United States v. Cutler

58 F.3d 825 (1995)

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Nature of the Case

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Facts

John Gotti was arrested on racketeering charges. United States Attorney, Andrew Maloney, announced the indictment at a press conference, where he called Gotti a 'murderer, not a folk hero' and boasted that this time the government's case, which included extensive wiretap evidence, was much stronger than in the prior trials. Gotti's lawyer, Cutler (D), a member of the New York Bar, countered by calling the prosecutors 'publicity-hungry' and on a vendetta to frame his client. This was quoted in the Daily News, Newsday, the New York Post, and the New York Times. He also gave an interview on Prime Time Live, a nationally-broadcast television show, where he emphatically denied that Gotti was a mob boss. These announcements and comments flew directly in the face of Local Rule 7. The district court granted Gotti's motion to close the hearing and seal all evidentiary submissions, including transcripts from the wiretaps. After the hearing, Judge Glasser admonished the parties (and D in particular) to try the case only in the courtroom, not in the press. D then held a press conference outside the courthouse. He declaimed that the government had 'thrown the Constitution out the window,' mocked the government's witnesses as 'bums,' and erroneously described the government's tape recordings of wire-tapped conversations as the same ones used in earlier prosecutions. The parties again appeared before Judge Glasser. The judge instructed both parties to comply with Local Rule 7. The very next day, Newsday quoted D about the tapes. He said the tapes contained denials by Gotti of involvement in the murder of Paul Castellano. The government moved to disqualify D and his co-counsel, from representing Gotti during the trial, contending that D and Shargel were 'house counsel' for Gotti, and thus likely to be called as witnesses. Although the government filed its motion under seal, the district court elected to hold a public oral argument on the motion. The media, supported by the government, moved to unseal the briefs and evidence submitted in connection with the disqualification motion. D claimed such evidence would so taint potential jurors as to deny a fair trial. The media, in support of the motions, noted that D had already argued Gotti's case to the public and the potential jury pool by 'present[ing] a compelling, sympathetic portrait of a notorious defendant as a victim of prosecutorial zeal' and 'government overreaching in the extreme.' The court reserved decision. D continued to ignore the court's direction to comply with Local Rule 7. D conducted a regular media campaign and even appeared on 60 Minutes, praising Gotti for his loyalty, integrity, and honesty, denying the existence of the mob, comparing the prosecutors to Senator Joseph McCarthy, and deprecating the tapes. Judge Glasser once again ordered counsel to follow Local Rule 7. The district court disqualified D and Shargel, primarily because they were likely to be called as witnesses at Gotti's trial. The court unsealed the tapes played at Gotti's detention hearing, noting that D had called into question the integrity of the court and finding that any 'additional publicity which may flow from unsealing the record at this time would ... not give rise to a probability, substantial or otherwise, that the defendants' right to a fair trial will be prejudiced.' The tapes made their way into the public and were played and millions heard Gotti describe murders and other crimes. D countered with a media barrage of his own. Judge Glasser then issued an order to show cause why Cutler should not be held in criminal contempt, in violation of 18 U.S.C. Sec. 401(3). The order cited twenty-five instances of media coverage stemming from D's public comments about the upcoming trial (the vast majority coming after the January 9 order), in which a common theme emerged: Gotti would be vindicated again; the prosecutors were a 'sick and demented lot'; and the government's tapes were 'snippets deliberately taken out of context.' After appointing a special prosecutor, Judge Glasser recused himself. D promptly moved to recuse all judges of the Eastern District of New York and to transfer to the Southern District of New York, or a judge from the Second Circuit Court of Appeals. The district court denied the motion. D then moved to dismiss the criminal contempt charges in their entirety, or, alternatively, some of them. He argued that Local Rule 7 was unconstitutional. The district court denied the motions. D challenged the validity of the orders, arguing that Local Rule 7 was unconstitutional. D was found guilty of criminal contempt. D appealed.