Opinion
04 Cr. 690 (SAS).
December 3, 2004
Jennifer G. Rodgers, Michael G. McGovern, Joon H. Kim, Assistant United States Attorneys, New York, NY, for the Government.
Marc Allan Fernich, Esq., Law Office of Marc Fernich, Jeffrey Lichtman, Esq., Law Office of Jeffrey Lichtman, New York, NY, Barry Levin, Esq., Garden City, NY, Joseph Corozzo, Esq., Rubinstein Corozzo, LLP, New York, NY, Charles F. Carnesi, Garden City, NY, for Defendants.
David A. Schulz, Esq., Levine Sullivan Koch Schulz, LLP, Henry S. Hoberman, Esq., Legal Department, American Broadcasting Companies, New York, NY, for Curtis Sliwa and WABC-AM Radio, Inc.
OPINION AND ORDER
I. INTRODUCTION
On July 21, 2004, a grand jury in the Southern District of New York indicted John A. Gotti, Jr. ("Gotti") on a number of charges, including racketeering in connection with the attempted murder in 1992 of the Guardian Angels founder and radio talk-show host, Curtis Sliwa ("Sliwa"). For years, Sliwa has insisted on air that Gotti ordered him killed, but with the filing of the indictment against Gotti, Sliwa has become even more outspoken, using his popular radio program, "Curtis and Kuby in the Morning," as a soapbox from which to proclaim Gotti's guilt to his listeners. Gotti now seeks an order pursuant to Local Criminal Rule 23.1 forbidding Sliwa, who is almost certainly going to be a witness at trial, from making any further extrajudicial statements about the pending case against Gotti until the completion of the trial. While the government takes no position in regard to Gotti's motion, I granted non-parties Sliwa and WABC-AM Radio, Inc., permission to submit a brief in opposition to the motion.
See 11/15/04 Letter of Assistant United States Attorney Jennifer G. Rodgers to the Court at 1.
See United States v. Gotti, No. 04 Cr. 690 (S.D.N.Y. Nov. 17, 2004).
II. BACKGROUND
Sliwa co-hosts with Ron Kuby a radio talk show on WABC that airs every weekday morning from 5:00 to 10:00 a.m. According to the rating service Arbitron, 3.6 percent of radios that are turned on during those hours in the counties that make up the Southern District of New York are tuned in to Sliwa's program. This means that, on average, 143,000 people in that geographical area listen to the program at some point every week.
See 11/15/04 Affidavit of David A. Schulz, Attorney for Sliwa and WABC-AM Radio, Inc. ("Schulz Aff.") ¶ 2.
See id. ¶ 3.
See id.
Sliwa's show features a so-called "Mob Talk" segment during which Sliwa regularly attacks Gotti and discusses the charges against him. Some of the comments to which Gotti objects are in the nature of invective; for instance, Sliwa has suggested on air that Gotti's relatives are "debased," "criminals," and "knuckle-draggers." In addition, Sliwa has commented repeatedly on the merits of the case against Gotti. Quoted excerpts from his show reveal that Sliwa has described in detail being attacked by baseball bat-wielding assailants at Gotti's behest. Sliwa has also accused Gotti of trying to "whack" him and has called the 1992 attack in which he was shot multiple times a "contract from John Gotti, Jr." Finally, Sliwa has boasted of his connections with law enforcement, including the New York Police Department and the Federal Bureau of Investigation, and hinted that his law enforcement sources share non-public information with him concerning Gotti and his associates.
See Memorandum in Support of John A. Gotti's Motion ("Gotti Mem.") at 7.
Id. at 14.
See id. at 12 (quoting an excerpt from Sliwa's broadcast on July 23, 2004: "The Gambino-McLaughlin crew, four of them hit me with, like, 22 blows to my head with . . . aluminum bats signed by Joe DiMaggio").
Id. at 10.
See id. at 2 n. 2 (quoting an excerpt from Sliwa's broadcast on July 30, 2004: "I've had conversations with the FBI while I've been in Japan, uh, visiting from city to city to different Guardian Angel chapters"); 11/17/04 Letter of Marc Fernich, Attorney for Gotti, to Court ("Gotti Reply") at 10 (quoting an excerpt from Sliwa's broadcast on August 2, 2004: "from the FBI, no better agents than Ted Otto, Cindy Piel and Bill Heckle, who kept me in touch with what's going on. . . .").
Sliwa denies that he has claimed any special inside knowledge of the case. In fact, he stated in one broadcast that he gets his information not from the FBI, but rather a column published on the Internet:
The FBI doesn't talk to me, virtually. I always have to try to nudge them. And it's interesting because if not for Jerry Capeci of moblandnews.com [sic], I would never know these things. `Cause you know all of a sudden the FBI says, huh, I don't know what you're talking about, Curtis. And then I have to sort of, like, goose them by calling them fan belt inspectors for busting Italians. And then finally when I read to them what Jerry Capeci has written, they generally either confirm or just say no comment.
Transcript of 8/19/04 Broadcast of "Curtis and Kuby in the Morning," Ex. A to Schulz Aff., at 4.
In any event, Gotti has not pointed to any confidential information divulged by Sliwa regarding the facts of the case that is not also readily available to the public from other sources.
See, e.g., Jerry Capeci, Junior Don Behind Curtis Sliwa Shooting, GANG LAND: THE ONLINE COLUMN, June 26, 2003, at http://www.ganglandnews.com/column336.htm.
III. DISCUSSION
Gotti contends that a "gag" order directed specifically at Sliwa is necessary in order to preserve Gotti's right to a fair trial by an impartial jury. Gotti points to Local Criminal Rule 23.1(h), which states:
The court, on motion of either party or on its own motion, may issue a special order governing such matters as extrajudicial statements by parties and witnesses likely to interfere with the rights of the accused to a fair trial by an impartial jury. . . . In determining whether to impose such a special order, the court shall consider whether such an order will be necessary to ensure an impartial jury and must find that other, less extreme available remedies, singly or collectively, are not feasible or would not effectively mitigate the pretrial publicity and bring about a fair trial. Among the alternative remedies to be considered are: change of venue, postponing the trial, a searching voir dire, emphatic jury instructions, and sequestration of jurors.
Gotti's request raises a novel issue. The Second Circuit has never considered the circumstances under which a district court may issue a witness gag order. Moreover, no court has ever confronted the situation where, as here, the witness against whom the gag order is sought is also a member of the media.
Cf. In re Dow Jones Co., Inc., 842 F.2d 603 (2d Cir. 1988) (order directed at parties and counsel); United States v. Cutler, 58 F.3d 825 (2d Cir. 1995) (order and contempt proceedings directed at defense counsel).
Rule 23.1(h) reflects the tension between the First and Sixth Amendments in this context. On the one hand, forbidding an individual — whether a member of the media or not — from making certain kinds of statements is a content-based prior restraint, a form of censorship that must withstand heightened scrutiny in order to pass First Amendment muster. On the other hand, while "[t]he authors of the Bill of Rights did not undertake to assign priorities as between First Amendment and Sixth Amendment rights," the Second Circuit has held that under certain circumstances the former must nonetheless yield to the latter.
See Dow Jones, 842 F.2d at 609 (stating that a gag order challenged by the individual gagged "is properly characterized as a prior restraint").
Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 561 (1976).
See Dow Jones, 842 F.2d at 609.
There is no need, however, to determine whether this is such a case because the order proposed by Gotti does not satisfy the requirements of Rule 23.1(h). Under the terms of the Rule, before issuing an order curtailing a witness's extrajudicial speech, the court must determine that (1) the speech is likely to interfere with the accused's right to a fair trial by an impartial jury and (2) the order is necessary because no other remedies could ensure a fair trial. Although Sliwa's repeated on-air attacks have the potential to interfere with Gotti's right to a fair trial, an order silencing Sliwa is not required to prevent this from happening. Indeed, such an order would be less effective than using a searching voir dire as well as a targeted jury instruction to root out any prejudice resulting from Sliwa's broadcasts.
A. Likelihood of Interference with Gotti's Right to a Fair Trial
Gotti argues that Sliwa's statements are presumptively prejudicial under Local Criminal Rule 23.1(d). A close reading of this subsection reveals, however, that its provisions do not apply to special orders governing the speech of parties and witnesses. The beginning of Rule 23.1(d) reads: "Statements concerning the following subject matters presumptively involve a substantial likelihood that their public dissemination will interfere with a fair trial or otherwise prejudice the due administration of justice within the meaning of this rule." Gotti argues that the phrase "within the meaning of this rule" indicates that subsection (d) applies to the entire rule, including subsection (h), but the language that precedes that phrase tracks almost exactly the language of the previous three subsections, which apply only to lawyers and law firms. Moreover, the list in subsection (d) of categories of presumptively prejudicial statements refers three times to lawyers and law firms, and not once to parties and witnesses. Thus, it is clear that Rule 23.1(d) is not intended to make certain extrajudicial statements by parties or witnesses presumptively prejudicial.
Rule 23.1 concerns primarily the statements of lawyers and law firms; only subsection (h) refers explicitly to parties and witnesses.
See Gotti Reply at 6.
Compare Local Criminal Rule 23.1(a) ("It is the duty of the lawyer or law firm . . . not to release or authorize the release of non-public information . . . if there is a substantial likelihood that such dissemination will interfere with a fair trial or otherwise prejudice the due administration of justice.") with Local Criminal Rule 23.1(h) ("The court . . . may issue a special order governing such matters as extrajudicial statements by parties and witnesses likely to interfere with the rights of the accused to a fair trial by an impartial jury.") (emphasis added).
See Local Criminal Rule 23.1(d)(1), (4), (6).
While not presumptively prejudicial, the kind of statements that Gotti has brought to the court's attention do have the potential, nonetheless, to interfere with his right to a fair trial. Given the notoriety that the Gottis have achieved over the years, mere name calling on Sliwa's part is unlikely to prejudice many prospective jurors. Sliwa has done more than call Gotti and his family bad names, however. He has repeatedly discussed the details of events that are central to the allegations against Gotti. In addition, Sliwa has insisted time and again that Gotti is guilty of the charges in the indictment. Whether his sources are, in fact, public or confidential is besides the point; many listeners are likely to believe Sliwa because of the perception that, one way or another, he is intimately acquainted with the facts of the case. In short, Sliwa is using his radio program to sway the minds of potential jurors without being subjected to the rigors of cross-examination. His diatribes are thus quintessentially prejudicial.
See Gotti Mem. at 9 (quoting Sliwa as saying, "I will not rest until he goes straight to hell without an asbestos suit and if my words speed up the process, so be it.").
B. Necessity of Special Order
Rule 23.1(h) makes clear that a witness gag order is to be issued only as a last resort. The reason for caution in this context is twofold. First, as indicated above, prohibiting a witness from making extrajudicial statements is a prior restraint. In a similar context, the Supreme Court has mandated that before issuing a gag order directed at the media, a court must "determine (a) the nature and extent of pretrial news coverage; (b) whether other measures would be likely to mitigate the effects of unrestrained pretrial publicity; and (c) how effectively a restraining order would operate to prevent the threatened danger." Second, a court's inherent authority over trial participants, including witnesses, should be exercised with restraint. Unlike attorneys, trial witnesses such as Sliwa are not officers of the court and cannot, therefore, be said to have bargained away any portion of their First Amendment rights in exchange for the privilege of practicing law. It follows that a court may abridge a witness's First Amendment rights only when absolutely necessary to ensure the accused's right to a fair trial.
Nebraska Press Ass'n, 427 U.S. at 562.
See Shepherd v. Maxwell, 384 U.S. 333, 360 (1966) (suggesting that a trial court has the power to "impos[e] control over the statements made to the news media by . . . witnesses").
See Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) ("Because of their very potency, inherent powers must be exercised with restraint and discretion.").
Cf. Gentile v. State Bar of Nev., 501 U.S. 1030, 1074-75 (1991) (holding that lower standard for regulating extrajudicial speech of lawyers is appropriate because attorneys have a "fiduciary responsibility not to engage in public debate . . . that will obstruct the fair administration of justice") (citation omitted).
Gotti contends that an order silencing Sliwa until the completion of the trial is indeed the only way to bring about a fair trial. Gotti understates, however, the value of other remedial measures, such as change of venue, trial postponement, a searching voir dire, emphatic jury instructions, and sequestration of jurors. Quoting Wittgenstein, the Second Circuit has called these precautions "like words to a writer": each is a tool providing a different effect, depending on the context in which it is used. In this case, two of these tools — a searching voir dire and emphatic jury instructions — are sufficient to ensure that Gotti will be tried by an impartial jury.
See Gotti Mem. at 22.
Dow Jones, 842 F.2d at 611 (quoting Ludwig Wittgenstein, Philosophical Investigations ¶¶ 11-14 (G.E.M. Anscombe trans. 3d ed. 1958)).
Sliwa's radio show is clearly popular. In this district, nearly 150,000 listeners tune in at some point during a typical week. Common sense dictates that many of these are regular listeners; the reach of the program is, therefore, necessarily limited. Even assuming that several times the average number of listeners per week are exposed to Sliwa's comments at some point between now and the beginning of jury selection, there remain several million citizens in this district whose ears and minds will still be untainted. A voir dire that focuses on screening out those veniremen who listen to Sliwa's program and have been influenced by his statements regarding Gotti can adequately ensure that an impartial jury is selected. A searching voir dire would be necessary in any case, in view of the months or even years during which Sliwa has attacked Gotti on a regular basis over the radio as well as the general notoriety of the Gotti name in the community.
According to the U.S. Census Bureau, the total population of the eight counties making up the Southern District of New York — New York, Bronx, Westchester, Putnam, Rockland, Orange, Dutchess, and Sullivan — is nearly 5,000,000. See New York Quickfacts, http://quickfacts.census.gov/qfd/states/36000.html (last visited Nov. 27, 2004).
Any residual taint can be cured by carefully admonishing the jury not to consider extrajudicial statements. The case law cited by Gotti denigrating the effectiveness of such instructions is inapposite. Instructing the jury to disregard statements made outside the courtroom will not be tantamount to asking the jury, as Gotti suggests, to "`perform humanly impossible feats of mental dexterity.'" On the contrary, distinguishing between in-court testimony and extrajudicial statements is a straightforward task. Both the Supreme Court and the Second Circuit have stated on numerous occasions that jurors are presumed to follow judges' instructions. There is no reason to assume that jurors cannot or will not do the same in this instance.
See Gotti Mem. at 22-23 (citing United States v. McDermott, 245 F.3d 133, 139-40 (2d Cir. 2001) (holding that limiting instruction cannot be presumed to be effective where prejudicial "spillover" due to joinder of defendants' trials is "overwhelming")).
Id. (quoting McDermott, 245 F.3d at 139-40).
See, e.g., Weeks v. Angelone, 528 U.S. 225 (2000); McDermott, 245 F.3d at 139.
At any rate, the solution proposed by Gotti — a court order silencing Sliwa — is likely to have the opposite of the intended effect. An order silencing a well known member of the media would only lead to further dissemination of the statements Sliwa has made up to this point. It is likely that every media outlet in New York City would repeat examples of Sliwa's attacks in the context of reporting on the gag order. Consequently, even if Sliwa himself were not allowed to continue speaking about the case, the number of potential jurors exposed to his statements would increase, rather than decrease. Because the proposed order would, therefore, be particularly ineffective at preventing the danger of a tainted jury pool, such an extreme measure is in this instance entirely inappropriate.
Indeed, there are indications that the proposed gag order has already captured the attention of the television media. See Gotti Mem. at 8 (describing television interview of Sliwa regarding proposed gag order on October 22, 2004).
See Nebraska Press Ass'n, 427 U.S. at 562 (requiring courts to consider, prior to issuing a gag order directed at the media, whether such an order would be effective).
That I decline to take the extraordinary measure proposed by Gotti does not mean that I am unsympathetic to his position. Like any other accused, Gotti is entitled to a fair trial by an impartial jury. Whatever feelings Sliwa may have about Gotti, as a member of the media Sliwa should respect Gotti's right to a fair trial. "The extraordinary protections afforded by the First Amendment carry with them something in the nature of a fiduciary duty to exercise the protected rights responsibly — a duty widely acknowledged but not always observed. . . . It is not asking too much to suggest that those who exercise First Amendment rights in newspapers or broadcasting enterprises direct some effort to protect the rights of an accused to a fair trial by unbiased jurors."
Id. at 560.
IV. CONCLUSION
For the foregoing reasons, Gotti's motion is denied. The Clerk of the Court is directed to close this motion (docket #19).
SO ORDERED.