## Facts

- John Gotti was prosecuted in the Eastern District of New York on racketeering charges in a highly publicized case.
- Local Criminal Rule 7 restricted attorney extrajudicial statements likely to be disseminated and likely to interfere with a fair trial.
- The trial judge repeatedly admonished counsel, including Bruce Cutler (Gotti’s attorney), to avoid trying the case in the press and issued specific orders directing compliance with Local Rule 7.
- Despite the admonitions and orders, Cutler made repeated public statements to the media about the merits of the prosecution, including attacks on the government and commentary on evidence.
- The trial judge initiated criminal-contempt proceedings by order to show cause; after recusal, the matter was reassigned to another district judge.
- Following a five-day bench trial, Cutler was convicted of criminal contempt under 18 U.S.C. § 401(3) and sentenced to 90 days’ house arrest, three years’ probation, and a 180-day suspension from practice in the district.

## Issues

1. Whether a contemnor may collaterally challenge, in an appeal from a contempt conviction, the constitutionality or validity of underlying trial-publicity orders and the local rule when direct review was available.
2. Whether the evidence was sufficient to prove beyond a reasonable doubt that Cutler willfully violated clear and specific court orders, with careful appellate review due to First Amendment interests.
3. Whether the sentence—including probation conditions and suspension from practice—was an abuse of discretion.

## Decision

- The court affirmed the criminal-contempt conviction.
- The court held that Cutler’s constitutional challenge to the underlying orders and Local Rule 7 was barred by the collateral bar rule because he could have sought direct appellate review, mandamus, or declaratory relief.
- The court held the evidence sufficient to establish willful disobedience of clear and unambiguous orders, including repeated violations after explicit warnings.
- The court affirmed the sentence in all material respects, declining to modify probation conditions or other components despite noting concerns about certain aspects of probation.

## Legal Principles

- Under the collateral bar rule, a person subject to a court order generally must comply unless and until it is modified or reversed; when direct review is available, the order’s alleged unconstitutionality ordinarily cannot be raised as a defense to contempt.
- Criminal contempt under 18 U.S.C. § 401(3) requires proof beyond a reasonable doubt of a clear and reasonably specific order and willful violation.
- In contempt cases implicating speech, appellate courts must carefully review the application of speech-restrictive orders to the facts, while recognizing judicial authority to protect the fairness of pending proceedings through enforceable trial-publicity restrictions on attorneys.
- Willfulness may be inferred from repeated violations and reckless disregard of professional obligations in the face of explicit judicial warnings and directives.

## Conclusion

The Second Circuit upheld sanctions against defense counsel for criminal contempt based on repeated media commentary about a pending prosecution, ruling that the attorney could not retroactively attack the validity of the publicity restrictions in the contempt appeal and that the record supported willful disobedience of clear court orders.


United States v. Cutler, 58 F.3d 825 (2d Cir. 1995)