SUPRENIE COURT OF THE STATE OF NEW YORK COUNTY OF KINGS: CRINIINAL TERM PART 27

THE PEOPLE OF THE STATE OF NEW Ind. No. 6825/2005

YORK, NOTICE OF MOTION

- against-

R. LINDLEY DEVECCHIO

Defendant.

PLEASE TAKE NOTICE, that upon the annexed Affinnation

of ZACHARY MARGULIS-OHNUMA, attorney for non-party Jerry

Caped, duly affinned the 17th day of July, 2007, and the exhibits thereto,

and the accompanying memorandum of law, the undersigned will move this

Court before the Hon. Gustin Reichbach at the Courthouse thereof at 320 Jay

St., Brooklyn, New York on August 2, 2007 or as soon thereafter as counsel

may be heard for an ORDER TO QUASH the subpoena duces tecum

directed at Jerry Caped dated June 21,2007.

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No previous application for the reliefherein requested has been

made to any court.

Dated: New York, New York July 18, 2007

Respectfully submitted,

Law Office ofZachary Margulis-Ohnuma

", dlil"'\T.I.l\/I argulis-Ohnuma

Copies to: Douglas Grover, Esq. Kings County District Attorney's Office

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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS: CRIMINAL TERM PART 27

THE PEOPLE OF THE STATE OF NEW YORK,

- against-

R. LINDLEY DEVECCHIO

Defendant.

Ind. No. 6825/2005

ATTORNEY AFFIRMATION IN SUPPORT OF MOTION TO QUASH

STATE OF NEW YORK ) ) ss.:

COUNTY OF NEW YORK )

ZACHARY MARGULIS-OHNUMA, an attorney duly

admitted to practice law in the State ofNew York and before this Court,

hereby affirms under penalty of perjury as follows:

1. I hereby appear on behalf of Jerry Capeci, a proposed

non-party witness for the defense in this action.

2. On or about June 21, 2007, I received a subpoena via

electronic mail from the firm of Thompson Hine, LLP, attorneys for

Defendant R. Lindley DeVecchio. I agreed to accept service of the

subpoena on behalf of my client, Mr. Capeci. A true and correct copy of the

subpoena is attached hereto as Exhibit A.

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3. The subpoena calls for numerous documents that may not

be disclosed or are privileged against disclosure for a number of reasons that

are set forth more fully in the accompanying Memorandum ofLaw filed

herewith. The principal reason the material sought is not discoverable is that

it is protected by the New York Reporter's Shield Law, Civil Rights Law §

79-h ("the Shield Law").

4. Attached hereto as Exhibit B is an affidavit duly sworn to

and executed by Mr. Capeci setting further setting forth the facts and

circumstances giving rise to protection under the Shield Law.

5. For the reasons set forth in Mr. Capeci's affidavit and the

accompanying memorandum of law, the subpoena should be QUASHED

and Mr. Capeci should be afforded any further relief-the court deems just

and proper.

Dated: New York, New York July 18, 2007

~ .-/

~2£~is-ohnuma

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Exhibit A

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS: CRIMINAL TERM PART 27

--------------------------------------------------------------------J{ THE PEOPLE OF THE STATE OF NEW YORK

Kings County Indictment - against- No. 6825/2005

SUBPOENA DUCES TECUM R. LINDLEY DEVECCHIO,

Defendant. --------------------------------------------------------------------J{

THE PEOPLE OF THE STATE OF NEW YORK

. '(0: Jerry Capeci c/o Zachary Margulis-Ohnuma, Esq. 260 Madison Avenue, 18th Floor New York, New York 10016

GREETINGS:

YOU ARE HEREBY COMMANDED, that all business and excuses being laid aside,

to appear before the Supreme Court of the State ofNew York, of the County ofKings, 320

Jay Street, in the Borough of Brooklyn, of the City of New York on August 8,2007, at

9:30 a.m., or on a suitable adjournment date thereafter, as a witness in a hearing pursuant

to Kastigar v. United States, 406 U.s. 441 (1972), in the crirninalaction prosecuted by the

People of the State ofNew York against R. Lindley DeVecchio,

AND YOU ARE FURTHER COMMANDED to produce the documents listed on

Attachment A, which is annexed hereto, by forwarding the aforesaid documents on or

before August 8, 2007, to the Supreme Court of the State of New York, County of Kings,

Part 27, 320 Jay Street, New York, New York 11201.

In lieu of your personal appearance, you may satisfy the obligations in this subpoena

by forwarding the documents requested to the Supreme Court of the State of New York,

County ofKings, Part 27,320 Jay Street, New York, New York 11201, by August 8, 2007.

IF YOU FAIL TO ATTEND OR PRODUCE THE AFORESAID DOCUMENTS,

you may be adjudged guilty of a Criminal Contempt ofCourt, and liable to a fme oftwo

hundred and fifty dollars and imprisonment for thirty days and to be prosecuted and

punished for a misdemeanor.

Dated: New York, New York June 21, 2007

THOMPSON HINE LLP Attorneys for Defendant R. Lindley DeVecchio

~~ 335 Madison Avenue, Floor 12 New York, New York 10017 (212) 344-5680

ATTACHMENT A

(to the Subpoena Duces Tecwn issued to Mr. Jerry Capeci in connection with the hearing pursuant to Kastigar v. United States, 406 U.S. 441 (1972), in the criminal action

prosecuted by the People ofthe State ofNew York against R. Lindley DeVecchio, Indictment No. 6825/2005, in the Supreme Court of the State ofNew York, County of

Kings, Criminal Tenn Part 27.)

Pursuant to the attached Subpoena, you are required to produce the following items:

Definitions

a. "Docwnent" includes, without limitation, all written, typed or recorded material or

thing of any nature whatsoever, including but not limited to electronic, electromagnetic or

digital recordings, or computerized data compilations, such as emails, facsimile

correspondence, notes, memoranda, and summary reports, in the possession, custody or

control ofJerry Capeci or Jerry Capeci's present or fonner attorneys, agents,

representatives, employees and other persons acting or purporting to act on his behalf.

"Document" also includes any docwnent affixed to or attached to any docwnent otherwise

responsive to this request, all drafts, and all non-identical copies regardless oforigin or

location.

b. The term "communication" includes, without limitation, the transmittal of thoughts

or ideas in oral, written, electronic, or any other fonn.

c. "Including" means "including without limitation."

d. The tenn "person" includes, without limitation, natural persons, corporations,

public corporations, governments, governmental agencies, boards, commissions,

regulatory authorities, committees, partnerships, joint ventures, groups, finns, associations,

or other organizations.

e. "You" or "Your" means Jerry Capeci and any other person acting or purporting to

act under the authority or on behalf ofJerry Capeci.

f. A document, communication or correspondence "relating to" a given subject matter

means that it concerns, constitutes, contains, embodies, comprises, reflects, identifies,

states, refers to, deals with, comments on, responds to, describes or analyzes that subject,

including documents, communications or correspondence concerning the contents ofother

documents, communications or correspondence.

g. The connective "and" and "or" shall be construed either conjunctively or

disjunctively as necessary to bring within the scope of these requests all responses that

might otherwise be construed to be outside of its scope.

Documents to be Produced

1) ANY AND ALL correspondence, documents, and communications, including, but not limited to, meeting notes, email messages, facsimile transmissions and other materials or communications addressed to, regarding or relating to a book proposal of or concerning LINDA C. SCHIRO (aka LINDA SCARPA);

2) ANY AND ALL documents including, but not limited to, notes, photographs, correspondence, contracts, proposals, summaries, manuscripts, audio recordings, video recordings, photographs, treatments, or any communications with or relating to LINDA C. SCHIRO (aka LINDA SCARPA), from January 1, 2000, to the present.

Exhibit B

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS: CRIMINAL TERM PART 27

THE PEOPLE OF THE STATE OF NEW YORK,

- against-

R. LINDLEY DEVECCHIO

Defendant.

Ind. No. 6825/2005

AFFIDAVIT OF JERRY CAPECI IN SUPPORT OF MOTION TO QUASH

STATEOFNEWYORK ) ) ss.:

COUNTY OF NEW YORK )

I, Jerry Capeci, do hereby depose and state as follows:

1. I am a professional journalist working in and around the

City of New York. I have earned my living as a reporter, columnist and

author for about 38 years. My main focus of journalistic inquiry is

organized crime.

2. At present, I write a weekly column known as Gang Land

that appears in the New York Sun. The New York Sun is a daily newspaper

of general circulation published in New York City. I also publish the

column on my website, which can be found at

http://www.ganglandnews.com.

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3. I am the winner of several journalism awards, and, in

January 2006, received a media excellence award from the New York State

Bar Association for Outstanding Contribution to Public Information.

4. I frequently write for other publications and appear as an

expert on organized crime on local and national television and radio

programs.

5. From in or about March 1986 until in or about October

1999, I was an employee at the New York Daily News ("Daily News"), a

daily newspaper of general circulation in the City of New York. From 1966

to 1986, I was an employee of the New York Post, a daily newspaper of

general circulation in the City ofNew York. From in or about 1969 until the

present, I have possessed an official "Working Press Card" that is issued by

the New York City Police Department to members of the media each year.

6. At present and at all times relevant to this motion, the

Daily News and the New York Sun had a paid circulation and contained

news, articles of opinion, advertising and other matters of current interest.

7. As a professional journalist since 1966, I have, for gain

or livelihood, been engaged in gathering, preparing, collecting, writing and

editing news intended for publication in either the Daily News or another

professional medium or agency which has as one of its regular functions the

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processing and researching ofnews intended for dissemination to the public.

At all relevant times I have performed such functions either as a regular

employee or as one affiliated with such medium of communication for gain

or livelihood.

8. As part ofmy agreement with the Daily News, I was

specifically permitted to write books and articles for publication in other

media.

9. In fact, between 1988 and 1996, while I was employed at

the Daily News, I co-authored three books on the Mafia (i.e. Italian-

American organized crime) in New York. These included:

(a) Mob Star: The Story ofJohn Gotti, which was originally published in 1988 by Franklin Watts Inc. and re-released the following year by Dell Publishing (an updated, expanded version was published in 2002 by Alpha Books);

(b)Murder Machine, which was originally published in 1992 by Dutton and re-released in 1993 by Penguin; and

(c) Gotti: Rise and Fall, which was published in 1996 by Onyx.

10. Since 1996, I have written The Complete Idiot's Guide to

the Mafia which was originally published in 2001; Gang Land: Fifteen

Years ofCovering the Mafia, a collection of my "Gang Land" columns, in

2003; and Wiseguys Say The Darndest Things: The Quotable Mafia in 2004.

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11. In conjunction with the publication ofMob Star and

Murder Machine, I wrote several contemporaneous articles for the Daily

News regarding the subject matter of those books. I also contributed to other

stories about both books that appeared in the Daily News.

12. As part ofmy ongoing reporting on organized crime, I

met Linda Schiro in or about 1994. Every conversation I ever had with her

was conditioned on a promise of anonymity. In other words, in return for

her speaking to me, I promised never to attribute to her in print anything she

ever said to me. Except as specifically set forth below, I never had any "on­

the-record" conversation with her, i.e., any conversation in which I would be

permitted to quote her directly.

13. In or about 1996 and 1997, I had confidential discussions

with Ms. Schiro about the possibility ofher providing confidential

information to me for a book about her life with Gregory Scarpa Sr.

14. As part of these discussions, she permitted me to use her

name in conjunction with a book proposal, and to state in the proposal that I

had obtained her "'exclusive cooperation."

15. However, I agreed with Ms. Schiro that these discussions

and Ms. Schiro's participation in the resulting proposal were to remain

strictly confidential.

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16. In particular, I agreed that the book would be written in a

narrative format that would not require direct attribution of information or

anecdotes from any person including Schiro.

17. I further agreed that no scenes or anecdotes in the book

would be attributed to Schiro.

18. I further agreed with Schiro that she would have the right

to review the manuscript before publication and would be entitled to suggest

reasonable changes if she felt any material in the book might be hazardous to

her safety or put her in legal jeopardy.

19. I further specifically agreed not to provide information

given to me by Schiro to any other persons, including law enforcement.

20. In preparing to write the book based on Ms. Schiro's

confidential information, I specifically anticipated publishing articles in the

Daily News to coincide with the publication of the book. In other words, the

information I collected from Ms. Schiro was both for the purpose of

publishing a book and for the purpose of publishing news articles in the

Daily News that would promote the book.

21. Between January 1,2000 and in or about December

2005, I have had no communications with or relating to Ms. Schiro that I can

recall.

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22. Since in or about January 2006 I have communicated

with many people in many different contexts "relating to" Ms. Schiro.

23. All of these communications were for the purpose of

preparing articles about the instant prosecution of R. Lindley DeVecchio for

publication both in the New York Sun and on www.ganglandnews.com.

24. Like virtually all my communications with Ms. Schiro,

some of these communications with others "relating to" Ms. Schiro were

conditioned on a promise of confidentiality, anonymity, or both.

25. Other than the confidential communications referenced in

the preceding paragraph, the only documents or communications I have

"relating to" Ms. Schiro are based on public records, published materials or

other documents easily available to the defense attorneys such as the court

file in this case and news articles.

I hereby swear and affirm under penalty of perjury that the

foregoing facts are true and correct to the best of my knowledge. ?

Sworn to before me this f) day of July, 2007.

~ ~ c-:-H--t'l IRENE CASTILLO_~~..=:...L-"':="""":~==-="":::"="":::>o...;>.- __ Notary Public. State 01 New York

No.01CA6087496 o ary Cualil~it!NassaUG!lURlYIN t PublIC

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