US v. Cutler
| Decision Date | 08 March 1993 |
| Docket Number | No. 91 CR 1189.,91 CR 1189. |
| Citation | 815 F. Supp. 599 |
| Parties | UNITED STATES of America, v. Bruce CUTLER, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
COPYRIGHT MATERIAL OMITTED
Mary Jo White, U.S. Atty. by John J. Gallagher, Kelly D. Talcott, Special Prosecutors, Brooklyn, NY, for U.S.
Goldman & Hafetz by Frederick P. Hafetz, Susan Necheles, Kaplan & Katzberg by Robert F. Katzberg, New York City, for defendant.
Defendant Bruce Cutler moves to dismiss the criminal contempt charges in their entirety or, in the alternative, to dismiss certain specified charges in the Order to Show Cause charging defendant with criminal contempt of Court in violation of 18 U.S.C. § 401(3). For the reasons set forth below, these motions are denied.
This proceeding arises out of a series of extrajudicial statements made by Bruce Cutler during Cutler's representation of John Gotti in the criminal matter United States v. Gotti. The case was the subject of virtually unprecedented media coverage, with both Mr. Cutler and the Government vying for the microphone. The Government urges that, although much of the evidence in the Gotti case was sealed at defense counsel's request, Cutler waged an intensive media campaign to shape the public's perception of John Gotti and the evidence against him. The campaign was intended to create an "aroma" or pervasive theme that John Gotti was the victim of overzealous and corrupt Government prosecutors. It was statements made by Cutler in the course of this media campaign that the Government charges ran afoul of Local Rule 7 and, consequently, Judge Glasser's three statements regarding the local rule which the Government claims to be orders.
On December 16, 1990, defense counsel Gerald Schargel requested that Judge Glasser close the detention hearing for Gotti and his co-defendants, Salvatore Gravano, Frank Locascio and Thomas Gambino, in order to prevent the prospective pool of jurors from becoming contaminated by the deluge of pretrial publicity. (Appendix to Mem. of the U.S. in Opp. to Def.'s Mot. to Dismiss Criminal Contempt Charges hereinafter "Gov't.'s Appendix", Ex. 1.) The Government opposed closure on the ground that a fair trial could be assured by voir dire or other available means. (Gov't.'s Appendix, Ex. 2.) The media agreed, noting that the publicity surrounding the case was already "so widespread" that closure would have little effect. (Gov't.'s Appendix, Ex. 3.)
On December 21, 1990, the Government, defense counsel, and the media appeared before Judge Glasser to argue the motion to close the detention hearing. Judge Glasser decided to close the detention hearing, concluding that there was a "substantial probability that the defendants' right to a fair trial will be prejudiced by the publicity that closure would prevent" and that there existed no reasonable alternatives that would adequately protect that right. (Dec. 21, 1990, Tr. at 38-40, Gov't.'s Appendix, Ex. 4.)
After so ruling, Judge Glasser admonished counsel for both sides to comply with Local Rule 7:
(Dec. 21, 1990, Tr. at 44-46, Gov't.'s Appendix, Ex. 4 (emphasis added).)
Neither the Government nor defense counsel objected to this "admonition". On the following day, however, Cutler was quoted in no less than three newspapers, commenting on the prosecution of John Gotti. In the New York Daily News, Cutler stated that the Government witnesses were the "same bums" and the Government tapes the "same tapes" used in previous cases against Gotti and that the tapes should not therefore present a problem to the defendants' winning the case. (Order to Show Cause ¶ 5(a).) In New York Newsday, Cutler commented that the Government has "thrown the Constitution out the window when it comes to Mr. Gotti." (Order to Show Cause ¶ 5(b).) In the New York Post, Cutler similarly noted that "they threw the Constitution out the window when it comes to Mr. Gotti." (Order to Show Cause ¶ 5(c).)
The parties again appeared before Judge Glasser on January 9, 1991, at which time the Court expressed its dismay that, despite its best efforts, information revealed during the closed detention hearing had nevertheless found its way into newspapers and on television. Judge Glasser instructed the parties that his "orders" were to abide by Local Rule 7:
(Jan. 9, 1991, Tr. at 44-45, Gov't.'s Appendix, Ex. 5 (emphasis added).)
As with December 20, 1990, "admonition", neither defense counsel nor the Government objected to the Court's "order". Nevertheless, on the following day, Cutler was quoted in New York Newsday, commenting that the Government's tapes contained denials by Gotti that he had been involved in the murder of Paul Castellano and that Gotti (Order to Show Cause ¶ 5(d).)
On January 18, 1991, the Government moved to disqualify defense counsel from representing the Gotti defendants during trial. The motion and its opposition papers were filed under seal in keeping with the intended effect of the Court's December 21, 1990, order preventing disclosure of all evidence offered at the detention hearing. Nevertheless, Judge Glasser decided that oral argument on the motion would be open to the public.
In response to these developments, media coverage of the Gotti continued unabated. Indeed, from the outset, the media had participated in the Gotti case as a party of sorts, filing various briefs outlining its interest in full disclosure of all the facts surrounding the prosecution. On March 15, 1991, the media moved for an order unsealing the legal memoranda and evidence submitted with regard to the disqualification motion. (Gov't.'s Appendix, Ex. 8.) The media argued that unsealing was warranted because the open oral argument on February 22, 1991, had already allowed for widespread disclosure of much of the information pertaining to the pending disqualification motion. As with the detention hearing, the Government supported the motion to unseal, whereas defense counsel argued that it would violate the Gotti defendants' Sixth Amendment right to a fair trial by prejudicing potential jurors in the case. (Gov't.'s Appendix, Exs. 6, 9.)
While the Court considered the Government's disqualification motion, Cutler did little to curb his contact with the press. On January 23, 1991, Cutler was quoted in The New York Times as saying that the "Government will stop at nothing in their quest to convict Mr. Gotti". (Order to Show Cause ¶ 5(e).) On February 7, 1991, he told New York Newsday that the Government tells "everyone and anyone that the key to open their cell door is giving false evidence against Mr. Gotti." (Order to Show Cause ¶ 5(f).) On February 23, 1992, Cutler was quoted in New York Newsday, commenting that "my position is that the government will do anything to convict these defendants." (Order to Show Cause ¶ 5(g).) On February 28, 1991, Cutler commented to the New York Post that the Government's "tapes do not say what Mr. Gleeson the prosecutor says they say, and the conversations that he put forth are totally and deliberately taken out of context by the Government." (Order to Show Cause ¶ 5(h).)
Other comments to the press by Cutler in the wake of Judge Glasser's first two statements included:
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