USA v. Scarfo Filed August 27, 2001
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 00-4313
UNITED STATES OF AMERICA
v.
NICODEMO S. SCARFO
*Donald F. Manno,
Appellant
*(Pursuant to F.R.A.P. 12(a))
Appeal from the United States District Court
For the District of New Jersey
D.C. No.: 00-cr-00404-1
District Judge: Honorable Nicholas H. Politan
Argued: July 19, 2001
Before: SCIRICA, RENDELL, and ROSENN, Circuit Judges.
(Filed: August 27, 2001)
Robert J. Cleary,
United States Attorney
George S. Leone, Chief,
Appeals Division (argued)
970 Broad Street
Newark, NJ 07102-2535
Counsel For Appellee
Donald F. Manno, Esq. (argued)
900 Dudley Ave., Suite 250
Cherry Hill, NJ 08002
Counsel For Appellant
OPINION OF THE COURT
ROSENN, Circuit Judge.
This appeal presents an issue of first impression in this
circuit pertaining to a lawyer's right to make extrajudicial
statements to the press relating to a former client's pending
criminal case. The exchange between the defendant's
former lawyer and a member of the press resulted in a
newspaper article that raised the District Court's
indignation. The Court imposed a gag order against Donald
F. Manno, defendant's former counsel; Manno appealed.
The primary issue on appeal concerns the First Amendment
right of speech. Before reaching that issue, we must
consider certain procedural matters concerning the
appealability of an oral order, the effect on the record of the
District Court's addition to it after a notice of appeal is
filed, and the collateral order doctrine. Because we hold
that we have jurisdiction over an appealable collateral oral
order, and that it was error to issue the gag order, it will be
reversed.
I.
A.
On June 21, 2000, a federal Grand Jury in the District
of New Jersey issued a sealed indictment charging
Nicodemo Scarfo ("Scarfo") and Frank Paolercio with
various illegal gambling acts. Donald F. Manno, Esq.
("Manno") made an initial appearance for Scarfo. For
reasons not relevant to our decision, the United States
moved to disqualify Manno, and the District Court granted
the motion.
Subsequently, the Philadelphia Inquirer ("Inquirer")
2
interviewed Manno. On December 4, 2000, over a month
after the court disqualified Manno from the Scarfo
proceedings, an article appeared in the Inquirer quoting
Manno and the government prosecutor. The article
concerned a controversial means of surveillance used to
acquire evidence against Scarfo.1 Both Manno and the
prosecutor predicted the filing of a pretrial motion
contesting the legality of the Government's surveillance
technique.2
On December 5, 2000, the District Court held a
previously scheduled hearing. Citing the Inquirer article,
the Court entered an oral order barring "anybody from
talking to the press about the motion that I haven't seen
and that I don't know anything about." The Court stated
that the order applied to Manno, although he no longer
represented Scarfo. The order was to last until the Court
received the motion and decided it. Manno requested a
written order, and the Court promised one. The docket
entry for the December 5, 2000, hearing states, inter alia,
"ORDERED THAT A GAG ORDER REMAIN IN EFFECT." On
December 8, 2000 Manno filed a notice of appeal.
On January 10, 2001, the District Court held another
hearing. Manno appeared, along with his replacement,
Vincent Scoca, Esq., and the government counsel. Manno
and the District Court engaged in a lengthy discussion after
which the District Court orally clarified and affirmed its
December 5 oral order. The District Court again promised
a written order.
On February 9, 2001, Manno filed his brief on appeal
with this Court. On March 12, 2001, more than two
months after the hearing, the District Court signed an
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1. The Government suspected that Scarfo used a certain computer to
facilitate his illegal gambling activities. After securing a search warrant,
the Government installed a difficult-to-detect hardware device on
Scarfo's computer. The device purportedly allowed the FBI to reproduce
every stroke entered on Scarfo's computer, and later to use that
information to read the contents of the computer files.
2. We learned at oral argument that Scarfo's new counsel filed a motion
on this issue earlier this year. The Government has responded, and the
parties anticipate adjudication sometime in August or September, 2001.
3
order formalizing its December 5, 2000, and January 10,
2001, oral orders, and making findings of fact. On May 14,
2001, Manno filed a reply brief in response to the
Government's brief, discussing, in part, the District Court's
written order.
B.
1. The Inquirer Article
On December 4, 2000, a Philadelphia Inquirer article
reported the Government's use of a "keystroke-logging
device" on Scarfo's computer. The article stated that the
device "allowed the FBI to reproduce every stroke[Scarfo]
entered on a computer on which gambling records allegedly
were stored." The article predicted that Scarfo's legal
challenge of the keystroke-logging device "may create new
law."
The article also quoted Manno as stating that "[a]nything
[Scarfo] typed on that keyboard -- a letter to his lawyer,
personal or medical records, legitimate business records --
they got it all. . . . That's scary. It's dangerous." The article
continued:
Manno contends that federal investigators improperly
used a search warrant as authorization to install a
keystroke recorder on Scarfo's business computer in
the spring of 1999. By monitoring the keyboard during
May and June, investigators were able to determine the
code and password Scarfo used to access an encrypted
program which, authorities suspected, he was storing
gambling and loan-sharking records.
Manno said that he was preparing a motion
challenging the legality of the surveillance when he was
disqualified from the case in October. Manno was
barred because in the past he represented a client who
expected to testify for the government against Scarfo.
He said he expected the challenge to the surveillance
will be raise by whomever Scarfo hires to replace him.
"I don't think there is any case law on this issue, and
I hope the fact that it's a so-called organized crime
4
investigation doesn't detract from the fundamental and
overriding concern here, which is an individual's right
to privacy," Manno said last week.
The article concluded:
Manno would not discuss what his client was storing
on the [computer] but said Scarfo was using software
known as PGP. "It stands for Pretty Good Privacy," the
lawyer said with a chuckle.
The article also quoted the prosecuting attorney:
"I can't talk about any of it," he said, "but I think it's
correct to say this is [a] cutting-edge [legal issue]."
2. December 5, 2000 Hearing
On December 5, 2000, the District Court held a hearing
originally scheduled to ensure that Scarfo found a
replacement lawyer after Manno's October 27, 2000,
disqualification. The hearing quickly re-focused on the
Judge's reaction to reading the December 4, 2000, Inquirer
article. The Judge stated, "I'm barring anybody from talking
to the press about the motion that I haven't seen and that
I don't know anything about." He continued, "Mr. Manno,
you are under a specific obligation and injunction from this
Court not to speak to the press about this case at all.
Period. And if you have an objection to my motion, you
have a right to go to the Third Circuit Court of Appeals. If
you want to do it, be my guest."
The Judge, apparently perturbed at not having seen or
decided any motion papers before their substance appeared
in the press, proceeded to flesh out the order. He stated:
The Court: No matter who you talk to, you tell them
they're not to talk to the press about this case. Appx.
13.
The Court: After I decide whatever is going to be
decided -- I don't know what it is -- the, of course,
that is a different rule. Right now, we're not going to
try this case in the Philadelphia Inquirer or the Atlantic
City Journal or the Newark Star-Ledger or any other
newspaper. Id.
5
Manno: Judge, I assume that your Honor will be so
kind as to put into writing the injunction against me?
The Court: If you would like it.
Manno: I would appreciate if you would put that into
writing.
The Court: It will be my pleasure. Id. at 17.
The Court: You're a citizen, but you're subject to this
Court. You know, you can't make comments about a
case that is pending in front of me at this point. .. . I
don't want people to tell me I got a cutting-edge
cyberspace, whatever, when I haven't seen a piece of
paper that reflects anything about this case. When I
get the motion and I decide the motion, if you want to
speak, you're a citizen, you're entitled to speak. You're
entitled to say the judge is wrong, right, praise me or
damn me. Doesn't matter. Id. at 18.
The Court: I might be influenced by [an argument in
the newspaper] if it was a good argument . . . . What
I object to, so that you know, is extrajudicial comments
about a matter which is not even pending before this
Court yet. Id. at 19.
The Court: I'm not suggesting people can't look at the
public records. They're entitled to [that]. I'm not sealing
the record in this case. I'm merely saying until this
Court has had an opportunity to see the motions, to
see the response by the government and to hear oral
argument, I don't want it commented upon. That's all.
Manno: I understand your order. Id. at 20-21.
3. January 10, 2001 Hearing
After the December 10 hearing, the Government proposed
a written order embodying the Court's oral order. The
District Court rejected the order as inaccurate. See Supp.
Appx. 32. On January 10, 2001, the District Court held a
hearing concerning Scarfo's retention of new counsel and,
again, the Court spent much of the hearing discussing the
injunction with Manno:
The Court: It was brought to my attention that there
was an article in the Philadelphia paper . . . in which
6
you gave an interview . . . in which you talked about
the cyber space, or something, and this was ground-
breaking material dealing with the government's
intrusion upon defendant's rights, et cetera. . . . I was
unaware of that issue, number one; and number two,
had not ruled upon that issue, and had not heard
argument upon that issue, and had not read one shred
of piece of paper on that. . . .
I was upset because, in my judgment, you were
trying that motion in front of the press before you gave
this Court an opportunity even to see the matter and
to me that is what I restrained. Id. at 34.
The Court: I did not put a gag order on the case . ..
I was going to stop [discussions in the press] until I
heard the motion. Id. at 34.
The Court: I haven't modified [the oral order of
12/6/00] one iota. If I don't have the right to at least
retain some decorum in the presentation of matters
during the course of the criminal case, without
impinging upon the First Amendment rights of the
people, . . . let the Third Circuit Court of Appeals tell
you that. I think I have an inherent right to control
proceedings before me. . . . I felt that your actions in
speaking to the press was totally inappropriate . . . . Id.
at 37.
The Court: When you come up in my land, we do
things orderly, we do things nicely, and civilly, and we
don't try cases in the press. Id.
Manno: [I]t is beyond anything I could imagine that
that article in the Philadelphia newspaper affected the
decorum or the dignity in this court and certainly none
of my comments were meant in any way, shape, or
form . . . to compromise the integrity and dignity of
this Court. Id. at 37-38.
The Court: I'm not talking about affecting the jury.. . .
You folks are off in left field when you talk about
[affecting the jury]. I was concerned whether we talk
about how I felt -- orderly presentation of significant
and important arguments by counsel. . . And if you
7
want to say you're affecting someone, or trying to affect
someone, you're trying to affect the judiciary. . . . I
don't want to read about something that hasn't even
occurred in my court to be placed in a newspaper by
one of the counsel who was then counsel for -- who
was then counsel for the defendant in the case. Id. at
38-39.
Manno: I cannot see how a newspaper article in the
Philadelphia Inquirer can affect this Court, that this
Court could not effectively disregard this article .. . .
The Court: Your knowledge of this [case] did not come
to you because you were an ordinary citizen on the
street. The Philadelphia Inquirer did not come to you
because they wanted to get an expert opinion. They
came to you because you were Mr. Scarfo's lawyer and
they thought you were Mr. Scarfo's lawyer until you
said I had disqualified you. Your knowledge does not
emanate from a source outside of this proceeding, it
comes specifically because of this proceeding. . . . Id. at
41.
Manno: Quite frankly, Judge, what relevance does it
have, the source of my information?
The Court: It has a lot of relevance. You're trying to
pretend to be a common person. In fact, your
knowledge comes specifically from your involvement in
this case . . . . Don't clothe yourself with the white
cloak of being someone in the street who is interviewed
by the Philadelphia Inquirer. . . . You got to argue
[Scarfo's future motion] in the press. Id. at 42.
4. March 12, 2001 Written Order
During the January 10 hearing, the Court offered Manno
an opportunity to submit a form of order, but Manno
refused. Instead, the Government proposed an order, which
the Court signed and entered on March 12, 2001. 3 It stated
that the matter came before the Court sua sponte, and was
based "on the record made during the proceeding in this
_________________________________________________________________
3. By this time, Manno had already submitted his appellate brief to this
Court.
8
matter on December 5, 2000, and January 10, 2001." The
order proceeded to find, in relevant part, that: 1) Manno
had discussed the merits of an anticipated motion in the
case concerning electronic or computer surveillance
techniques; 2) without a court order, Manno would likely
make such statements to the press in the future, and those
statements would be "received as authoritative" given his
previous representation of Scarfo; 3) a local Criminal Rule
prohibits a lawyer representing a party in a criminal matter
from making an extrajudicial statement if the lawyer knows
or should reasonably know that it will have a substantial
likelihood of causing material prejudice to an adjudicative
proceeding; 4) there is a substantial likelihood of future
statements, and future statements to the press regarding
legal issues prior to adjudication will "materially prejudice
the Court's ability to fairly and efficiently determine the
anticipated pre-trial motion and any legal issues not yet
presented to and adjudicated by the Court"; 5) other
curative measures concerning empaneling an impartial jury
would likely be ineffective in ensuring that such statements
would not risk harm to the judicial process; 6) this order is
the least restrictive means available to prevent the
threatened danger; and 7) the order lasts no longer than
necessary to prevent the threatened danger, and is
narrowly drawn to prohibit only those statements having a
meaningful likelihood of materially impairing the Court's
ability to fairly and efficiently determine the anticipated
pre-trial motion "and any legal issues not yet presented to
and adjudicated by the Court, and to conduct a fair trial."
The Court ordered that:
[N]o lawyer representing or who has represented a
party in this criminal matter could make any
extrajudicial statement to the press regarding legal
issues which may be raised concerning electronic or
computer surveillance techniques, which a reasonable
person would expect to be disseminated by means of
public communication, which he knows or reasonably
should know will have a substantial likelihood of
causing material prejudice to the determination of the
anticipated or filed pre-trial motion, or the conducting
of a fair trial in the case.
9
The order was to remain in effect until "any such motion
raising these legal issues is adjudicated by the court."
II.
In light of the oral order, we first must determine whether
we have jurisdiction over the appeal, and if so, what
constitutes the record. We engage in this threshold inquiry
sua sponte, as the parties did not brief any of the
jurisdictional issues. At oral argument, counsel for both
sides argued in favor of our exercising jurisdiction, but a
more searching inquiry is necessary because consent does
not confer appellate jurisdiction.4
A.
The District Court expressed doubt about whether its
December 6, 2000, oral order was appealable. See Supp.
Appx. 31 ("first of all, I don't think the notice of appeal is
effective; there's no written order.") A district court's order
"is ordinarily considered final and appealable under S 1291
only if it `ends the litigation on the merits and leaves
nothing for the court to do but execute the judgment.' "
Quackenbush v. Allstate Ins. Co., 517 U.S. 706 (1996)
(quoting Catlin v. United States, 324 U.S. 229, 233 (1945)).
Under the collateral order doctrine, however, an otherwise
non-final order can be appealed if it finally and conclusively
determines the disputed question, resolves an important
issue separate from the underlying merits, and is effectively
unreviewable after final judgment. See In re Tutu Wells
Contam. Litig., 120 F.3d 368, 378 (3d Cir. 1997) (citing
Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546
(1949)).
In this case, the District Court finally and conclusively
entered a gag order against Manno. The gag order was
separate from the underlying merits of Scarfo's guilt or
innocence. The order concerned Manno's First Amendment
rights, not Scarfo's or anyone else's Constitutional rights.
_________________________________________________________________
4. There being no "unyielding jurisdictional hierarchy," Ruhrgas AG v.
Marathon Oil Co., 526 U.S. 574, 577 (1999), we approach these
preliminary and jurisdictional inquiries in no particular order.
10
See United States v. Brown, 218 F.3d 415, 422 (5th Cir.
2000) (defendant state official's appeal of gag order was
collateral to the criminal action pending against him).
Although we could review a gag order after entry of a final
judgment, doing so could be at considerable expense of the
silenced party's constitutional rights. Moreover, in this
instance, the party is no longer Scarfo's attorney in the
underlying criminal proceedings. Hence, the collateral order
doctrine confers appellate jurisdiction over Manno's appeal.
B.
Manno filed his notice of appeal on December 8, 2000.
The Government argues that the notice of appeal was filed
prematurely under Fed. R. App. Proc. 4(a)(2), and
additionally because the District Court stated on December
6 that a written order would issue. The oral order
possessed judicial force and effect;5 it had teeth and had
Manno violated it, he might have been subject to
punishment even if the order had not yet been reduced to
writing. That order's oral status does not alter its
appealability as a collateral order. Manno did not file his
notice of appeal prematurely; the notice of appeal was filed
timely and it effected a closure of the District Court's
jurisdiction over the gag order issue. See Sheet Metal
Workers' Int'l Assn. Local 19M v. Herre Bros., Inc. , 198 F.3d
391, 393 (3d Cir. 1999) ("The filing of a notice of appeal
confers jurisdiction on the Court of Appeals and divests the
_________________________________________________________________
5. In United States v. Schiavo, 504 F.2d 1, 4-5 (1974), the District Court
entered an oral order preventing the press from reporting on a trial. We
found it unnecessary to resolve whether the oral order was an
appealable order because the District Court eventually issued a written
order upon which we decided the appeal. We noted, however, that
"[w]here a district court enters . . . an order which is immediately
appealable as a final decision in a collateral matter, and where such
order binds non-parties for a continuing period of time, the order should
be reduced to written form, stating specifically the terms of the order and
the reasons therefor, and entered on the district court docket." Id. at 7.
We add that the reduction to written form should be done with
reasonable promptness.
We also read Schiavo as implying that an oral order enjoining conduct
in a collateral matter may be appealable.
11
district court of its control over those aspects of the case
involved in the appeal.") (citations omitted). 6
Fed. R. App. Proc. 4(a)(2) states that "[a] notice of appeal
filed after the court announces a decision or order-- but
before the entry of the judgment or order -- is treated as
filed on the date of and after the entry." Rule 4(a)(2) does
not apply here because this rule concerns primarily
whether a notice of appeal was filed in or out of time. See,
e.g., Firstier Mortg. Co. v. Investors Mortg. Ins. Co., 498 U.S.
269 (1991); Lazy Oil Co. v. Witco Corp., 166 F.3d 581 (3d
Cir. 1999); Hindes v. F.D.I.C., 137 F.3d 148 (3d Cir. 1998);
Reo v. United States Postal Svc., 98 F.3d 73 (3d Cir. 1996).
In this case, the timeliness of the appeal is not at issue.
Unlike a judgment,7 if all other jurisdictional requirements
are met, the order's existence in oral form will not by itself
prevent it from being appealable. The District Court should
have moved promptly in reducing its order to writing. See
Schiavo, 504 F.2d at 4-5.
C.
The parties dispute the contents of the record on review.
Manno argues that the record was closed after December 5,
2000, though he conceded at oral argument that he
thought the March 12, 2001, written order should be
reversed. The Government argues that the written order is
_________________________________________________________________
6. In United States v. Samango, 607 F.2d 877, 880 (9th Cir. 1979), the
Court held that the District Court's oral order was not the starting point
for running of the statute of limitations where the Court stated its intent
to issue a written order at a later date. The Court of Appeals reasoned
that if a District Court contemplates issuing a formal judgment, then the
time for appeal does not begin to run until that formal judgment is
entered. In this case, we are not concerned with the timeliness of a
notice of appeal, but rather with the cut-off date for the District Court's
power to enter orders, oral or written, regarding Manno's speech to the
press. Because the District Court's December 6 oral order had judicial
force and effect, and subjected Manno to the possibility of contempt for
violation. It was appealable collaterally despite the Court's stated
intention to put it in writing.
7. See Fed. R. Civ. Proc. 58 ("Every judgment shall be set forth on a
separate document. A judgment is effective only when so set forth . . . .")
12
on appeal, so the record includes the transcripts of the two
hearings, and all of the ancillary filings in the District
Court, including a copy of the December 4, 2000, Inquirer
article.
District Courts are allowed to supplement the record with
a written opinion or amplification of a prior written or oral
recorded ruling. See 3d Cir. LAR 3.1 (1988). Such a writing
must be filed within 15 days of the District Court's receipt
of the notice of appeal. See id. In this case, the notice of
appeal was filed on December 8, 2000. The January 10
hearing transcript and the March 12 written order do not
meet the 15-day deadline of our rule.
When considering litigation transcripts or memoranda
filed by the District Court after the LAR 3.1 15-day window
has expired, "we will look to the nature of the supplemental
memorandum and whether its consideration would
prejudice the defendant." United States v. Bennett, 161 F.3d
171, 186 (3d Cir. 1998). LAR 3.1 "was designed to provide
more flexibility . . . [it was] not intended to inhibit or
discourage District Courts from preparing opinions as they
presently do." Id. In Bennett, this court considered a
Sentencing Memorandum entered by the District Court
after briefing in the Court of Appeals was complete. 161
F.3d 171, 186. We reasoned that the untimely Sentencing
Memorandum was an amplification of the District Court's
sentencing decisions, and would not prejudice the
defendant. See id. In United States v. Pelullo, 14 F.3d 881,
907 (3d Cir. 1994), we observed that "the preferred practice
is for the district court to file any memorandum opinion
before or concurrent with its final judgment. Exigent
circumstances may justify a late memorandum, but delayed
filing may raise suspicions of partiality." The Pelullo court
re-emphasized that LAR 3.1 is not an iron-clad rule, and
inferred that courts would evaluate whether to consider a
District Court's post-appeal submission on a case-by-case
basis.
In this case, the District Court uttered its last word in
March 2000. Although this occurred after Manno had filed
his brief on appeal, it occurred two months before Manno
filed his reply brief. Manno was free to address the District
Court's January transcript and March written order in his
13
reply brief; in fact, he did. Manno sustained no prejudice.
We consider the District Court's January transcript and
March written order as supplementing its reasons for
entering the December 6, 2000, gag order, as well as
defining the exact parameters of the gag order. 8 We do not
consider the District Court's post-December 8, 2000,
actions concerning the gag order as an additional exercise
of jurisdiction over the gag order.
D.
Our jurisdiction is limited constitutionally to live cases
and controversies. See U.S. Const. art. III,S 2. The District
Court's order expires after the Court decides the pre-trial
motions; at that point, the issue on appeal will be moot.
We retain jurisdiction because this case involves an issue
"capable of repetition, yet evading review." See United
States v. Antar, 38 F.3d 1348, 1356 (3d Cir. 1994) (citing
Southern Pacific Term. Co. v. Interstate Comm. Comm'n, 219
U.S. 498, 515 (1911)). The capable of repetition-evading
review doctrine has two requirements: 1) the challenged
action must have been too short in duration to be fully
litigated prior to its cessation or expiration; and 2) there
must have been a reasonable likelihood that the same
complaining party would be subjected to the same action
again. See id. (citing Weinstein v. Bradford, 423 U.S. 147,
149 (1975)).
A gag order lasting until a pre-trial motion pertaining to
the offensive subject is filed and decided, is too short in
duration to be litigated prior to its expiration. In this case,
the gag order is collateral to the merits of the criminal
action, so there is no reason for the criminal action to wait
for a decision on this appeal. By the time Manno could
obtain an appellate decision on the merits, the gag order in
all probability would have expired. Without review in this
case's current posture, there is a virtual certainty that a
_________________________________________________________________
8. This outcome is the same as if we had held that Manno's notice of
appeal was filed prematurely under Fed. R. App. Proc. 4(a)(2). Either
way, the record would include both hearing transcripts and the March
12, 2001, written order, as well as a copy of the Inquirer article.
14
party like Manno would be subjected to the same
unreviewable action in the future. Accordingly, we retain
jurisdiction to decide the appeal on its merits.
III.
The rights protected by the First Amendment to the
United States Constitution frequently are in tension with
other constitutional rights. The task of resolving that
tension without unduly burdening a competing right has
unceasingly occupied all levels of the federal courts. We
return to this familiar but no less difficult setting.
A.
"It is a prized American privilege to speak one's mind,
although not always with perfect good taste, on all public
institutions." New York Times Co. v. Sullivan , 376 U.S. 254,
269 (1963) (citing Bridges v. California, 314 U.S. 252, 270
(1941). At the same time, "a trial judge has an affirmative
constitutional duty to minimize the effects of prejudicial
pretrial publicity." Gannett Co. v. DePasquale, 443 U.S.
368, 378 (1978). In Pennekamp v. Florida, Justice
Frankfurter discussed the tension we find in this appeal:
Formulas embodying vague and uncritical
generalizations offer tempting opportunities to evade
the need for continuous thought. But so long as men
want freedom they resist this temptation. Such
formulas are most beguiling and most mischievous
when contending claims are those not of right and
wrong but of two rights, each highly important to the
well-being of society.
328 U.S. 331, 351 (1945) (Frankfurter, J. concurring). The
Supreme Court "has held that the Constitution[does] not
allow absolute freedom of expression -- a freedom
unrestricted by the duty to respect others needs fulfillment
of which makes for the dignity and security of man." Id.
(citing Schenck v. United States, 249 U.S. 47 (1918). Justice
Holmes's famous "clear and present danger" test is the
penultimate embodiment in First Amendment law of the
principle that freedom of speech is critically important, but
15
that "its exercise must be compatible with the preservation
of other freedoms essential to a democracy and guaranteed
by our Constitution." Pennekamp, 328 U.S. at 353
(Frankfurter, J. concurring).
To have full force and effect, the First Amendment may
not be trimmed just because of appealing circumstances;
the regulation of speech-connected activities must be
carefully restricted. See Tinker v. Des Moines Sch. Dist., 393
U.S. 503, 513 (1968). "The privilege of `free speech', like
other privileges, is not absolute; it has its seasons; a
democratic society has an acute interest in its protection
and cannot indeed live without it; but it is an interest
measured by its purpose." NLRB v. Federbush Co., 121 F.2d
954, 957 (2d Cir. 1941) (Hand, J.).
In many cases, the Supreme Court has provided
guidance on balancing competing rights in the First
Amendment context. Specifically, in Gentile v. State Bar of
Nevada, 501 U.S. 1030 (1990), the Court examined the
competing interests between lawyers in a pending case
wishing to speak to the media about that case, and a
district court attempting fairly to adjudicate that action. In
this case, we face a similar tension between a disqualified
attorney's right to speak to the media about a pending case,
and a trial court's constitutional duty to try a case fairly
without the negative impact of unfavorable pretrial
publicity.
B.
We exercise plenary review over the legal standards
applied in the District Court. See United States v. Antar, 38
F.3d 1348, 1356-57 (3d Cir. 1994). In the First Amendment
context, reviewing courts have a duty to engage in a
searching, independent factual review of the full record. See
Antar, 38 F.3d at 1357 (citing New York Times Co. v.
Sullivan, 376 U.S. 254, 285 (1964)); Fabulous Assoc., Inc. v.
Pennsylvania Public Utility Com'n, 896 F.2d 780, 784 (3d
Cir. 1990) (noting the exacting standard of review
traditionally applied to state actions impacting on rights
protected by the First Amendment). The Supreme Court has
emphasized an appellate court's obligation independently to
16
examine the whole record to ensure "that the judgment
does not constitute a forbidden intrusion on the field of free
expression." Bose Corp. v. Consumers Union of U.S., Inc.,
466 U.S. 485, 499 (1984) (citing New York Times Co. v.
Sullivan, 376 U.S. 254, 284- 286 (1964); NAACP v.
Claiborne Hardware, Co., 458 U.S. 886, 933-934 (1982);
Greenbelt Cooperative Pub. Assn. v. Bresler, 398 U.S. 6, 11
(1970); St. Amant v. Thompson, 390 U.S. 727, 732- 733
(1968)).
No cases are cited to us in this circuit or in the Supreme
Court discussing the precise issue on appeal, and our own
research has not uncovered any. Some cases concern gag
orders on lawyers representing defendants, others discuss
gag orders on defendants themselves, and others concern
restrictions on the press. However, we know of no case
which deals with the constitutionality of an order gagging a
criminal defendant's former attorney. Manno argues that
following his disqualification, he was no longer an attorney
in the case; instead, he was a member of the public at
large, free to make statements to the press. The
Government responds that Manno was still a lawyer obliged
under legal canons to avoid making Scarfo's case in the
press.
The District Court stated it had inherent power to control
the proceedings before it by precluding a disqualified
attorney from making comments to the press on an
important issue before a court had adjudicated it. Among
the reasons the Court put forth in support of the gag order
were: 1) to maintain decorum; 2) to maintain fairness; 3) to
avoid prejudicing the Court before it made decisions; and 4)
to allow for the orderly, "nice," and civil flow of proceedings.
The Court at one point stated that it was not concerned
about tainting the potential jury pool, but later invoked the
risk of jury pool tampering in support of the order.
A gag order like the one issued against Manno is a
restraint on speech that raises rights under the First
Amendment of the United States Constitution. The
Supreme Court and Courts of Appeal have announced
varying standards to review gag orders depending on who
or what is being gagged. The press, the public, criminal
defendants, and attorneys have received separate analytical
17
treatment by the Supreme Court concerning restrictions on
speech. See, e.g., Seattle Times Co. v. Rhinehart, 467 U.S.
20 (1984) ("[O]n several occasions this Court has approved
restriction on the communications of trial participants
where necessary to ensure a fair trial for a criminal
defendant."); Gannett Co., Inc. v. DePasquale , 443 U.S. 368
(1979) (under certain circumstances, neither the public nor
the press has an independent constitutional right to insist
on access to a pretrial suppression hearing); Branzburg v.
Hayes, 408 U.S. 665 (1972) (concerning a reporter's
claimed privilege from being compelled to disclose names of
confidential sources); United States v. Brown , 218 F.3d 415
(5th Cir. 2000) (appeal by defendant politician contesting
validity of gag order); United States v. Ford , 830 F.2d 596,
598 (6th Cir. 1987) (same).
As a rule, "the speech of lawyers representing clients in
pending cases may be regulated under a less demanding
standard than that established for regulation of the press."
Gentile v. State Bar of Nevada, 501 U.S. 1030, 1074 (1990).
In Gentile, the Court addressed a lawyer's appeal from a
Nevada Bar Disciplinary Board's finding that he violated a
rule prohibiting lawyers from making extrajudicial
statements to the press when they knew or reasonably
should have known the statements would have a
substantial likelihood of materially prejudicing an
adjudicative proceeding. Gentile had held a press
conference the day after his client was indicted on criminal
charges. The Supreme Court framed the issue as "whether
a lawyer who represents a defendant involved with the
criminal justice system may insist on the same standard
[as applied to a prior restraint on the press-- clear and
present danger,] before he is disciplined for public
pronouncements about the case, or whether the state may
penalize that sort of speech upon a lesser showing." Gentile,
501 U.S. at 1071.
The Gentile Court dealt with a slightly different situation
than we have before us. It punished an attorney under a
state rule for having made comments to the press about his
client's innocence in a pending case. In our case, The Court
prohibited Manno, a disqualified attorney, from making any
future statements to the press. Gentile expressed "no
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opinion on the constitutionality of a rule regulating the
statements of a lawyer who is not participating in the
pending case about which the statements are made."
Gentile, 501 U.S. at 1072 n. 5. However, the Court
discussed thoroughly the standards used in restricting the
speech of attorneys in general, and as discussed below,
that is the appropriate standard in this case. That Manno
no longer represented Scarfo when the District Court
enjoined him is a slight deviation from Gentile , and does
not distract from our application of the Supreme Court's
reasoning.
A lawyer's right to free speech in a pending case may be
circumscribed in the courtroom and is limited outside the
courtroom as well. See Gentile, 501 U.S. at 1073. A lawyer
admitted to the bar of a court must expect the disciplinary
limitations of his profession. Lawyers should not be
surprised when they learn that their chosen professional
status, as in the cases of judges, restricts their conduct and
speech at times.
Gentile held that the "substantial likelihood of material
prejudice" standard is constitutionally permissible to
balance the attorney's interest in free speech against the
state's interest in fair judicial determinations. Extrajudicial
statements by attorneys pose a threat to a pending
proceeding's fairness because attorneys have access to
information through discovery and client communication,
and because their statements are likely to be received as
especially authoritative. The "substantial likelihood of
material prejudice" standard fairly balances the integrity of
the justice system with attorneys' constitutional rights.
Under Gentile, we examine the record to determine whether
the District Court's injunction in this case prevented a
substantial likelihood of material prejudice to the judicial
proceeding.9 Any limitation on the attorney's speech must
_________________________________________________________________
9. In United States v. Brown, 218 F.3d 415 (5th Cir. 2000), the Court
applied Gentile to a District Court order prohibiting attorneys, parties,
and witnesses from discussing an ongoing criminal action with any
public communications media. Importantly, the Court of Appeals agreed
with the District Court's finding that the possible impact of extrajudicial
statements included the creation of a "carnival atmosphere," and tainting
of the un-sequestered jury. This finding, supported by the record, was
pivotal in establishing the substantial likelihood of prejudice required by
Gentile for a gag order to stand. These are the types of findings absent
in this case.
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be narrow and necessary, carefully aimed at comments
likely to influence the trial or judicial determination. See
Gentile, 501 U.S. at 1075.
Under the facts of this case, we also decide whether a
slightly more compelling reason is required for a District
Court to quash the speech of an attorney who no longer
represents the criminal defendant in the underlying action.
Manno portrays himself as an everyday citizen following his
disqualification, but that is plainly not so. The District
Court perceptively found that Manno was longtime counsel
to Scarfo and was known by many, including the media, as
having close ties with Scarfo. Manno was the beneficiary of
extensive client communication, and his statements were
received by the press as especially authoritative. The press
presumably sought out Manno, even though he was
disqualified, because they presumed that he had
information of the sort that only a retained lawyer would
know. See Supp. Appx. 39 ("Manno: The Philadelphia
Inquirer came to me, they asked me questions.")
Manno was, for all intents and purposes, in the same
position as the attorney referred to in the Gentile case -- an
insider privy to facts, and a public status removing him
from the leagues of common observers or uninvolved
attorneys. He was not merely a lawyer with a passing
interest in the case. Even following his disqualification,
Manno's ties to Scarfo were much more significant than
that of a common court observer and member of the public.
Gentile pertains to gag orders on trial participants; Manno,
no longer a trial participant, still retained the raiment and
appearance of one and, therefore, was in a position to still
materially prejudice the pending proceedings before the
Court. Therefore, it is reasonable to apply the"substantial
likelihood of material prejudice" standard announced in
Gentile to this case. Cf. United States v. Brown, 218 F.3d
415, 426 (5th Cir. 2000) (describing the Gentile opinion as
approving Nevada's substantial likelihood standard to
"attorneys," and not differentiating between a current
attorney for a party or the former attorney of a party).
The "evils" against which a gag order may appropriately
apply are those generally associated with risk of prejudice
to the jury pool. See Gentile, 501 U.S. at 1075. The
20
Supreme Court is also concerned with any other form of
prejudice to the actual outcome of a trial. See id. Preventing
a "carnival atmosphere" in a high profile case is also a
legitimate reason to gag an attorney. See Brown , 218 F.3d
at 429; see also Sheppard v. Maxwell, 384 U.S. 333 (1966).
The Government strenuously defends a New Jersey local
rule prohibiting extrajudicial comments, and a New Jersey
ethical rule doing the same. The District Court relied on
both as a basis for its order.10 However, the District Court's
injunction must stand or fall on its own terms in the
factual setting described in the record. We do not perceive
credible findings of any risk of material prejudice, much
less a substantial likelihood of material prejudice. It is
difficult to discern a reasonable source of prejudice in this
case. There was little, if any, prejudice to the jury pool
because Manno's comments, and the gag order itself,
pertained only to an issue of admissibility of evidence -- a
determination made by the judge, not a jury. The Court's
decision on admissibility of the keystroke logging device
evidence, even if reported in the press, would at most alert
citizens to the existence of the case, but not to any facts
pertaining to guilt or innocence as in Gentile . The District
Court apparently agreed when on January 10, 2001, it
stated, "I'm not talking about affecting the jury. . . . You
folks are off in left field when you talk about[affecting the
jury]. I was concerned whether we talk about how I felt --
orderly presentation of significant and important arguments
by counsel . . ."
The District Court's primary concern was the risk of
prejudice to it in deciding the legal issues not yet before it.
See Supp. Appx. 56 (3/12/01 order); Appx. 19 (12/5/00
transcript). But there was no risk of prejudice to the Judge
because judges are experts at placing aside their personal
biases and prejudices, however obtained, before making
reasoned decisions. Judges are experts at closing their eyes
and ears to extraneous or irrelevant matters and focusing
only on the relevant in the proceedings before them. The
_________________________________________________________________
10. These rules are not directly at issue in this appeal, and we express
no opinion concerning them except as to the result of their application
in this case.
21
District Court did not articulate any specific or general
prejudice it would suffer, and we can see none. The closest
the Court came to identifying prejudice was its statement
that "I was concerned whether we talk about how I felt --
orderly presentation of significant and important arguments
by counsel." The District Judge appears to have been upset
about reading of a matter pertaining to a case before him
in the newspaper before hearing about it in his courtroom.
See Supp. Appx. 34 ("I was upset because, in my judgment,
you were trying the motion in front of the press . .. .") His
concern does not rise to any measurable level of prejudice.
An perturbed judge is not necessarily a prejudiced judge
especially when, as in this case, he is an experienced judge.
A fair and impartial presentation of the case would not be
disrupted or materially prejudiced by Manno's pretrial
extrajudicial statement to the press. The statement may
have been imbalanced or even irritating because of the
timing and content, but not materially prejudicial. If the
District Judge had some undisclosed reason for suffering
prejudice from the newspaper article, his proper course of
action was recusal, not a prior restraint on all of Manno's
speech relating to this case.
We always are mindful of the importance of an orderly
and fair trial, especially one in which the liberty of an
individual and important interests of the public are at
stake. However, we are also concerned with the
longstanding value and importance of the protection of First
Amendment rights. Public awareness and criticism have
great importance, especially where, as here, they concern
alleged governmental investigatory abuse. See Gentile, 501
U.S. at 1035. Without evidence that Manno's statements to
the press jeopardized the fairness of the trial or in any way
materially impaired or prejudiced the judicial power of the
court, we can see no valid reason to interdict a lawyer's
First Amendment right of speech, even of one disqualified
in the case.
IV.
In summary, aside from informing the public about an
important legal issue about to be raised before the court,
22
Manno's comments on an interesting legal issue did not
pose a threat to the fairness of the trial or to the jury pool.
Nor did the District Court identify a risk of a carnival-type
atmosphere in the case, although organized crime cases
often draw massive public interest. See, e.g. , United States
v. Cutler, 58 F.3d 825 (2d Cir. 1995). There having been no
identifiable prejudice or risk of prejudice, the gag order was
erroneous. The order of the District Court will be reversed.
Costs will be taxed against the appellee.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
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