U.S. v. Lynch
| Decision Date | 14 December 1998 |
| Docket Number | No. 18,D,18 |
| Citation | 162 F.3d 732 |
| Parties | UNITED STATES of America, Appellant, v. George LYNCH and Christopher Moscinski, Defendants-Appellees. ocket 97-1092. |
| Court | U.S. Court of Appeals — Second Circuit |
Martin J. Siegel, Assistant United States Attorney, New York, N.Y. (Mary Jo White, United States Attorney, Southern District of New York; James L. Cott, Ira M. Feinberg, Assistant United States Attorneys, on the brief), for Appellant.
G. Robert Blakey, Notre Dame Law School, Notre Dame, IN (A. Lawrence Washburn, Jr., New York, New York, on the brief; John Broderick, Syosset, NY, Gabriel P. Kralik, Fish & Richardson P.C., New York, NY, of counsel), for Defendants-Appellees.
(William J. Hoffman and Lawrence R. Miller, Arnold & Porter, New York, NY, on the brief), for amici curiae United States Representatives Charles E. Schumer, Howard L. Berman, Eliot L. Engel, Robert Filner, Barney Frank, Maurice Hinchey, Nita M. Lowey, Constance A. Morella, Louise M. Slaughter and Lynn C. Woolsey; United States Senator Ron Wyden; James Brennan, Joan K. Christensen, Barbara M. Clark, Samuel Coleman, Gloria Davis, Jeffrey Dinowitz, Daniel L. Feldman, Sandra Galef, David F. Gantt, Deborah Glick, Richard N. Gottfried, Roger L. Green, Paul E. Harenberg, Audrey Hochberg, Susan V. John, Martin A. Luster, Nettie Mayersohn, William Scarborough, Edward C. Sullivan, Robert K. Sweeney, and Albert Vann, Members of the New York State Assembly; and New York State Senators Roy M. Goodman and Vincent L. Leibell.
(Bruce E. Yannett and Neil S. Binder, Debevoise & Plimpton, New York, NY; Yolanda S. Wu and Martha F. Davis, NOW Legal Defense and Education Fund, New York, NY; Priscilla J. Smith and Kathryn Kolbert, Center for Reproductive Law & Policy, New York, NY, on the brief), for amici curiae NOW Legal Defense and Education Fund, Center for Reproductive Law and Policy, Anti-Defamation League, Broome County Pro-Choice Coalition, Buffalo GYN Womenservices, Center for Constitutional Rights, Long Island Pro-Choice Coalition, New York State AAUW, New York County Chapter of American Academy of Family Physicians, People for the American Way, Planned Parenthood of New York City, Planned Parenthood of Rochester and the Genesee Valley, Planned Parenthood of Suffolk County, Inc., Pro-Choice Network of Western New York, and Republican Pro-Choice Alliance of New York.
(Labe M. Richman, Donna Lieberman, and Yueh-ru Chu, New York, NY, on the brief), for amici curiae New York Civil Liberties Union, the American Jewish Congress, Lambda, the National Emergency Civil Liberties Committee, and the Westchester Coalition for Legal Abortion, Inc.
Before: FEINBERG, JACOBS, and SACK, Circuit Judges.
Judge SACK concurs in the opinion of the Court, and also files a separate opinion.
The United States appeals from the acquittal following a bench trial in the United States District Court for the Southern District of New York (Sprizzo, J.) of persons charged with criminal contempt under 18 U.S.C. § 401(3) for allegedly violating a permanent injunction that prohibited them from further violations of the Freedom of Access to Clinic Entrances Act ("FACE"), 18 U.S.C. § 248. On appeal, the government argues that the district court erred in holding (i) that a finding of wilfulness was precluded by the sincere religious beliefs that prompted defendants' conduct and (ii) (alternatively) that the court could exercise a prerogative of leniency to acquit even if there were proof of guilt beyond a reasonable doubt. Defendants argue that regardless of any error the district court may have made in arriving at the February 11, 1997 judgment of acquittal, we lack appellate jurisdiction under 18 U.S.C. § 3731 and the Fifth Amendment's Double Jeopardy Clause. Because we conclude that further prosecution would constitute double jeopardy, we dismiss this appeal.
The defendants, Bishop George Lynch and Brother Christopher Moscinski (also known as Brother Fidelis) are devout Roman Catholics who are conscientiously opposed to abortion. Since 1990, they have repeatedly protested outside the Women's Medical Pavilion, a clinic in Dobbs Ferry, New York in which abortions and other reproductive health services are performed. On several occasions, Lynch and Moscinski chose to protest the availability of abortion procedures at the clinic by sitting and praying in the clinic's driveway, thereby impeding access to the parking lot used by patients and doctors. On these occasions, they were arrested by the police, and removed.
On October 27, 1995, the United States Attorney filed a civil complaint, charging that the defendants' conduct violated FACE. One provision of that statute criminalizes action that "by physical obstruction, intentionally ... interferes with or attempts to ... interfere with any person" who is or has been "obtaining or providing reproductive health services." 18 U.S.C. § 248. On February 23, 1996, the district court issued a permanent injunction, the relevant portion of which bars the defendants from violating FACE by "impeding or obstructing automotive or any other form of ingress into, or egress from, the [Women's Medical Pavilion]."
On August 24, 1996, Lynch and Moscinski returned to their spot in the clinic's driveway. They were arrested and charged with criminal contempt. At the bench trial on In a written opinion, the district court found "as a matter of fact" that the defendants' "sincere, genuine, objectively based and, indeed, conscience-driven religious belief, precludes a finding of willfulness." Id. at 170. Alternatively, the district court noted, even if the wilfulness element had been established to its satisfaction, the court would have exercised a "prerogative of leniency" to acquit them nevertheless. Id. at 171.
October 15, 1996, 1 the defendants stipulated that they were sitting in the driveway, that they knew of the permanent injunction, and that they knew the injunction prohibited them from obstructing automobile traffic into the clinic's parking lot. Although the district court accepted these stipulations as findings of fact, see United States v. Lynch, 952 F.Supp. 167, 168 (S.D.N.Y.1997), it ultimately acquitted both Lynch and Moscinski of criminal contempt, see id. at 172.
The government is now in the unaccustomed position of appealing the judgment of acquittal.
The first question presented arises under the Double Jeopardy Clause of the Fifth Amendment and is one of appellate jurisdiction. The Criminal Appeals Act, 18 U.S.C. § 3731, provides that the courts of appeals have jurisdiction over government appeals "from a decision, judgment, or order of a district court dismissing an indictment or information ... except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution." 18 U.S.C. § 3731 (emphasis added).
There is no absolute double jeopardy bar to appellate review of a district court's judgment of acquittal. See United States v. Wilson, 420 U.S. 332, 336, 345, 95 S.Ct. 1013, 1018, 1023, 43 L.Ed.2d 232 (1975). The availability of appellate review in that circumstance depends on the essential character of the district court's judgment. See United States v. Scott, 437 U.S. 82, 98, 98 S.Ct. 2187, 2197, 57 L.Ed.2d 65 (1978); United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S.Ct. 1349, 1354-55, 51 L.Ed.2d 642 (1977).
The government contends that its appeal is not barred because (1) the district court found facts sufficient to establish each of the four elements of a criminal contempt offense beyond a reasonable doubt; 2 (2) the judgment of acquittal was based solely on a legal error--the district court's view that the government was required to prove what the government characterizes as an additional element (bad intent or malice) that is not found in the criminal contempt context; (3) the Double Jeopardy Clause does not bar appellate review in such situations, see United States v. Moore, 613 F.2d 1029, 1038 (D.C.Cir.1979); see generally 15B Charles Alan Wright et al., Federal Practice and Procedure § 3919.5, at 661 (2d ed.1992); and (4) in a proper case, we would have power to direct entry of a judgment of conviction based on the district court's (supposed) finding that the prosecution established beyond a reasonable doubt each of the four required elements. We take up the government's arguments in order.
(1) We cannot agree that this is a case in which the district court found proof of all of the required elements of the offense. Contrary to the government's argument, the district court opinion does not reflect a finding that the fourth element of criminal contempt--wilfulness--was proven beyond a reasonable doubt. See United States v. Cutler, 58 F.3d 825, 834 (2d Cir.1995) (). The district court made the following finding on the subject:
In this case, the Court finds as a matter of fact that Lynch's and Moscinski's sincere Lynch, 952 F.Supp. at 170 (citation omitted) (emphasis added). The business end of the district court's ruling was that the government failed to establish facts sufficient to prove the element of wilfulness.
genuine, objectively based and, indeed, conscience-driven religious belief, precludes a finding of willfulness. Willful conduct, when used in the criminal context, generally means deliberate conduct done with a bad purpose either to disobey or to disregard the law. That kind of conduct is not present here.
(2) We also reject the government's contention that the district court required proof of bad intent as a separate, fifth element of the offense. Rather, the district court defined the element of wilfulness as requiring bad intent. No doubt, this was error. Wilfulness merely requires "a specific intent to consciously disregard an order of the court." Cutler...
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