US v. Masselli
| Decision Date | 25 June 1986 |
| Docket Number | No. 81 Crim. 0325 (LFM).,81 Crim. 0325 (LFM). |
| Citation | 638 F. Supp. 206 |
| Parties | UNITED STATES of America, v. William MASSELLI, Frank Costanzo, Joseph Bugliarelli, Michael Orlando, John Dono, Thomas Carbonaro, Theodore Derosa, Anthony Capponi, Joseph Imbruglia and Pellegrino Masselli Meats, Inc., Defendants. SCHIAVONE CONSTRUCTION COMPANY, Raymond J. Donovan, Ronald A. Schiavone, Richard C. Callaghan, Joseph A. DiCarolis, Morris J. Levin, Albert J. Magrini, Gennaro Liguori and Robert Genuario, Petitioners, v. Mario MEROLA, Stephen R. Bookin, Jay Shapiro, Edward McCarthy and other unknown John Does, Respondents. |
| Court | U.S. District Court — Southern District of New York |
Connell, Foley & Geiser by Theodore W. Geiser, Roseland, N.J., for petitioner Schiavone Const. Co.
Pierson, Ball & Dowd by William O. Bittman and Robert A. Feitel, Washington, D.C., and Kaye, Scholer, Fierman, Hays & Handler by Paul J. Curran and Barbara Kagan, New York City, for petitioner Raymond J. Donovan.
Ronald A. Schiavone, petitioner pro se.
Brown & Brown by Raymond M. Brown, Jr., Newark, N.J., for petitioner Richard C. Callaghan.
Lowenstein, Sandler, Brochin, Kohl, Fisher, Boylan & Meanor by Theodore V. Wells, Jr., Roseland, N.J., for petitioner Joseph A. DiCarolis.
Robert Hill Schwartz by Robert Hill Schwartz, New York City, for petitioner Morris J. Levin.
Stanley S. Arkin, P.C. by Stanley S. Arkin and Jeffrey M. Kaplan, New York City, for petitioner Albert J. Magrini.
Robert Kasanof by Robert Kasanof, New York City, for petitioner Gennaro Liguori.
Stein, Bliablias, McGuire & Pantages by Dino D. Bliablias, Livingston, N.J., for petitioner Robert Genuario.
Mario Merola, Dist. Atty., Bronx County by Peter D. Coddington, Asst. Dist. Atty., Bronx, N.Y., for respondents.
Petitioners move by order to show cause, pursuant to Rule 42(b), Fed.R.Crim.P., and Rule 43(a), Civil Rules of the United States District Courts for the Southern and Eastern Districts of New York, for an evidentiary hearing to determine whether Bronx District Attorney Mario Merola, his press agent Edward McCarthy, and Bronx Assistant District Attorneys Stephen Bookin and Jay Shapiro should be held in civil and criminal contempt of court for violation of a wiretap order of this court made on December 15, 1983 in a then pending criminal action, United States v. Masselli, 81 Cr. 325 (LFM).
After hearing oral argument on April 28, 1986 and considering the affidavits, documents and memoranda submitted by the parties, we deny and dismiss the petition for the reasons that follow.
The material facts, as petitioners concede, are not in dispute.1 The Federal Bureau of Investigation ("FBI") conducted court-authorized electronic surveillance, from January 1979 to June 1979, of Pelligrino Masselli Meats, Inc., 102 Bruckner Boulevard, Bronx, New York, pursuant to 18 U.S.C. §§ 2510 et seq., and made 892 recorded tapes of conversations known as the "Tumcon" tapes. At the conclusion of the FBI's investigation, the Tumcon tapes were placed under seal by Hon. Lawrence W. Pierce, then a United States District Judge for the Southern District of New York.
Three years later, on December 15, 1983, on application of the Bronx District Attorney and the consent of the United States Attorney for the Southern District of New York, we granted an order releasing the Tumcon tapes for use in the investigation in Bronx County of a September 1978 murder of Salvatore Frascone. The order permitted the Bronx District Attorney to copy the Tumcon tapes, logs and indices ("the Title III materials") and to present them to a grand jury subject to the following restrictions:
On August 2, 1984, the Bronx District Attorney was granted another wiretap order by Hon. John E. Sprizzo which permitted his use, in any proceeding, of 52 recorded conversations from the Tumcon tapes pertaining to various state law crimes, such as second degree murder and grand larceny. Two months later, on October 2, 1984, the indictment in People v. Schiavone Construction Co., No. 3571/84, Supreme Court, Bronx County, was unsealed, and on October 29, 1984, we granted yet another order permitting the Bronx District Attorney to provide copies of the Title III materials to each of the defendants ("the Schiavone defendants").
On December 20, 1985, after an eleven-week evidentiary hearing in Schiavone, Hon. John P. Collins denied defendants' motion to suppress the Title III materials. Each of the Schiavone defendants then moved in state court, on April 1, 1986, for a severance. In support of that motion, defense counsel Stanley S. Arkin submitted an affidavit containing a footnote citing the prosecution's 366-page transcript of 28 Tumcon conversations entitled, "Excerpts From Conversations Intercepted Pursuant to Court-Ordered Electronic Surveillance of 102 Bruckner Boulevard, Bronx, New York, Between January 5, 1979 and July 8, 1979" ("the Excerpts Transcript").
At a status conference, held on April 3, 1986, Bronx Assistant District Attorney Jay Shapiro told Justice Collins that the Excerpts Transcript had been filed in the Clerk's office that morning as part of the prosecution's response to the severance motion, that he was unaware of any legal ground requiring him to file his complete response at one time, and that he did not at that time know if copies of the Excerpts Transcript had been distributed to reporters. Justice Collins thereupon ordered Mr. Shapiro to retrieve all copies of the Excerpts Transcript and to submit only one to the court under seal.2 It was soon learned, however, that Mr. Merola's press secretary, Edward McCarthy, had distributed five copies of the Excerpts Transcript to several reporters only two and one-half hours after the April 3 court filing.3
The following day, April 4, 1986, newspaper articles discussing the contents of the Excerpts Transcript and the pending Schiavone case appeared in the New York Times, the Washington Post and the Daily News. The Washington Post characterized the Excerpts Transcript as "a colorful preview of the prosecution's case at the forthcoming trial set for Sept. 2,"4 and the Daily News reported that "although portions of the conversations have been used previously in court to uphold the indictment, the complete transcript provides a graphic view of the alleged scheme."5
The only issue before this court is whether respondents may be held in contempt of our order of December 15, 1983, and we make no findings or conclusions on any other issue, such as alleged prosecutorial misconduct.
Petitioners contend that respondents' court filing and public distribution of the Excerpts Transcript violated paragraphs 3 and 5 of our December 15, 1983 wiretap order, and that respondents wilfully and flagrantly defied our order and, accordingly, should be held in criminal and civil contempt.
Respondents insist that they "have done everything right" and chiefly rely on Judge Sprizzo's order of August 2, 1984 authorizing public disclosure of the Excerpts Transcript "in any proceeding." Respondents also contend that when petitioners cited the Excerpts Transcript in their severance motion papers, the transcript became a matter of public record and, therefore, the court filing of the Excerpts Transcript and its distribution to the press were entirely proper. Finally, respondents contend that under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and its progeny, a contempt citation from this court would constitute unlawful federal interference in the state prosecution of the Schiavone defendants.
6 A civil contempt citation, on the other hand, is remedial; it is designed to coerce compliance with court orders and compensate a litigant for losses caused by the contemnor's disobedience.7 Criminal contempt requires proof beyond a reasonable doubt that the alleged contemnor acted wilfully.8 Civil contempt, in contrast, only requires proof by clear and convincing evidence that the order was disobeyed.9
Although courts have inherent power to coerce obedience to their orders and to punish contemnors for wilful violations,10 "courts must be careful in employing contempt sanctions because the `judicial contempt power is a potent weapon.'"11 Moreover, an order of contempt will not be granted unless the allegedly violated judicial order is specific, definite, and unequivocal.12
Based upon the affidavits, briefs, exhibits, oral arguments, and petitioners' own admission,13 we conclude that there are no genuine issues of material fact to be resolved and, accordingly, deny their request for an evidentiary hearing.14 We hold, for the reasons stated below, that respondents are not in contempt of our wiretap order of December 15, 1983 and dismiss the instant petition.
Respondents do not dispute that paragraphs 3 and 5 of our December 15, 1983 order clearly and unequivocally prohibited them from (1) copying the Title III materials, and (2) disclosing their contents without notice to the United States Attorney and approval of this court. At oral argument, however, respondents insisted that they adhered to our order when the Bronx District Attorney applied to Judge Sprizzo, on notice to the United States Attorney, for an order permitting his use of 52 Tumcon conversations in any Bronx criminal...
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