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UNITED STATES v. BINGHAM

August 13, 1991

UNITED STATES OF AMERICA, Plaintiff,
v.
KENNY BINGHAM, et al., Defendants


James F. Holderman, United States District Judge.


The opinion of the court was delivered by: HOLDERMAN

JAMES F. HOLDERMAN, UNITED STATES DISTRICT JUDGE

 This multi-defendant criminal case is one of a series of criminal cases filed in this federal district court in the past few years *fn1" as a result of a multi-jurisdictional investigation into alleged crimes by persons alleged to have been associated with the Chicago street gang the El Rukns. *fn2" The indictment in this case alleges, among other criminal violations, RICO conspiracy, narcotics conspiracy, and numerous racketeering acts which include allegations of multiple murders, kidnapping, witness intimidation, obstruction of justice and narcotics distribution.

 On August 9, 1991 the jury concluded its deliberations as to the thirteen alleged El Rukn members on trial. That trial began April 9, 1991. The trials of certain other defendants named in the indictment were severed and are scheduled to begin later this year. The charges against one person named as a defendant in the indictment have been dropped. Other defendants have pleaded guilty and still others remain fugitives.

 This opinion deals not with the defendants nor with the indictment's allegations but instead with a collateral matter: the conduct of two of the defense counsel, Charles J. Aron and Deborah J. Gubin, on the eve of the jury selection in the now concluded trial. The court believes that conduct was improper and contemptuous. Consequently the court recommends the Executive Committee of this United States District Court examine the matter and decide whether to impose disciplinary sanctions pursuant to the appropriate procedures, see Local General Rule 3.50, et seq., and the United States Attorney of the Northern District for Illinois investigate and decide whether to file criminal contempt charges under 18 U.S.C. Section 401(3) against Mr. Aron and Ms. Gubin, attorneys of record in this case. See, e.g., United States v. Kozel, 908 F.2d 205 (7th Cir. 1990).

 I. DISCUSSION OF THE FACTS

 For many years Local Criminal Rule 1.07 ("Rule 1.07") of this United States District Court has set forth the duties of counsel relating to extrajudicial statements about pending criminal cases. Rule 1.07 states in pertinent part that:

 
a. Duty of Attorneys Not to Release Or Authorize Release of Information. It is the duty of the United States Attorney or a lawyer not to release or authorize the release of information or opinion which a reasonable person would expect to be disseminated by means of public communications, in connection with pending or imminent criminal litigation with which he/she or the firm is associated, if such dissemination poses a serious and imminent threat of interference with the fair administration of justice.
 
* * * *
 
d. During the trial of any criminal matter including the period of selection of the jury, no United States Attorney or lawyer or law firm associated with the prosecution or defense shall give or authorize any extrajudicial statement or interview, relating to the trial or the parties or issues in the trial which a reasonable person would expect to be disseminated by means of public communication, except that the United States Attorney, or lawyer or law firm may quote from or refer without comment to public records of the court in the case. *fn3"

 Additionally, at the March 4, 1991 status report in this case, with Mr. Aron and Ms. Gubin present, the court stated, among other things:

 
I don't anticipate that any of you experienced lawyers will make any comments to the media . . . but I want all counsel to be aware that comments to the media should be kept to a minimum and avoided unless there is some pressing need to talk to the media. *fn4"

 (March 4, 1991, Tr. 25.)

 On March 29, 1991 the court granted the "Government's Motion for Anonymous Jury" without detailing fully its reasoning so as to minimize possible prejudice resulting from media commentary regarding that issue so close to the scheduled trial date.

 On April 9, 1991, the first day of trial, the court met with counsel and the parties. The court's explanation of procedures to counsel and the court's ruling on newly filed motions consumed the day so the commencement of jury selection was deferred to the next day. Among other matters discussed on April 9, the court explained the procedure which would be followed the next morning in selecting the anonymous jury (April 9, 1991, Tr. 13-21). The court's explanation included a general description of what the venire would be told as to why the jury was anonymous (April 9, 1991, Tr. 16-17).

 Also on April 9, 1991, the court addressed a defense motion for change of venue which had as its premise the prejudicial nature of the pretrial publicity surrounding the case. The court in denying that motion stated, "We'll just wait and see [tomorrow] whether this panel of jurors has been so exposed to news media and the articles listed in that motion that they won't be able to be fair and impartial" (April 9, 1991, Tr. 78-79).

 When counsel left the courtroom for the day on April 9, 1991, the court certainly did not expect any of them to personally contribute to the case's media exposure that evening. There is no question that Ms. Gubin and Mr. Aron, by submitting themselves to be interviewed on television and making the statements they made for broadcast to the Chicagoland area, the same area from which the venire would be coming the following morning, created a "serious and imminent threat of interference with the fair administration of justice." (Rule 1.07.)


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