The Court: I [have] got to tell you something, I'm not Judge Ito. I'm going to put a gag order on this case very quickly if anything else happens.
No one is going to talk to anybody and if you do you're going to be losing money on this case not ...