Robert L. Cardillo v. Doubleday & Co., Inc., 518 F.2d 638, 2d Cir. (1975)
518 F.
2d 638
Robert L. CARDILLO, Appellant,
v.
DOUBLEDAY & CO., INC., et al., Appellees.
No. 787, Docket 74-2543.
United States Court of Appeals,
Second Circuit.
Argued May 13, 1975.
Decided June 16, 1975.
Maurice N. Nessen, New York City (Nickerson, Kramer, Lowenstein,
Nessen, Kamin & Soll, New York City, of counsel), for appellant.
James F. Rittinger, New York City (Robert M. Callagy, Satterlee &
Stephens, New York City, of counsel), for appellees.
Before KAUFMAN, Chief Judge, OAKES, Circuit Judge, and
JAMESON, District Judge.*
OAKES, Circuit Judge:
Robert Cardillo, presently incarcerated at the United States Federal Penitentiary
at Lewisburg, Pennsylvania, appeals from an order of the United States District
Court for the Southern District of New York, Murray I. Gurfein, Judge,1
dismissing petitioner's civil libel suit and granting summary judgment for the
appellees on the grounds that publication of My Life in the Mafia is protected
by the First Amendment to the Constitution. We affirm.
Petitioner's complaint alleged that Doubleday & Co., Inc., Thomas Renner,
Vincent Teresa, and Fawcett Publications published libelous statements about
him in a book written by Renner and Teresa entitled My Life in the Mafia.
Teresa is said in the book to be a high ranking figure in organized crime who
became a Government witness and eventually published his story. Cardillo had
known Teresa and was mentioned in Teresa's book as taking part in various
criminal enterprises. Teresa is still under federal protective custody and has
been the chief witness against over 20 individuals, including Cardillo himself,
who have been convicted largely as a result of his testimony.
3
Judge Gurfein granted the appellees' motions to dismiss and for summary
judgment under Fed.R.Civ.P. 56 on the basis of Rosenbloom v. Metromedia,
Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971), and Kent v. City of
Buffalo, 29 N.Y.2d 818, 327 N.Y.S.2d 653, 277 N.E.2d 669 (1971), holding
that the book is "a matter of legitimate public interest." Judge Gurfein found no
actual malice in the publication of the book, that no statements were made
"with knowledge that they were false or made with reckless disregard of
whether or not they were false. New York Times Co. v. Sullivan, 376 U.S. 254,
280, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)." He based his findings on the
allegations in the affidavits that the editors and author Renner did extensive
substantiation of the contents of the book. Finding the Rosenbloom and Kent
cases sufficient for granting appellees' motions, Judge Gurfein stated that it was
not necessary to reach the issue "whether the plaintiff is libel-proof because of
his conviction and consequent incarceration." This appeal followed.
Cardillo argues that the New York Court of Appeals would limit its decision in
Kent taking advantage of the latitude given in the development of state libel
laws by the Supreme Court in Gertz v. Robert Welch, Inc., 418 U.S. 323, 94
S.Ct. 2997, 41 L.Ed.2d 789 (1974). Gertz, decided after Judge Gurfein's
decision below, permits states to disallow the New York Times v. Sullivan
defense when neither public officials nor public figures are involved. Cardillo
also claims that summary judgment should not have been granted because there
were disputed issues of fact as to whether he is a public figure within Curtis
Publishing Co. v. Butts and its companion case, Associated Press v. Walker,
388 U.S. 130, 162, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967), and whether
appellees were negligent or acted with malice.
We need not determine whether New York would abandon Kent in the light of
Gertz v. Robert Welch, Inc., supra, whether the appellees can claim the
Sullivan privilege on grounds that appellant is a public figure by virtue of his
criminal trials or whether summary judgment was appropriate. For we consider
as a matter of law that appellant is, for purposes of this case, libel-proof, i. e.,
so unlikely by virtue of his life as a habitual criminal to be able to recover
anything other than nominal damages as to warrant dismissal of the case,
involving as it does First Amendment considerations. See Urbano v. Sondern,
41 F.R.D. 355, 357 (D.Conn.), aff'd, 370 F.2d 13 (2d Cir. 1966), cert. denied,
386 U.S. 1034, 87 S.Ct. 1485, 18 L.Ed.2d 596 (1967); Mattheis v. Hoyt, 136
F.Supp. 119, 124 (W.D.Mich.1955). See also Gertz v. Robert Welch, Inc., 418
U.S. at 349, 94 S.Ct. at 3011 ("States may not permit recovery of presumed or
punitive damages . . . ."). We by no means intend to suggest that prison inmates
can be deprived of access to federal diversity jurisdiction to obtain redress of
wrongs, including libels, committed against them whether they are in or out of
prison. But here appellant is serving 21 years, sentenced for assorted federal
felonies, including separate convictions for stolen securities and bail-jumping in
the United States District Court for the Southern District of Florida, bailjumping in the District of Maryland, and conspiracy and interstate
transportation of stolen securities in the District of New Hampshire. He has
been previously convicted of receiving stolen property and numerous minor
infractions of the law in Massachusetts where he lived. His answers to
interrogatories indicate that he was in Teresa's company "frequently" from
1963-69, knew Teresa to be a petty thief and confidence man, and was "directly
involved" with Teresa "in several minor crimes, none of which were
noteworthy or profitable." While he denies participation in a robbery mentioned
by Teresa (My Life in the Mafia at 176) at, or above, Lindenbaum's
Laundromat and claims that much of Teresa's story is fantasy, from 1967 to
early 1969 he admits that Teresa, who was then in possession of a considerable
quantity of money, and a "Joe Black" each told him they were in a "shylocking
and bookmaking operation" (although he says Teresa was swindled by Black).
He denies participation in numerous other specific crimes referred to in the
appellees' book, including fixing a specific race, the Constitution Handicap at
Suffolk Downs, but he was indicted in Massachusetts for fixing races at that
track and apparently not tried only because of his present incarceration. The
records of the House Select Committee on Crime, 92d Cong., 2d Sess., on
Organized Crime in Sports (Racing) contain testimony at page 738 (May 24,
1972) of Joseph "The Baron" Barboza, a former organized crime "enforcer,"
substantiating Teresa's claim that Cardillo frequented the "Ebb Tide" which
was where "the mob generally hung out" and that Cardillo fixed races at
Suffolk by slowing down the favorites with drug injections. With Cardillo
himself having a record and relationships or associations like these, we cannot
envisage any jury awarding, or court sustaining, an award under any
circumstances for more than a few cents' damages, even if Cardillo were to
prevail on the difficult legal issues with which he would be faced.
6
Accordingly, we affirm the judgment below.
Judgment affirmed.
