United States v. Bruce Cutler

The underworld exploits of John Gotti and the courtroom legerdemain of his attorney, Bruce Cutler, are now the stuff of legend. Cutler’s last appearance on Gotti’s behalf was in the United States District Court for the Eastern District of New York (I. Leo Glas-ser, Judge). Notwithstanding the court’s pre-trial admonition and orders to comply with Local Criminal Rule 7 of the Southern and Eastern Districts of New York (“Local Rule 7”), Cutler spoke repeatedly and heatedly to the media on the merits of the government’s case against his client.

Exasperated with Cutler, Judge Glasser issued an order to show cause why he should not be held in criminal contempt. Judge Glasser then recused himself, and the matter was reassigned to then-Chief Judge Platt. After a five-day bench trial, the district court found Cutler guilty of criminal contempt, in violation of 18 U.S.C. § 401(3). The court sentenced Cutler to ninety days’ house arrest and three years’ probation, and also suspended him from practicing law in the Eastern District of New York for 180 days.

On appeal, Cutler argues that: (1) the orders and Local Rule 7 are unconstitutional; (2) the evidence, under the heightened standard applicable in First Amendment cases, does not support his contempt conviction; and (3) several aspects of his sentence were an abuse of discretion. Because Cutler could have challenged the orders (and Local Rule 7) by appealing them, or seeking a writ of mandamus or declaratory relief, his constitutional challenge is collaterally barred. Moreover, the evidence amply supports his conviction. Finally, although aspects of his probation give us pause, we will not disturb his sentence.

BACKGROUND

John Gotti was arrested on December 11, 1990, on racketeering charges. The murder of Paul Castellano, a rival mobster, was one of many predicate acts. This marked the fourth time that the government tried to end Gotti’s criminal career, the previous attempts having failed. The then-United States Attorney, Andrew Maloney, announced the indictment at a press conference, where he called Gotti a “murderer, not a folk hero” and boasted that this time the government’s case, which included extensive wiretap evidence, was much stronger than in the prior trials.

Gotti’s lawyer, Bruce Cutler, a member of the New York Bar, countered by calling the prosecutors “publicity-hungry” and on a vendetta to frame his client. He was quoted in New York’s four major newspapers — the Daily News, Newsday, the New York Post, and the New York Times. Hé also gave an interview on Prime Time Live, a nationally-broadcast television show, where he emphatically denied that Gotti was a mob boss.

A. Local Rule 7

Cutler’s and Maloney’s comments seemed to be in tension with Local Rule 7, to phrase it charitably. That rule provides:

It is the duty of the lawyer or law firm not to release or authorize the release of information or opinion which a reasonable person would expect to be disseminated by means of public communication, in connection with pending or imminent criminal litigation with which a lawyer or law firm is associated, if there is a reasonable likelihood that such dissemination will interfere *829 with a fair trial or otherwise prejudice the due administration of justice....

From the time of arrest, issuance of an arrest warrant or the filing of a complaint, information or indictment, in any criminal matter until the commencement of trial or disposition without trial, a lawyer or law firm associated with the prosecution or defense shall not release or authorize the release of any extrajudicial statement which a reasonable person would expect to be disseminated by means of public communication, relating to that matter and concerning:

(1) The prior criminal record (including arrests, indictments or other charges of crime) or the character or reputation of the accused, except that the lawyer or law firm may make a factual statement of the accused’s name, age, residence, occupation and family status; and if the accused has not been apprehended, a lawyer associated with the prosecution may release any information necessary to aid in the accused’s apprehension or to warn the public of any dangers the accused may present;

(4) The identity, testimony or credibility of prospective witnesses, except that the lawyer or law firm may announce the identity of the victim if the announcement is not otherwise prohibited by law;

(6) Any opinion as to the accused’s guilt or innocence or as to the merits of the case or the evidence in the case.

E.D.N.Y.Crim.R. 7(a).

B. The December 20, 1990 “Admonition”

When a detention hearing was scheduled, the district court granted Gotti’s motion to close the hearing and seal all evidentiary submissions, including transcripts from the wiretaps. See United States v. Gotti 753 F.Supp. 443 (E.D.N.Y.1990).

On December 20, 1990, after the hearing, Judge Glasser admonished the parties (and Cutler in particular) to try the ease only in the courtroom, not in the press:

I feel very strongly about the conduct of this trial in an orderly and fair way and I feel very strongly about Local Rule 7 of the local rules of this Court.... That rule spells out, I believe, in some detail, what it is that it is appropriate for defense lawyers to be commenting about. You Mr. Cutler. ...

My admonition simply is, observe Local Rule 7

The statements that this is a circus, it is a frame up, try your case in the courtroom. Okay I feel strongly about that.... It applies to the government, it applies to the defense. I propose to take such steps as I regard as being appropriate.

Ladies and gentlemen, again, I am serious about fair trials. I am serious about Local Rule 1.... I don’t want this trial to be conducted anywhere else but in this courtroom, in accordance with the rules, which are designed to [ejnsure fairness for the government, fairness for the defendant.

Undeterred, Cutler held a press conference outside the courthouse. He declaimed that the government had “thrown the Constitution out the window,” mocked the government’s witnesses as “bums,” and erroneously described the government’s tape recordings of wire-tapped conversations as the same ones used in earlier prosecutions. Cutler’s performance at the press conference made the local news that night and the tabloids the next morning.

C. The January 9, 1991 Order

Three weeks later, the parties again appeared before Judge Glasser. The judge was not pleased with the continuing swirl of publicity, and again he instructed both parties to comply with Local Rule 7:

... Local Rule 7 ... carefully proscribes out-of-court comments by defense and by prosecutors.

_ I want [the leaks] to stop.

.... I’ve made my position clear and I’ll exercise all the power which is at my disposal to do whatever I can to enforce the orders of this Court and to hold those *830 persons who I may discover to be responsible for violating those orders accountable. I don’t see any need to belabor that.

Nonetheless, the very next day, Newsday quoted Cutler about the tapes. He said the tapes contained denials by Gotti of involvement in the murder of Paul Castellano.

A week later, the government moved to disqualify Cutler and his co-counsel, Gerald Shargel, from representing Gotti during the trial, contending that Cutler and Shargel were “house counsel” for Gotti, and thus likely to be called as witnesses. Although the government filed its motion under seal, the district court elected to hold a public oral argument on the motion. After the hearing, New York’s major daily newspapers, the television networks, and the Associated Press (the “media”), supported by the government, moved to unseal the briefs and evidence submitted in connection with the disqualification motion.

Gotti’s lawyers opposed the motion, arguing that dissemination of the disqualification briefs and evidence would so taint potential jurors as to deny him a fair trial. The media, in support of the motions, noted that Cutler had already argued Gotti’s case to the public and to the potential jury pool by “presenting] a compelling, sympathetic portrait of a notorious defendant as a victim of prosecutorial zeal” and “government overreaching in the extreme.” The court reserved decision on both the disqualification motion and the motion to unseal the briefs and record.

Meanwhile, Cutler continued to ignore the court’s direction to comply with Local Rule 7. He was quoted in February, March, and July in all four major New York dailies. In addition, he gave a long interview to Interview Magazine, a glossy magazine, in which he repeated his allegations about government vendettas and accused the government of suborning perjury. He also showed up on 60 Minutes, praising Gotti for his loyalty, integrity, and honesty, denying the existence of the mob, comparing the prosecutors to Senator Joseph McCarthy, and deprecating the tapes. Finally, he appeared on a local television news program, Thirteen Live, where he accused the government of persecuting Gotti.

D. The July 22, 1991 Order

After four letters of complaint from the government about Cutler’s extrajudicial statements, the parties appeared before Judge Glasser a third time on July 22, 1991. Judge Glasser once again ordered counsel to follow Local Rule 7: “Local Rule 7 ... is, in essence, a kind of gag order. The thing you ought to say is, there is a ease pending, the rules of this Court say I can’t comment on it.” Judge Glasser made clear he wanted no more comments to the press.

Days later, the district court disqualified Cutler and Shargel, primarily because they were likely to be called as witnesses at Gotti’s trial. United States v. Gotti 171 F.Supp. 552 (E.D.N.Y.1991). Two days after that, the court unsealed the tapes played at Gotti’s detention hearing, noting that Cutler had called into question the integrity of the court and finding that any “[additional publicity which may flow from unsealing the record at this time would ... not give rise to a probability, substantial or otherwise, that the defendants’ right to a fair trial will be prejudiced.” United States v. Gotti 771 F.Supp. 567, 569 (E.D.N.Y.1991) (emphasis added).

In the following week, stories about Gotti adorned the front pages of New York’s dailies, together with excerpts from the transcripts of the wire-tapped conversations. In addition, television news programs obtained copies of the tapes of the conversations and repeatedly broadcast portions of them, allowing potential jurors to hear Gotti describe murders and other crimes.

Although he no longer represented Gotti in connection with the racketeering charges, Cutler countered with a media barrage of his own. The piece de resistance came on August 13, 1991, a mere month before the scheduled trial date. (Gotti’s new lawyers expected Judge Glasser to adjourn the trial to give them more time to prepare, but an adjournment had not yet been granted.) That day, Cutler appeared on a one-hour live television show called 9 Broadcast Plaza. His performance, aptly summarized by the district court, included the following:

*831 wherever Gotti lives, there is no problem with drugs and crime in the neighborhood; Gotti is not a danger to any community other than federal prosecutors; Gotti has “admirable qualitiesf,”] including being courageous, loyal, sincere, selfless and devoted to his family; Gotti is a “good man” and an “honorable man”; Gotti is not a “ruthless man”; Gotti is one of “the most compassionate men” Cutler knows; Gotti is “deadly against drugs”[;] _the prosecutors “are doing everything they can to destroy John Gotti” and are “dealing in vendettasf,”] “on a witch huntf,”] and “framing people”; the Government “threw the Constitution out the window” and is on a “vendetta” against Gotti; the prosecution is an “example of MeCarthyism”; Gotti was being “persecuted” because of his “lifestyle” and “friends”; the prosecutors want to “destroy” Gotti “because of his popularity” and because “he’s deadly against drugs”; the “evidence is phony”; the “tapes are phony”[;] .... the Government is “creating cases against individuals they target” by “giving freedom to drug dealers and murderers if they will sing the government’s tune against the likes of John Gotti”; and ... jurors realize that “the witnesses he” and that “even the federal investigators he” and that is why they vote “not guilty unabashedly.”

United States v. Cutler, 815 F.Supp. 599, 606 (E.D.N.Y.1993).

E. The Contempt Proceedings

Not surprisingly, the 9 Broadcast Plaza interview provoked yet another government letter complaining about Cutler. This time, Judge Glasser had had enough. He issued an order to show cause why Cutler should not be held in criminal contempt, in violation of 18 U.S.C. § 401(3). The order cited twenty-five instances of media coverage stemming from Cutler’s public comments about the upcoming trial (the vast majority coming after the January 9 order), in which a common theme emerged: Gotti would be vindicated again; the prosecutors were a “sick and demented lot”; and the government’s tapes were “snippets dehberately taken out of context.” The highhght was Cutler’s performance on 9 Broadcast Plaza.

After appointing a special prosecutor, Judge Glasser recused himself, and the matter was reassigned to then-Chief Judge Platt for trial. Cutler promptly moved to recuse all judges of the Eastern District of New York. He proposed that the case be transferred to the Southern District of New York, or to a judge from the Second Circuit Court of Appeals. The district court denied the motion. United States v. Cutler, 796 F.Supp. 710 (E.D.N.Y.1992).

Cutler then moved to dismiss the criminal contempt charges in their entirety, or, alternatively, some of them. He argued that Local Rule 7 was unconstitutional. The district court denied the motions. Cutler, 815 F.Supp. at 601-18.

Meanwhile, voir dire of the Gotti jury pool began. Of the 215 jurors interviewed, 214 had read or heard something about Gotti. Only forty-seven had formed an opinion about Gotti’s guilt or innocence. Of these, forty-six thought he was guilty; only one believed he was innocent, based on things he had heard in his neighborhood. (Gotti was subsequently convicted and sentenced to life imprisonment; we affirmed. United States v. Locascio, 6 F.3d 924 (2d Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1645, 128 L.Ed.2d 365 and cert. denied, — U.S.-, 114 S.Ct. 1646, 128 L.Ed.2d 365 (1994).)

Cutler’s contempt trial lasted five days. He did not contest the facts the government proffered. Moreover, he did not argue that he had no duty to comply with the orders and Local Rule 7 after his disqualification from representing Gotti. Instead, Cutler challenged the validity of the orders, arguing that Local Rule 7 was unconstitutional. In addition, he called two defense lawyers, James LaRossa and Jack Litman, as expert witnesses. Each testified that Cutler’s comments had little chance of prejudicing the administration of justice or interfering with the trial. Cutler also relied heavily on the government’s position earlier that publicity (from, e.g., unsealing the detention hearing records or the disqualification briefs) would not taint the jury pool. Finally, one of his *832 lawyers summarized the results of the voir dire, which suggested that Cutler’s PR campaign had reaped little reward.

The district court found Cutler guilty of criminal contempt of two specific orders— those of January 9,1991, and July 22,1991— in violation of 18 U.S.C. § 401(3). United States v. Cutler, 840 F.Supp. 959 (E.D.N.Y.1994). The district court held that Cutler was collaterally barred from contesting the validity of Judge Glasser’s orders, since Cutler had chosen to violate them rather than appeal them. In addition, the court held that both orders categorically prohibited certain extrajudicial statements, if a reasonable person would expect the media to disseminate them. Alternatively, the court held that Cutler intended to influence prospective jurors, and that his conduct was reasonably likely to do so.

At sentencing, the district court imposed three years’ probation on Cutler, coupled with three conditions: (1) a ninety-day period of house arrest; (2) a 180-day concurrent period of suspension from practicing within the Eastern District of New York; and (3) 600 hours of “non-legal” community service. Cutler was also ordered to pay a $5,000 fine. Cutler moved to “correct” the sentence to eliminate the probation and to vacate the suspension. The district court denied the motion, but did vacate the $5,000 fine, ordering Cutler to pay only the cost of his supervision during the probationary period.

Cutler now appeals.

DISCUSSION

Cutler challenges the validity of the orders, contending that Local Rule 7 is unconstitutional. In addition, he argues that, under the heightened scrutiny employed in First Amendment cases, the evidence does not support his conviction. Finally, he challenges various aspects of his sentence.

I. The Collateral Bar Doctrine

The government argues that Cutler is collaterally barred from contesting the validity of the orders. We agree.

Under the collateral bar doctrine, a party may not challenge a district court’s order by violating it. Instead, he must move to vacate or modify the order, or seek relief in this Court. If he fails to do either, ignores the order, and is held in contempt, he may not challenge the order unless it was transparently invalid or exceeded the district court’s jurisdiction. See Walker v. City of Birmingham, 388 U.S. 307, 317-21, 87 S.Ct. 1824, 1830-32, 18 L.Ed.2d 1210 (1967); United States v. Terry, 17 F.3d 575, 579 (2d Cir.), cert. denied, — U.S.-, 115 S.Ct. 355, 130 L.Ed.2d 310 (1994); Matter of Providence Journal Co., 820 F.2d 1342, 1346-47 (1st Cir.1986), modified, 820 F.2d 1354 (1st Cir.1987) (in banc), cert. dismissed, 485 U.S. 693, 108 S.Ct. 1502, 99 L.Ed.2d 785 (1988). Even to invoke the “transparently invalid” “exception,” however, a defendant must make some “ ‘good faith effort to seek emergency relief from the appellate court,’ ” Terry, 17 F.3d at 579 (quoting Matter of Providence Journal Co., 820 F.2d 1354, 1355 (1st Cir.1987) (in banc), cert. dismissed, 485 U.S. 693, 108 S.Ct. 1502, 99 L.Ed.2d 785 (1988)), or show compelling circumstances, such as a need to act immediately, excusing the decision not to seek some kind of emergency relief, see Matter of Providence Journal Co., 820 F.2d at 1355.

Cutler concedes that he made no effort whatever to vacate or modify the order, or seek relief in this Court. But, relying on the briefs of the amici curiae, he tries to avoid the collateral bar doctrine by arguing that: (1) there was no appealable order until he was held in contempt; and (2) the orders were transparently unconstitutional. These arguments lack merit.

A. Appealable Order

Cutler assumes that the orders were not appealable when issued. Yet, three years before then, we suggested that such orders were appealable. See Application of Dow Jones & Co., Inc., 842 F.2d 603, 609 (2d Cir.) (“Here nothing prevented the restrained parties in the present litigation from challenging the [gag] order. Hence, despite their unquestioned standing to maintain this appeal, the news agencies may not assert defendants’ *833 First Amendment rights when defendants refuse to challenge that infringement themselves.”), cer t. denied, 488 U.S. 946, 109 S.Ct. 377, 102 L.Ed.2d 365 (1988). We confirmed this in United States v. Salameh, 992 F.2d 445 (2d Cir.1993) (per curiam), where we heard an interlocutory appeal of an oral gag order. Id. at 446-47.

Moreover, if Cutler truly believed that he could not appeal the orders, he unquestionably could have sought mandamus. See Weight Watchers v. Weight Watchers Int'l, Inc., 455 F.2d 770, 775 (2d Cir.1972) (treating appeal of gag order as petition for mandamus); see also In re Perry, 859 F.2d 1043, 1046-50 (1st Cir.1988) (mandamus jurisdiction to hear appeal of gag order); Levine v. United States Dist. Ct. for the Cent. Dist. of Cal., 764 F.2d 590, 593-601 (9th Cir.1985) (writ of mandamus granted modifying gag order), cert. denied, 476 U.S. 1158, 106 S.Ct. 2276, 90 L.Ed.2d 719 (1986); In re Russell, 726 F.2d 1007, 1008-11 (4th Cir.) (gag order reviewable by mandamus), cert. denied, 469 U.S. 837, 105 S.Ct. 134, 83 L.Ed.2d 74 (1984).

Alternatively, Cutler could have sought a declaratory judgment striking down Local Rule 7, upon which the orders were based. See Bernard v. Gulf Oil Co., 619 F.2d 459 (5th Cir.1980) (in banc) (addressing constitutionality of local rule requiring gag orders), aff'd, 452 U.S. 89, 101 S.Ct. 2193, 68 L.Ed.2d 693 (1981); Hirschkop v. Snead, 594 F.2d 356 (4th Cir.1979) (in banc) (same); Chicago Council of Lawyers v. Bauer, 522 F.2d 242 (7th Cir.1975) (same), cert. denied, 427 U.S. 912, 96 S.Ct. 3201, 49 L.Ed.2d 1204 (1976). That Cutler might have been unlikely to obtain a writ of mandamus or prevail in a suit for declaratory relief does not mean he should not have tried.

Finally, Cutler could have asked Judge Glasser to modify the orders. As the district court noted:

If truly confounded by the requirements of Local Rule 7, he could have, at the very least, requested some clarification or guidance from the Court as to the acceptable parameters of extrajudicial speech. But, although he certainly had ample opportunity to do so in his three conferences with Judge Glasser, defendant never objected.

Cutler, 815 F.Supp. at 611; see E.D.N.Y.Crim.R. 7(e) (“[i]n a widely publicized or sensational case, the court, on motion of either party ..., may issue a special order governing extrajudicial statements”).

B. Transparent Invalidity

Cutler attempts to clear these procedural hurdles by contending that the orders were transparently invalid. He points to vagueness, overbreadth, viewpoint discrimination, and prior restraint arguments raised by the amici. We need not address these arguments, however, because he made no “ ‘good faith effort to seek emergency relief from the appellate court,’” Terry, 17 F.3d at 579 (quoting Matter of Providence Journal Co., 820 F.2d at 1355), and can point to no compelling circumstances justifying his decision to ignore the orders, see Matter of Providence Journal Co., 820 F.2d at 1355 (newspaper facing deadline only eight hours after gag order issued acted in good faith). Accordingly, the “transparently invalid” exception cannot save him.

In sum, Cutler could have, and should have, sought modification of the orders in district court, challenged them on a direct appeal, or sought a writ of mandamus or declaratory relief. Having failed utterly to make any good faith effort to undertake even one of these steps, he cannot now challenge the orders’ validity.

II. Sufficiency of the Evidence

Before turning to the elements of the contempt conviction, we must clarify our scope of review. The orders here prohibited Cutler from discussing the merits of the Gotti case with the media only if his comments were reasonably likely to “interfere with a fair trial or otherwise prejudice the due administration of justice.” E.D.N.Y.Crim.R. 7(a). As prior restraints, these orders implicate the First Amendment. See Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 556-62, 96 S.Ct. 2791, 2801-04, 49 L.Ed.2d 683 (1976).

As eight Justices of the Supreme Court have noted, in First Amendment cases, we independently review “the whole record in *834 order to make sure that the judgment does not constitute a forbidden intrusion on the field of free expression.” Gentile v. State Bar, 501 U.S. 1030, 1038, 111 S.Ct. 2720, 2726, 115 L.Ed.2d 888 (1991) (quotation marks and citations omitted) (Kennedy, J., dissenting in part, joined by Marshall, Blackmun, and Stevens, JJ.); accord id. at 1079, 111 S.Ct. at 2747 (Rehnquist, C.J., dissenting in part, joined by White, Scalia, and Souter, JJ.). We do so, however, only for so-called “constitutional facts,” a concept that has confounded courts and commentators alike. See, e.g., Container Corp. v. Franchise Tax Bd., 463 U.S. 159, 176, 103 S.Ct. 2933, 2945-46, 77 L.Ed.2d 545 (1983) (“the line between ‘historical fact’ and ‘constitutional fact’ is often fuzzy at best”); George C. Christie, Judicial Review of Findings of Fact, 87 Nw. U.L.Rev. 14 (1992); Henry P. Monaghan, Constitutional Fact Review, 85 Colum.L.Rev. 229 (1985).

We need not limn the precise contours of the constitutional fact doctrine. Suffice it to say that in First Amendment cases, we must scrutinize carefully the lower court’s application of the relevant standards to the facts at hand. For example, in defamation suits brought by public figures, we review de novo whether the defendants acted with malice. See New York Times Co. v. Sullivan, 376 U.S. 254, 283-91, 84 S.Ct. 710, 727-32, 11 L.Ed.2d 686 (1964). In breach of the peace prosecutions, we review de novo whether the defendants’ conduct actually breached the peace. See Cox v. Louisiana, 379 U.S. 536, 544-51, 85 S.Ct. 453, 458-62, 13 L.Ed.2d 471 (1965); Edwards v. South Carolina, 372 U.S. 229, 235-38, 83 S.Ct. 680, 683-85, 9 L.Ed.2d 697 (1963). In contempt cases involving media coverage critical of the administration of criminal justice in pending cases, we review de novo whether the coverage presents a “threat of clear and present danger to the impartiality and good order of the courts.” See Pennekamp v. Florida, 328 U.S. 331, 335, 66 S.Ct. 1029, 1032, 90 L.Ed. 1295 (1946). These issues resemble mixed questions of law and fact, which we review de novo.

Accordingly, we are prepared to review de novo whether Cutler’s comments were reasonably likely to prejudice the proceedings, as set forth in Local Rule 7. We are also prepared to review de novo whether Cutler knew that his comments were reasonably likely to prejudice the proceedings, for if he did not, he could not have willfully disobeyed the orders. Cf. Gentile, 501 U.S. at 1037-38, 111 S.Ct. at 2725 (“the record does not support the conclusion that petitioner knew or should have known his remarks created a substantial likelihood of material prejudice”) (Kennedy, J., dissenting in part, joined by Marshall, Blackmun, and Stevens, JJ.); id. at 1079, 111 S.Ct. at 2747 (after independently reviewing the record, “we are convinced that petitioner’s statements were ‘substantially likely to cause material prejudice’ ” and that petitioner made them “for the express purpose of influencing the veni-re”) (Rehnquist, C.J., dissenting in part, joined by White, Scalia, and Souter, JJ.).

With these principles in mind, we proceed to parse each element of the contempt conviction. To hold Cutler in criminal contempt, the government had to prove beyond a reasonable doubt that: (1) the court entered a reasonably specific order; (2) defendant knew of that order; (3) defendant violated that order; and (4) his violation was willful. See 1 Leonard B. Sand et al., Modem Federal Jury Instructions: Criminal, 120.02, at 20-26.1 (1994); see also Rojas v. United States, 55 F.3d 61, 63 (2d Cir.1995) (per curiam) (federal court may punish, by fine or imprisonment, a person who “ ‘willfully violate[s] the specific and definite terms of a court order’ ”) (quoting United States v. Twentieth Century Fox Film Corp., 882 F.2d 656, 659 (2d Cir.1989), cert. denied, 493 U.S. 1021, 110 S.Ct. 722, 107 L.Ed.2d 741 (1990)).

A. Reasonably Specific Orders

A defendant cannot be held in contempt absent a “definite and specific” order of which he had notice. United States v. Charmer Indus., Inc., 722 F.2d 1073, 1079 (2d Cir.1983). Obviously, Cutler had notice of the orders; he was present when Judge Glasser issued them. He argues, however, that the orders never made clear what sort of comments were verboten, because the orders referred to two other standards in addition to Local Rule 7: the standard upheld in Gen *835 tile, which prohibits statements substantially likely to cause material prejudice to a judicial proceeding; and the general prohibition against public disclosure of sealed materials. Cutler did not raise this issue below, however, and thus cannot raise it now. See Hill v. City of New York, 45 F.3d 653, 663 (2d Cir.1995) (generally, “appellate courts do not consider issues that were not raised in the district court”).

In any event, Cutler has cited, and we have unearthed, no case where an appellate court reviewed the specificity of an order as a constitutional fact. Accordingly, the ordinary rules regarding sufficiency apply: Cutler bears a heavy burden on this issue, and we view the evidence of the orders’ specificity in a light most favorable to the government. See United States v. LaPorta, 46 F.3d 152, 162 (2d Cir.1994). Moreover, the clarity of an order must be evaluated by a reasonableness standard, considering both the context in which it was entered and the audience to which it was addressed. See United States v. Turner, 812 F.2d 1552, 1565 (11th Cir.1987).

Here, Judge Glasser repeatedly mentioned Local Rule 7 every time he met with counsel to discuss pre-trial publicity. Moreover, on the latter two occasions he expressly ordered counsel to comply with Local Rule 7. And, if this was not enough, on the last occasion, he warned “that unless the kind of statements which I regard as being violative of [Local] Rule 7 don’t cease,” he would initiate contempt proceedings. Given that courts can expect lawyers to comply with less specific orders than laymen, see id., the orders were more than specific enough to support a contempt conviction.

B. Violations of the Orders

Next, Cutler mounts a two-pronged challenge to the finding that he violated the orders. He argues that: (1) even when comments fall within the six categories specifically mentioned in Local Rule 7, the rule proscribes them only if they are reasonably likely to prejudice the proceedings; and (2) none of the comments cited in the order to show cause were reasonably likely to prejudice the proceedings. The first argument has merit; the second does not.

Local Rule 7 proscribes generally any statements by counsel that “a reasonable person would expect to be disseminated by means of public communication, in connection with pending or imminent criminal l