United States District Court Eastern District of New York ------X Robert Alfano
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Case 1:06-cv-03511-NG-JO Document 81 Filed 10/05/07 Page 1 of 19 PageID #: <pageID> UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ----------------------------------------------------------X ROBERT ALFANO, Plaintiff, MEMORANDUM AND ORDER - against - CV 06-3511 (NG) (JO) NATIONAL GEOGRAPHIC CHANNEL, et al., Defendants. ----------------------------------------------------------X JAMES ORENSTEIN, Magistrate Judge: Plaintiff Robert Alfano filed the instant lawsuit against various defendants seeking damages he claims to have sustained as a result of their roles in disseminating a photograph depicting him in the company of the late John Gotti ("Gotti"), the erstwhile boss of an organized crime family. Alfano filed the case in state court, and the defendants thereafter removed the action to this court on July 17, 2006. Docket Entry ("DE") 1. I was randomly assigned to the case upon its removal, and held my first conference with the parties on December 13, 2006. In the months that followed, I held a number of conferences and made a number of rulings, some of which favored the plaintiff, and more of which favored the defendants. After more than eight months of litigation before me, and in response to the latest ruling against him, Alfano first raised an objection to my participation in the case on the basis of the fact that during my career as a federal prosecutor, I was a member of a team of attorneys who prosecuted Gotti. See DE 63 at 12-13 (memorandum of law in support of objections to discovery rulings pursuant to Fed. R. Civ. P. 72(a)). Alfano now asks me to disqualify myself from the case pursuant to 28 U.S.C. § 455. DE 73 (Notice of Motion). For the reasons set forth below, I deny the motion. Case 1:06-cv-03511-NG-JO Document 81 Filed 10/05/07 Page 2 of 19 PageID #: <pageID> I. Background A. Alfano's Attenuated Connection To Gotti Alfano alleges that defendants NGHT, Inc., NGC Network U.S., LLC (together, the "NG defendants"), and Corbis Corporation misappropriated his image and likeness in violation of section 51 of New York’s Civil Rights law. DE 15 ("Complaint"). His complaint is predicated on the use defendants' dissemination of a photograph that shows him in the company of Gotti (who was convicted of racketeering, murder and other charges related to his role as boss of the Gambino Organized Crime Family of La Cosa Nostra, see generally United States v. Locascio, 6 F.3d 924 (2d Cir. 1993)), in the course of the NG defendants' efforts to promote a television mini-series entitled "Inside the Mafia." See Complaint ¶¶ 19-27. The photograph depicts Gotti in the foreground, wearing a jacket and tie, and a similarly dressed Alfano slightly behind him and to one side with his left hand holding Gotti's right arm by the elbow. See DE 32-2 at 93, 94 (copies of photograph). Alfano's explanation for how he and Gotti happened to come together to be photographed, despite having only a limited relationship, is set forth in his answers to some of the defendants' interrogatories in this case. As far as I know, that explanation is not in dispute, and I reprint it in full below: 2. Please describe in detail any relationship (personal, professional, or otherwise) you have had with John Gotti: RESPONSE: Plaintiff Alfano had an indirect relationship consisting of attending one wedding for a mutual friend in late 1987 or 1988 and two (2) funerals over a twenty year span. Alfano would attend the public fireworks in July, on occasion, at his club located at 101st Ave. in Queens, New York, along with approximately 2000 people from the area. Other than these events, Plaintiff had no relationship with John Gotti. 2 Case 1:06-cv-03511-NG-JO Document 81 Filed 10/05/07 Page 3 of 19 PageID #: <pageID> 3. Please identify the time, date, place and location where the Photograph was taken: RESPONSE: The Photograph was taken at the Court House during the trial, at the Southern District Court House in Manhattan in 1991.[1] Mr. Alfano was in attendance with a friend, Joe Tacopina, who was clerking for one of the co- defendant's lawyers, Bruce Cutler, Esq. Plaintiff's family knew one of the co- defendants, Anthony Guerrieri, because Plaintiff dated his (Guerrieri's) cousin when he was 20yrs. [sic] old and kept a close relationship thereafter. By coincidence in 1991, John Gotti grabbed Plaintiff Alfano's arm [sic] as they were walking out, as a group. 4. Please ... describe in detail the circumstances under which you came to be photographed next to John Gotti: RESPONSE: Plaintiff was merely a spectator walking with friends, as described above. There was a media horde outside. Plaintiff Alfano was walking with the group of lawyers and he was caught up in a crowd of people. John Gotti held Alfano's arm [sic] for less than 10 seconds, to brace himself from the throng. DE 32-2 at 97-98 (Affirmation of [NG defendants' counsel] Russell A. Gaudreau in Opposition to Plaintiff's Motion for a Protective Order Ex. F at 2-3). B. The Facts Relevant To The Instant Motion Alfano's motion for recusal is predicated on two facts arising from my work as an Assistant United States Attorney in this district, a position that I held from late February 1990 (after the conclusion of Gotti's state court trial in Manhattan) until late June 2001, with one brief interruption while assigned to a different component of the Justice Department. Alfano relies first on the fact that I was a member of the prosecution team in United States v. John Gotti, et al., 90-CR-1051 (ILG) (E.D.N.Y.). See DE 73, Memorandum of Law ("Memo.") at 2 ("the Magistrate Judge did not disclose his direct participation in the prosecution of Gotti (during the 1 As discussed below, see n.3, infra, the photograph could have been taken no later than February 9, 1990, the date on which Gotti's trial in New York State Supreme Court, New York County (which is close to the federal courthouse for the Southern District of New York) ended. 3 Case 1:06-cv-03511-NG-JO Document 81 Filed 10/05/07 Page 4 of 19 PageID #: <pageID> 1990's when the photograph at issue was originally taken)"). Second, Alfano asserts that I did not disclose my "recent attendance at a reunion of the Gotti prosecutors and others at the Keens Steakhouse on or about March 31, 2007 until [Alfano's] attorney asked [me] directly in open court." DE 73, Plaintiff's Affidavit in Support of Motion to Recuse Magistrate Judge ("Alfano Aff.") ¶ 14. In a reply affidavit by his counsel, Alfano adds a third basis for my disqualification: a reference to Gotti during the course of certain testimony I provided at a hearing before Congress. See DE 79 (Affidavit of H. Todd Bullard) ("Bullard Aff.") ¶¶ 16-17. Before Alfano filed the instant motion, his attorney raised the matter at a conference before me on September 6, 2007. See DE 76 (Transcript of Pretrial Conference) ("Tr.") 13 ("Your Honor, from our side the only question that we had would be the Judge's impartiality. We're not sure if the Judge was involved in the earlier Gotti prosecutions.").2 When counsel described the factual bases of his anticipated motion, I provided him with certain additional information that he might find relevant. First, with respect to my work in prosecuting Gotti – and more importantly, the implicit suggestion that I performed such work "when the photograph at issue was originally taken," Memo. at 2, I pointed out that the "trial where the photograph was taken was a state trial that I had nothing to do with." Tr. 18. Alfano's counsel acknowledged that fact, see Tr. 19, but nevertheless elides it in presenting his motion.3 2 At the time Alfano's counsel stated that he was "not sure" if I was "involved in the earlier Gotti prosecutions" he had already, less than two weeks earlier, argued to the assigned district judge that I should be disqualified precisely because of my "personal involvement" in that case. DE 63-2 at 13. The judge to whom that argument was made has since determined that any challenge to my participation in the case must be directed to me in the first instance. See DE 80. 3 The timing of the photograph and its connection to Gotti's trial in state court – which ended even before I began my job as a federal prosecutor, and longer still before I joined the prosecution team in Gotti's federal case – is discussed in detail in an earlier Memorandum and 4 Case 1:06-cv-03511-NG-JO Document 81 Filed 10/05/07 Page 5 of 19 PageID #: <pageID> Second, with respect to the social gathering that Alfano now describes as "a reunion of the Gotti prosecutors," Alfano Aff. ¶ 14, I answered counsel's question about the nature of the event as follows: And as for a dinner, there was a private celebration among people involved in that case and involved in many other cases but who all worked together and it had nothing to do with the Gotti case as such. It was a reunion of prosecutors who had worked in my office and had worked together for a period of years. So to the extent [your motion] would be based on that, a fully informed observer would know that it was not about the Gotti case or a celebration on [sic] the Gotti case. Tr.