Cerasani v. Sony Corp.
| Decision Date | 15 January 1998 |
| Docket Number | No. 97 Civ. 2372(DC).,97 Civ. 2372(DC). |
| Parties | John CERASANI, Plaintiff, v. SONY CORPORATION, Sony Pictures Entertainment, Tristar Pictures, Mandalay Entertainment, Peter Guber, Mark Johnson, Barry Levinson, Gail Mutrux, Patrick McCormick, Alan Greenspan, Mike Newell and Paul Attanasio, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Slotnick, Shapiro & Crocker, L.L.P. by Barry I. Slotnick, J. Lawrence Crocker, Michele Levy, New York City, for Plaintiff.
Parcher, Hayes & Liebman, P.C. by Jonathan Liebman, Orin S. Snyder, New York City, for Defendants.
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.
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:
[Lefty] said there were four people in on the hit, and he said that he had the Trin in on it, that he was all cut up. That he tried to move him, but he couldn't, and he was amazed how strong Boobie [Cerasani] was, because Boobie was able to move him.
(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.
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 ); 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 (); 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").
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 ¶ 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 ¶ 1, Count One ¶¶ 2, 2(W), 2(X) and 28, Count Two ¶¶ 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.).
In May 1994, Cerasani pleaded guilty in New York Supreme Court to Attempted Criminal Possession of a Controlled Substance in the Fifth Degree, and was sentenced as a predicate felon to one and one half to three years. See People v. Cerasani, No. 3271/92 .
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...
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