U.S. v. Scarfo, 00-4313
| Decision Date | 19 July 2001 |
| Docket Number | No. 00-4313,00-4313 |
| Citation | 263 F.3d 80 |
| Court | U.S. Court of Appeals — Third Circuit |
| Parties | (3rd Cir. 2001) UNITED STATES OF AMERICA, v. NICODEMO S. SCARFO DONALD F. MANNO, <A HREF="#fr1-*" name="fn1-*">* APPELLANT Argued: |
Appeal from the United States District Court For the District of New Jersey District Judge: Honorable Nicholas H. Politan (D.C. No.: 00-CR-00404-1) [Copyrighted Material Omitted] Robert J. Cleary, United States Attorney George S. Leone, Chief, Appeals Division (argued), Newark, NJ, Counsel for Appellee.
Donald F. Manno, Esq. (argued), Cherry Hill, NJ, Counsel for Appellant.
Before: Scirica, Rendell, and Rosenn, Circuit Judges.
This appeal presents an issue of first impression in this circuit pertaining to a lawyer's right to make extra-judicial statements to the press relating to a former client's pending criminal case. The exchange between the defendant's former lawyer and a member of the press resulted in a newspaper article that raised the District Court's indignation. The Court imposed a gag order against Donald F. Manno, defendant's former counsel; Manno appealed. The primary issue on appeal concerns the First Amendment right of speech. Before reaching that issue, we must consider certain procedural matters concerning the appealability of an oral order, the effect on the record of the District Court's addition to it after a notice of appeal is filed, and the collateral order doctrine. Because we hold that we have jurisdiction over an appealable collateral oral order, and that it was error to issue the gag order, it will be reversed.
On June 21, 2000, a federal Grand Jury in the District of New Jersey issued a sealed indictment charging Nicodemo Scarfo ("Scarfo") and Frank Paolercio with various illegal gambling acts. Donald F. Manno, Esq. ("Manno") made an initial appearance for Scarfo. For reasons not relevant to our decision, the United States moved to disqualify Manno, and the District Court granted the motion.
Subsequently, the Philadelphia Inquirer ("Inquirer") interviewed Manno. On December 4, 2000, over a month after the court disqualified Manno from the Scarfo proceedings, an article appeared in the Inquirer quoting Manno and the government prosecutor. The article concerned a controversial means of surveillance used to acquire evidence against Scarfo.1 Both Manno and the prosecutor predicted the filing of a pretrial motion contesting the legality of the Government's surveillance technique.2
On December 5, 2000, the District Court held a previously scheduled hearing. Citing the Inquirer article, the Court entered an oral order barring "anybody from talking to the press about the motion that I haven't seen and that I don't know anything about." The Court stated that the order applied to Manno, although he no longer represented Scarfo. The order was to last until the Court received the motion and decided it. Manno requested a written order, and the Court promised one. The docket entry for the December 5, 2000, hearing states, inter alia, "ORDERED THAT A GAG ORDER REMAIN IN EFFECT." On December 8, 2000 Manno filed a notice of appeal.
On January 10, 2001, the District Court held another hearing. Manno appeared, along with his replacement, Vincent Scoca, Esq., and the government counsel. Manno and the District Court engaged in a lengthy discussion after which the District Court orally clarified and affirmed its December 5 oral order. The District Court again promised a written order.
On February 9, 2001, Manno filed his brief on appeal with this Court. On March 12, 2001, more than two months after the hearing, the District Court signed an order formalizing its December 5, 2000, and January 10, 2001, oral orders, and making findings of fact. On May 14, 2001, Manno filed a reply brief in response to the Government's brief, discussing, in part, the District Court's written order.
On December 4, 2000, a Philadelphia Inquirer article reported the Government's use of a "keystroke-logging device" on Scarfo's computer. The article stated that the device "allowed the FBI to reproduce every stroke[Scarfo] entered on a computer on which gambling records allegedly were stored." The article predicted that Scarfo's legal challenge of the keystroke-logging device "may create new law."
The article also quoted Manno as stating that The article continued:
Manno contends that federal investigators improperly used a search warrant as authorization to install a keystroke recorder on Scarfo's business computer in the spring of 1999. By monitoring the keyboard during May and June, investigators were able to determine the code and password Scarfo used to access an encrypted program which, authorities suspected, he was storing gambling and loan-sharking records.
Manno said that he was preparing a motion challenging the legality of the surveillance when he was disqualified from the case in October. Manno was barred because in the past he represented a client who expected to testify for the government against Scarfo.
He said he expected the challenge to the surveillance will be raise by whomever Scarfo hires to replace him.
"I don't think there is any case law on this issue, and I hope the fact that it's a so-called organized crime investigation doesn't detract from the fundamental and overriding concern here, which is an individual's right to privacy," Manno said last week.
The article concluded:
Manno would not discuss what his client was storing on the [computer] but said Scarfo was using software known as PGP. "It stands for Pretty Good Privacy," the lawyer said with a chuckle.
The article also quoted the prosecuting attorney:
"I can't talk about any of it," he said, "but I think it's correct to say this is [a] cutting-edge [legal issue]."
On December 5, 2000, the District Court held a hearing originally scheduled to ensure that Scarfo found a replacement lawyer after Manno's October 27, 2000, disqualification. The hearing quickly re-focused on the Judge's reaction to reading the December 4, 2000, Inquirer article. The Judge stated, "I'm barring anybody from talking to the press about the motion that I haven't seen and that I don't know anything about." He continued,
The Judge, apparently perturbed at not having seen or decided any motion papers before their substance appeared in the press, proceeded to flesh out the order. He stated:
Manno: Judge, I assume that your Honor will be so kind as to put into writing the injunction against me?
The Court: If you would like it.
Manno: I would appreciate if you would put that into writing.
Manno: I understand your order. Id. at 20-21.
After the December 10 hearing, the Government proposed a written order embodying the Court's oral order. The District Court rejected the order as inaccurate. See Supp. Appx. 32. On January 10, 2001, the District Court held a hearing concerning Scarfo's retention of new counsel and, again, the Court spent much of the hearing discussing the injunction with Manno:
The Court: It was brought to my attention that there was an article in the Philadelphia paper... in which you gave an interview... in which you talked about the cyber space, or something, and this was ground- breaking material dealing with the government's intrusion upon defendant's rights, et cetera.... I was unaware of that issue, number one; and number two, had not ruled upon that issue, and had not heard argument upon that issue, and had not read one shred of piece of paper on that....
I was upset because, in my judgment, you were trying that motion in front of the press before you gave this Court an opportunity even to see the matter and to me that is what I restrained. Id. at 34.
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