U.S. v. Cutler
| Decision Date | 23 September 1993 |
| Docket Number | Nos. 2071-2082,D,s. 2071-2082 |
| Parties | 21 Media L. Rep. 2075 UNITED STATES of America, Appellee, v. Bruce CUTLER, Defendant-Appellee, Jerry Capeci, Tom Robbins, Kevin McLaughlin, Selwyn Raab, Arnold Lubasch, Peter Bowles, Kevin McCoy, Anthony DeStefano, CBS Inc., James Nolan, Karen Phillips and Television Station WNYW, Appellants. ocket 93-6160, 93-6166, 93-6168, 93-6170, 93-6172, 93-6174, 93-6176, 93-6178, 93-6180, 93-6182, 93-6184, 93-6186. |
| Court | U.S. Court of Appeals — Second Circuit |
John J. Gallagher, Sp. Prosecutor, New York City (Kelly D. Talcott, Corbin Silverman & Sanseverino, New York City, of counsel), for appellee.
Frederick P. Hafetz, New York City (Susan R. Necheles, Goldman & Hafetz, Robert F. Katzberg, Kaplan & Katzberg, New York City, of counsel), for defendant-appellee.
R. Bruce Rich, New York City (Eve B. Burton, Weil, Gotshal & Manges, New York City, of counsel), for appellants Capeci and Robbins.
Anthony M. Bongiorno, New York City (Douglas P. Jacobs, New York City, of counsel), for appellant CBS Inc.
Gibson, Dunn & Crutcher, New York City (Robert D. Sack, Edward T. Ferguson, III, Karen A. Odom, New York City, Christopher J. Nolan, Melville, Carolyn Schurr, New York City, of counsel), for appellants Bowles, DeStefano, and McCoy.
George Freeman, Adam Liptak, New York City, for appellants Lubasch and Raab.
Jan F. Constantine, New York City, for appellants McLaughlin, Nolan, and Phillips.
Muriel Henle Reis, New York City, for appellant WNYW (Fox Television Stations, Inc.).
Jonathan C. Scott, New York City, submitted a brief amicus curiae for the New York Ass'n of Criminal Defense Lawyers.
Before: MAHONEY, McLAUGHLIN, and JACOBS, Circuit Judges.
Appellants Jerry Capeci, Tom Robbins, Kevin McLaughlin, Selwyn Raab, Arnold Lubasch, Peter Bowles, Kevin McCoy, Anthony DeStefano, James Nolan, and Karen Phillips (the "Reporters"), and CBS Inc. ("CBS") and WNYW (Fox Television Stations, Inc.) ("WNYW") (collectively the "TV Stations"), appeal from an order entered June 22, 1993 in the United States District Court for the Eastern District of New York, Thomas C. Platt, Chief Judge. The challenged order of the district court (1) denied appellants' motions to quash subpoenas served by defendant-appellee Bruce Cutler in connection with an ongoing criminal contempt proceeding against him; and (2) held appellants in contempt for (a) the refusal of the Reporters to testify and produce unpublished notes concerning (i) interviews of Cutler related to certain published articles about Cutler and one of his clients, John Gotti (the "Articles"), and (ii) statements by government officials (the "Government Officials") connected with the case United States v. Gotti, 90 CR 1051(ILG) (E.D.N.Y.1992) (the "Gotti Case") concerning Gotti or the Gotti Case; and (b) the refusal of the TV Stations to testify and produce video outtakes (i.e., tape footage that was not broadcast) regarding interviews of Cutler that they broadcast (the "Outtakes").
We conclude that the district court properly denied the motions insofar as they sought to quash the subpoenas' demand to produce the Reporters' testimony and unpublished notes regarding statements made by Cutler to the Reporters in connection with the Articles, and the Outtakes. We also conclude, however, that the court erred in denying the motions insofar as they sought to quash the subpoenas' demand to produce the Reporters' testimony and notes concerning statements by the Government Officials concerning Gotti and the Gotti Case. We accordingly affirm in part and reverse in part the order of the district court.
The criminal contempt proceeding that gives rise to this appeal originated with the Gotti Case, in which Cutler served as Gotti's trial counsel until Cutler was disqualified in August 1991. SeeUnited States v. Gotti, 771 F.Supp. 552, 553, 567 (E.D.N.Y.1991). Prior to Cutler's disqualification, Judge I. Leo Glasser, who was presiding over the Gotti trial, had warned counsel for both sides on December 21, 1990, January 9, 1991, and July 22, 1991 to comply with Rule 7 of the Criminal Rules of the United States District Courts for the Southern and Eastern Districts of New York ("Rule 7"). SeeUnited States v. Cutler ("Cutler II "), 815 F.Supp. 599, 601-05 (E.D.N.Y.1993). 1
Rule 7 provides in part:
(a) It is the duty of the lawyer ... not to release or authorize the release of information or opinion which a reasonable person would expect to be disseminated by means of public communication, in connection with pending ... criminal litigation with which a lawyer ... is associated, if there is a reasonable likelihood that such dissemination will interfere with a fair trial or otherwise prejudice the due administration of justice.
Further, the rule specifies that lawyers shall not release extrajudicial statements that a reasonable person would expect to be publicly disseminated concerning, inter alia, "the character or reputation of the accused," "[t]he identity, testimony or credibility of prospective witnesses," or "[a]ny opinion as to the accused's guilt or innocence or as to the merits of the case or the evidence in the case." Id. However, the rule explicitly does not "preclude any lawyer from replying to charges of misconduct that are publicly made against said lawyer." Id.
During the course of his representation of Gotti in the Gotti Case, and following his disqualification, Cutler was quoted in numerous newspaper articles making statements about Gotti and the Gotti Case, and appeared on several television programs during which he commented extensively on those subjects. SeeCutler II, 815 F.Supp. at 602-06. In November 1991, in response to these public comments, Judge Glasser appointed a special prosecutor " 'to prosecute, on behalf of the United States, Bruce Cutler for criminal contempt in that Bruce Cutler intentionally and wilfully violated the orders of this court and Local Criminal Rule 7.' " United States v. Cutler ("Cutler I "), 796 F.Supp. 710, 710-11 (E.D.N.Y.1992) (). In April 1992, Judge Glasser signed an order to show cause why Cutler should not be held in criminal contempt for violation of Judge Glasser's prior directions to comply with Rule 7. See id. at 711; supra note 1 and accompanying text. Judge Glasser then recused himself from the contempt proceeding, which was reassigned by random selection to Chief Judge Platt.
In preparation for a nonjury trial of this matter before Chief Judge Platt, the special prosecutor and defense counsel for Cutler served subpoenas upon the Reporters and the TV Stations. The special prosecutor's subpoenas to the Reporters called for the testimony of each of the Reporters "regarding the statements actually reported and attributed to Bruce Cutler" in the article(s) written by each reporter. His subpoenas to WNYW requested "[c]opies of televised news reports referring or relating to John Gotti that were actually broadcast on Fox's New York City local news program" on dates between December 12, 1990 and August 13, 1991. His subpoena to CBS requested a "copy of the television program '60 Minutes' that was actually broadcast on Channel 2 (New York)" on April 7 and August 11, 1991.
Defense counsel's subpoenas to the Reporters required the production of "[a]ny and all notes of any interviews of any person concerning the [article(s) written by that reporter]" and "[a]ll notes of any statements made by government officials, including but not limited to prosecutors, FBI agents, and any other employees of the United States Attorneys [sic] Office or the Justice Department concerning [the Gotti Case] and John Gotti." Defense counsel's subpoenas to WNYW requested a number of videotapes broadcast by WNYW from local and national news concerning the Gotti Case and related events, and "[a]ll videos, whether broadcast or not, of the Gotti trial or Bruce Cutler" for news programs on four specified dates. Defense counsel's subpoenas to CBS requested "[a]ll videos of segments that were broadcast concerning the John Gotti trial for the period of August 1, 1991 through and including August 12, 1991 from the local and national news," and "[a]ll videos filmed in the production of the '60 Minutes' story called 'Brucification,' broadcast on April 7, 1991 and rebroadcast on August 11, 1991, concerning Bruce Cutler and John Gotti whether or not those segments were actually broadcast." 2
The Reporters and the TV Stations moved to quash or, in the alternative, to modify the subpoenas on the ground that the scope of the subpoenas, particularly those of defense counsel, contravened the reporter's qualified privilege recognized by federal law. 3 In the course of the oral argument before Chief Judge Platt on June 21, 1992 of the motions to quash, Cutler agreed to limit his subpoenas as follows: (1) the Reporters would not be required to produce unpublished notes of interviews of persons other than Cutler and the Government Officials; and (2) the TV Stations would be required to produce outtakes only respecting their interviews of Cutler.
At the conclusion of the oral argument, Chief Judge Platt denied the motions to quash and ordered the Reporters and the TV Stations to comply with the subpoenas, as modified. At an appearance before Chief Judge Platt the following day, the Reporters advised the court that they were willing to testify concerning "the substance and published aspects" of the Articles, but were unwilling to reveal confidential sources or to produce notes or other unpublished materials unless directed to do so by the Second Circuit Court of Appeals. The TV Stations advised the court that they would not disclose the Outtakes to Cutler's defense counsel, but were willing to offer the Outtakes for the court's in camera review on the condition that if the district court found the Outtakes to be relevant, the TV Stations would...
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