The Channel 10 reporter is to be sentenced tomorrow for criminal contempt.

08:59 AM EST on Wednesday, December 8, 2004

BY EDWARD FITZPATRICK
Journal Staff Writer

PROVIDENCE -- Lawyers for Channel 10 reporter Jim Taricani yesterday argued that a judge can make Taricani pay the government's legal bills only as an alternative to putting him in prison or otherwise punishing him.

The action comes as Chief U.S. District Judge Ernest C. Torres is preparing to sentence Taricani tomorrow for refusing to identify the source of an undercover videotape that showed a top City Hall aide taking a bribe.

Torres convicted the investigative reporter of criminal contempt on Nov. 18, and six days later defense lawyer Joseph A. Bevilacqua Jr. disclosed that he had provided Taricani with the tape, despite a court order barring its dissemination.

Torres had given lawyers until yesterday to address whether Taricani should be required to make restitution for all or part of the legal expenses the federal government has incurred since the judge ordered Taricani to identify his source in October 2003.

Only Taricani's response was available in the court file by the close of business yesterday. Special prosecutor Marc DeSisto also filed a response, but the document was not immediately placed in the file for procedural reasons, court officials said.

In a 12-page memorandum, Taricani's lawyers said "an order of restitution for any of the legal expenses incurred by the United States may be issued, if at all, only as an alternative, and not in addition to, [Taricani's] imprisonment or any other punishment."

Torres has said he will sentence Taricani to no more than six months in prison, so the reporter has been convicted of a Class B misdemeanor, Taricani's lawyers concluded. And in misdemeanor cases, the Victim Witness Protection Act allows judges to order restitution only in lieu of other punishments, the lawyers wrote.

The lawyers also argued that investigative and prosecution costs are not the kind of expenses that should be the subject of restitution orders.

"The contrary rule would run directly counter to basic principles of American law," Taricani's lawyers wrote. "If restitution could be awarded here, it could be ordered in any criminal case. The notion that every federal criminal defendant could be ordered to pay the costs of the investigation and prosecution that led to his conviction would be an extraordinary result, directly contrary to the presumption of innocence."

The lawyers cited a case in which the 1st U.S. Circuit Court of Appeals said investigatory costs aren't considered a "loss" within the meaning of the federal restitution statute. Rather, the court said such costs should be viewed as "voluntary outlays for the procurement of evidence."

Taricani's lawyers emphasized that a big chunk of the government's legal fees resulted not from Taricani's offense but from his appeal to the Boston-based 1st Circuit.

"Defendants have the right to pursue their appellate remedies without the apprehension of increased punishment for doing so," the lawyers wrote. "Thus, enhancing a sentence by awarding fees for pursuing an appeal involving First Amendment rights would violate [Taricani's] right to due process of law."

Taricani's lawyers said that, aside from media reports, they have no information about how much the government has spent on legal bills.

The Journal has reported that lawyers prosecuting Taricani have billed the government for $119,000. But those bills only run through mid-August, so the total costs could be much more. More than $42,000 of the $119,000 was for work DeSisto did in 2001 and 2002 -- before Torres ordered Taricani to reveal his source. So it's not clear what amount Taricani might ultimately be required to pay.

Taricani's lawyers emphasized that they haven't had access to the government's legal bills, and argued that a restitution order cannot be issued now because proper procedures haven't been followed.

"Where the victim's alleged losses are not ascertainable 10 days before sentencing, the court cannot issue an order of restitution at sentencing but must conduct a separate hearing on restitution after sentencing," the lawyers wrote. "At any such hearing, the government bears the burden of 'demonstrating the amount of the loss sustained by a victim as a result of the offense.' "

Among other things, such a hearing would determine whether $84,000 already paid as a civil contempt penalty should offset any amount Taricani is ordered to pay as restitution, his lawyers said.

Before being tried for criminal contempt, Taricani was paying a $1,000-a-day civil contempt fine for refusing to divulge his source. He was reimbursed by Channel 10.

Taricani's lawyers are Deming E. Sherman, Martin F. Murphy, Susan E. Weiner and Brande M. Stellings.