United States v. Cicilline

• Decision Date: 12 September 1983
• Docket Number: Crim. No. 83-037-02S.
• Citation: 571 F. Supp. 359
• Parties: UNITED STATES of America v. John F. CICILLINE.
• Court: U.S. District Court — District of Rhode Island

571 F. Supp. 359

UNITED STATES of America v. John F. CICILLINE.

Crim. No. 83-037-02S.

United States District Court, D. Rhode Island.

September 12, 1983.

Edwin J. Gale, Spec. Atty., U.S. Dept. of Justice, Lincoln C. Almond, U.S. Atty., Providence, R.I., for the Government.

Joseph Balliro, Boston, Mass., John Sheehan, Providence, R.I., for defendant Cicilline.

William Kunstler, New York City, Edward Romano, Providence, R.I., for defendant Marrapese.

Joseph L. DeCaparole, Providence, R.I., for defendant Scivoli.

OPINION

SELYA, District Judge.

Defendant (John F. Cicilline) has moved to suppress as evidence in the criminal case against him a tape recording of a conversation between Cicilline and a prospective trial witness (William G. Smith) obtained on January 21, 1983 at the United States Courthouse, Providence, Rhode Island. Defendant bases his motion on Rule 43(a) of the Local Rules of the United States District Court for the District of Rhode Island ("Local Rule 43(a)"), which, inter alia, prohibits the making of recordings or broadcasts in the course of or in connection with any court proceedings or on any floor of the building in which this court's sessions may be held.

The facts relevant to this motion are susceptible to succinct summary. Cicilline was trial counsel for co-defendant Marrapese in the case of United States v. Marrapese, CR. No. 82-49 (D.R.I.). During the course of that trial, Marrapese allegedly contacted Smith regarding the possibility of providing testimony in support of Marrapese's alibi. On January 20, 1983, Smith was allegedly invited to defendant's law office to discuss his hoped-for testimony with defendant and with Marrapese. Smith went to the office. The government alleges that during the course of the evening, Smith was directed to provide false testimony at the trial (which was then in progress). Smith had, however, contacted government agents before meeting with Cicilline and Marrapese, and had been, it is asserted, utilizing a body recorder when he sojourned to Cicilline's office.¹

Subsequent to that meeting, Smith met with a Special Attorney, United States Department of Justice, and with several special agents of the Federal Bureau of Investigation ("FBI"). With Smith's consent, it was agreed that he would spend the night at his home in the company of FBI agents who would provide Smith and his family with security. It was further agreed that, prior to departing his home on January 21, 1983, he would again don a body recorder to enable him to record, if possible, further conversations which he might have with the defendant or with others involved in the allegedly ongoing attempt to suborn perjury. As he had been directed, Smith arrived at the Courthouse at approximately 11:00 a.m. on January 21, 1983, at which time he met with Cicilline and had further conversations with him. Thereafter, over the next four hours or so, Smith remained in the Courthouse and occasionally spoke with the defendant. Smith was able to record only one of these conversations. He did so in a third-floor area proximate to two regularly-utilized courtrooms (in one of which Marrapese's trial was being heard). It is that tape which is the subject of this motion.

Local Rule 43(a) provides:

Except as specifically provided in these rules, no person shall take any photograph, make any recording, or make any broadcast by radio, television, or other means in the course of or in connection with any proceeding in the court, on any floor of any building on sic which proceedings of this court are, or in the regular course of the business of the court may be, held.

Defendant claims that by equipping Smith with a body recorder and directing him to record any conversations which he might have with the defendant at the Courthouse on January 21, 1983, the government violated Local Rule 43(a). Defendant therefore seeks suppression of both the interdicted tape recording of the January 21 conversation and all evidence derived directly or indirectly therefrom; defendant further urges the exclusion from evidence of Smith's testimony as to all conversations purportedly held with the defendant at the Courthouse on the date in question.

Whether Local Rule 43(a) is applicable to the tape recording at issue here is a question of first impression for this court.² Superficially, the recording falls within the plain language of the rule: the rule prohibits any person from making any recording in the course of or in connection with a proceeding in this court on any floor of the building in which court proceedings may be held. Smith made the recording while the case (United States v. Marrapese) was being tried and he made that recording on a floor of the building in which court proceedings were being held. Yet, the tenor of Rule 43(a) is such that a strong inference arises to the effect that its natural and primary purpose is to prevent members of the press and broadcast media from interfering with the business of the court and with the right to a fair trial. Although there is no idiosyncratic historical record spelling out the aims underlying the adoption of Local Rule 43(a), it is patently patterned after Rule 53 of the Federal Rules of Criminal Procedure, adopted in 1946. Wright, § 861 at 345. Rule 53 provides:

The taking of photographs in the court room during the progress of judicial proceedings or radio broadcasting of judicial proceedings from the court room shall not be permitted by the court.

In 1962, the Judicial Conference of the United States adopted the following resolution regarding Fed.R.Crim.P. 53:

Resolved, That the Judicial Conference of the United States condemns the taking of photographs in the courtroom or its environs in connection with any judicial proceedings, and the broadcasting of judicial proceedings by radio, television, or other means, and considers such practices to be inconsistent with fair judicial procedure and that they ought not to be permitted in any federal court.

1962 Jud.Conf.Rept., p. 10, reprinted in Wright, § 861 at 345 ("1962 Resolution"). The Supreme Court, in Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965), lent approbation to the policy considerations which lie at the core of both Fed.R. Crim.P. 53 and the 1962 Resolution. In Estes, the Court held that a defendant had been denied due process by the televising of his notorious, heavily publicized, and highly sensational criminal trial. Estes, and a subsequent case, Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), together stand for the proposition that the right to a fair trial may well demand the absence of a crush of reporters and the accouterments of the broadcasting trade from the courtroom and its immediate surroundings. "Thus, the law not only allows but compels the courts to insure that judicial proceedings are conducted in an orderly, solemn environment free from the interferences which so often accompany modern news coverage of the events." Dorfman v. Meiszner, 430 F.2d 558, 561 (7th Cir.1970). The courtroom, in effect, should be a safe harbor, insulated where (and to the extent) necessary both from tidal waves of publicity and from the distractions inherent in the tools of the news media trades.

The Judicial Conference revised its guidelines beginning in 1976, and in 1980 recommended that each district adopt the following model rule:

The taking of photographs and operation of tape recorders in the courtroom or its environs, and radio or television broadcasting from the courtroom or its environs during the progress of or in connection with judicial proceedings, including proceedings before a United States Magistrate, whether or not court is actually in session, is prohibited. A judge may, however, permit (1) the use of electronic or photographic means for the presentation of evidence or the perpetuation of a record, and (2) the broadcasting, televising, recording, or photographing of investitive, ceremonial, or naturalization proceedings.

Recommendation Relating to the Use of Photography, Radio, Television Equipment, and Tape Recorders in the Courtroom and Its Environs, 87 F.R.D. 519, 535-36 (1980) ("1980 Recommendation").³ The following year, however, the Supreme Court limited Estes to its own facts, and interpreted it as holding only that what had been done in that case had infringed the defendant's right to the fair trial guaranteed by the Due Process Clause. Chandler v. Florida, 449 U.S. 560, 101 S.Ct. 802, 66 L.Ed.2d 740 (1981). Estes had not, the Court announced, proclaimed a constitutional rule of general application barring photographic, radio and television coverage in all cases and under all circumstances, id. at 570-74, 101 S.Ct. at 807-809; and, in Chandler, the Court abjured the adoption of such a per se rule. Absent a showing of prejudice to a particular defendant in a particular case, the Constitution does not prohibit a state from allowing criminal trials to be televised if the state wishes to do so. Id. at 574-583, 101 S.Ct. at 809-814. On the other hand, however, such publicity is not constitutionally required. Id. at 569-70, 101 S.Ct. at 807. And, Rule 53, coupled with the 1962 Resolution and subsequent pronouncements of Judicial Conference, continue to foreclose broadcasts or telecasts of federal criminal trials.

Both the 1962 Resolution and the 1980 Recommendation are more encompassing than Fed.R.Crim.P. 53; and Local Rule 43(a), in turn, is broader than the 1962 Resolution (as it bars recording and broadcasting, whereas the 1962 resolution condemns only broadcasting). In point of fact, Local Rule 43(a) is very similar to the final version of the 1980 Recommendation. Both prohibit the operation of tape recorders in the courtroom in connection with judicial proceedings, except for the perpetuation of a record. The differences are both minor and explicable: the 1980 Recommendation, for example, bars recording in the "environs" of a courtroom, while ...