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US V. Bruce Cutler UNITED STATES OF AMERICA, Appellee, --v.-- BRUCE CUTLER, Defendant-Appellant. Docket No. 94-1382 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 58 F.3d 825; 1995 U.S. App. LEXIS 15549; 23 Media L. Rep. 2089 March 23, 1995, Argued June 19, 1995, Decided SUBSEQUENT HISTORY: [**1] As Amended July 13, 1995. PRIOR HISTORY: Defendant, a criminal defense lawyer, appeals from a judgment of conviction and sentence entered in the United States District Court for the Eastern District of New York (Platt, then-C.J.). The district judge ordered him to comply with a local court rule during criminal proceedings against his client. Defendant, nevertheless, spoke repeatedly to the media about matters on which the rule forbade comment. After a bench trial, defendant was held in criminal contempt, in violation of 18 U.S.C. § 401(3), and sentenced to probation.On appeal, defendant argues that: (1) the rule is unconstitutional; (2) the evidence does not support his contempt conviction; and (3) several aspects of his probation were an abuse of discretion. Because he could have challenged the district court's orders earlier, his constitutional challenge is collaterally barred. The evidence amply supports his conviction. The sentence of probation is affirmed. DISPOSITION: AFFIRMED. CASE SUMMARY: PROCEDURAL POSTURE: Defendant attorney appealed a decision from the United States District Court for the Eastern District of New York, finding defendant guilty of criminal contempt, in violation of 18 U.S.C.S. § 401(3), and sentencing him to 90 days' house arrest and three years' probation, and also suspending him from practicing law in the Eastern District of New York for 180 days, in his violation of U.S. Dist. Ct., E.D.N.Y., Crim. R. 7. OVERVIEW: The lower court found defendant attorney guilty of criminal contempt, in violation of 18 U.S.C.S. § 401(3) and sentenced him to 90 days' house arrest and three years' probation, and also suspended him from practicing law in the Eastern District of New York for 180 days. Notwithstanding the lower court's pre-trial admonition and orders to comply with U.S. Dist. Ct., E.D.N.Y., Crim. R. 7, defendant had spoken repeatedly and heatedly to the media on the merits of the government's case against his client. On appeal, defendant argued that: (1) the orders and Local Rule 7 were unconstitutional; (2) the evidence, under the heightened standard applicable in U.S. Const. amend. I cases, did not support his contempt conviction; and (3) several aspects of his sentence were an abuse of discretion. The court held that because defendant could have challenged the orders (and Local Rule 7) by appealing them, or seeking a writ of mandamus or declaratory relief, his constitutional challenge was collaterally barred. Moreover, the evidence amply supported his conviction. Finally, although aspects of his probation gave the court pause, the court would not disturb his sentence. The court affirmed. OUTCOME: The court affirmed defendant attorney's conviction for criminal contempt on the grounds that his constitutional challenge was collaterally barred because he failed to challenge the orders and rule in issue by appealing them. In addition, the evidence amply supported his conviction. COUNSEL: FREDERICK P. HAFETZ, Goldman & Hafetz, New York, NY (Susan Necheles, Herald Price Fahringer, of counsel), for Defendant-Appellant. JOHN J. GALLAGHER, Special Prosecutor on behalf of the United States of America, New York, NY, for Appellee. JOHN [**2] H. DOYLE, III, New York, NY, for amicus curiae New York Council of Defense Lawyers. LEON FRIEDMAN, New York, NY (Arthur N. Eisenberg, of counsel), for amicus curiae The New York Civil Liberties Union. JUDGES: Before: MCLAUGHLIN, JACOBS, Circuit Judges, and KAUFMAN, District Judge. * * The Honorable Frank A. Kaufman, of the United States District Court for the District of Maryland, sitting by designation. OPINION BY: MCLAUGHLIN OPINION [*828] MCLAUGHLIN, Circuit Judge: The underworld exploits of John Gotti and the courtroom legerdemain of his attorney, Bruce Cutler, are now the stuff of legend. Cutler's last appearance on Gotti's behalf was in the United States District Court for the Eastern District of New York (I. Leo Glasser, Judge). Notwithstanding the court's pre-trial admonition and orders to comply with Local Criminal Rule 7 of the Southern and Eastern Districts of New York ("Local Rule 7"), Cutler spoke repeatedly and heatedly to the media on the merits of the government's case against his client. Exasperated with Cutler, Judge Glasser issued an order to show cause why he should not be held in criminal contempt. Judge Glasser then recused himself, and the matter was [**3] reassigned to then-Chief Judge Platt. After a five-day bench trial, the district court found Cutler guilty of criminal contempt, in violation of 18 U.S.C. § 401(3). The court sentenced Cutler to ninety days' house arrest and three years' probation, and also suspended him from practicing law in the Eastern District of New York for 180 days. On appeal, Cutler argues that: (1) the orders and Local Rule 7 are unconstitutional; (2) the evidence, under the heightened standard applicable in First Amendment cases, does not support his contempt conviction; and (3) several aspects of his sentence were an abuse of discretion. Because Cutler could have challenged the orders (and Local Rule 7) by appealing them, or seeking a writ of mandamus or declaratory relief, his constitutional challenge is collaterally barred. Moreover, the evidence amply supports his conviction. Finally, although aspects of his probation give us pause, we will not disturb his sentence. BACKGROUND John Gotti was arrested on December 11, 1990, on racketeering charges. The murder of Paul Castellano, a rival mobster, was one of many predicate acts. This marked the fourth time that the government tried to end Gotti's criminal [**4] career, the previous attempts having failed. The then-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, Bruce Cutler, a member of the New York Bar, countered by calling the prosecutors "publicity-hungry" and on a vendetta to frame his client. He was quoted in New York's four major newspapers--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. A. Local Rule 7 Cutler's and Maloney's comments seemed to be in tension with Local Rule 7, to phrase it charitably. That rule provides: It is the duty of the lawyer or law firm 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 or imminent criminal litigation with which a lawyer or law firm [**5] is associated, if there is a reasonable likelihood that such dissemination will interfere [*829] with a fair trial or otherwise prejudice the due administration of justice. From the time of arrest, issuance of an arrest warrant or the filing of a complaint, information or indictment, in any criminal matter until the commencement of trial or disposition without trial, a lawyer or law firm associated with the prosecution or defense shall not release or authorize the release of any extrajudicial statement which a reasonable person would expect to be disseminated by means of public communication, relating to that matter and concerning: (1) The prior criminal record (including arrests, indictments or other charges of crime) or the character or reputation of the accused, except that the lawyer or law firm may make a factual statement of the accused's name, age, residence, occupation and family status; and if the accused has not been apprehended, a lawyer associated with the prosecution may release any information necessary to aid in the accused's apprehension or to warn the public of any dangers the accused may present; . (4) The identity, testimony or credibility of prospective [**6] witnesses, except that the lawyer or law firm may announce the identity of the victim if the announcement is not otherwise prohibited by law; . (6) Any opinion as to the accused's guilt or innocence or as to the merits of the case or the evidence in the case. E.D.N.Y. Crim. R. 7(a). B. The December 20, 1990 "Admonition" When a detention hearing was scheduled, the district court granted Gotti's motion to close the hearing and seal all evidentiary submissions, including transcripts from the wiretaps. See United States v. Gotti, 753 F. Supp. 443 (E.D.N.Y. 1990). On December 20, 1990, after the hearing, Judge Glasser admonished the parties (and Cutler in particular) to try the case only in the courtroom, not in the press: I feel very strongly about the conduct of this trial in an orderly and fair way and I feel very strongly about Local Rule 7 of the local rules of this Court . .That rule spells out, I believe, in some detail, what it is that it is appropriate for defense lawyers to be commenting about. You Mr. Cutler. My admonition simply is, observe Local Rule 7 . The statements that this is a circus, it is a frame up, try your case [**7] in the courtroom. Okay I feel strongly about that. It applies to the government, it applies to the defense. I propose to take such steps as I regard as being appropriate.
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