U.S. v. Lynch and Moscinski

• Decision Date: 14 July 1999
• Docket Number: No. 97-1092,97-1092
• Parties: (2nd Cir. 1999) UNITED STATES OF AMERICA, Appellant, v. GEORGE LYNCH and CHRISTOPHER MOSCINSKI, Defendants-Appellees
• Court: U.S. Court of Appeals — Second Circuit

Page 330

181 F.3d 330 (2nd Cir. 1999)

UNITED STATES OF AMERICA, Appellant, v. GEORGE LYNCH and CHRISTOPHER MOSCINSKI, Defendants-Appellees.

No. 97-1092

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

July 14, 1999

A petition for rehearing and a petition for rehearing en banc having been filed herein by appellee, United States of America,

Upon consideration by the panel that Decided the appeal, it is Ordered that said petition for rehearing is hereby DENIED. Judge Feinberg dissents from the denial of rehearing.

It is further noted that a request for an en banc vote having been made by a judge of the panel that heard the appeal, and a poll of the judges in regular active service having been taken and there being no majority in favor thereof, rehearing en banc is DENIED. Judges Kearse, Leval, Cabranes, Parker, Pooler, and Sotomayor dissent from the denial of en banc reconsideration.

SACK, Circuit Judge (concurring in the denial of rehearing en banc):

My views with respect to this appeal are set forth in my opinion concurring in the majority opinion of the panel, United States v. Lynch, 162 F.3d 732, 736 (2d Cir. 1998). "Willfulness" is an element of the crime with which the defendants Bishop Lynch and Brother Moscinski were charged; the district court found as a matter of fact that willfulness was not proved; the district court therefore did not "resolve[] against the defendant[s] all of the factual issues necessary to support a finding of guilt," United States v. Jenkins, 420 U.S. 358, 367 (1975); were we to seek to determine on appeal whether that finding of fact is correct, we would ourselves be subjecting the defendants to the second "jeopardy" prohibited by the Double Jeopardy Clause of the Fifth Amendment. I add these words to address one additional aspect of this highly unusual case that becomes prominent now that the government, having lost at the district court and circuit court panel levels, seeks rehearing en banc.

There are, it seems to me, two defining characteristics of this prosecution:

First, the injunction that the defendants Lynch and Moscinski are accused of disobeying was not a garden variety court order requiring them to cease infringing on another person's intellectual property rights, say, or to make disclosure during the course of pre-trial discovery. It was directed at a species of anti-abortion protest made illegal by the Freedom of Access to Clinic Entrances Act of 1994, 18 U.S.C. § 248. The actions upon which their prosecution was based was their demonstration at the threshold of a clinic where abortions are performed, thereby obstructing the access of women to the clinic. While irrelevant to the guilt or innocence of the defendants, we would be oblivious if we were not aware that their behavior was thus directed to one of the most highly charged political and moral issues of our time.

Second, despite routinely being faced with acquittals some of which are doubtless manifestly wrong, the government virtually never seeks to have them overturned on appeal. I know of no previous attempt by the Office of the United States Attorney for the Southern District of New York to upset an acquittal on appeal since the passage of the Criminal Appeals Act, 18 U.S.C. §3731, first effectively permitted such appeals in 1971.¹ They must in any event be exceedingly rare.

The government's efforts to seek en banc review are also out of the ordinary. The Federal Rules of Appellate Procedure provide 14 days for a party to seek rehearing and rehearing en banc. Fed. R. App. P. 40(a)(1). The government, with the twice-granted permission of this Court, took some eleven weeks to do so. It needed the additional time because Southern District prosecutors were required first to obtain permission from the highest reaches of the Justice Department. It was with the explicit approval of the Solicitor General of the United States,² "after consultation with the Criminal Division and, in this case, the Civil Rights Division of the United States Department of Justice in Washington," Affidavit of Martin J. Siegel in Support of [Second] Motion for Extension of Time, January 26, 1999, at 2, that the government attempted by this petition a third time to have the defendants Lynch and Moscinski found guilty and punished.

I cannot ascribe to the government any particular motive or motives; neither do I disparage them. And I imply no criticism of the prosecutors in this case. They have done their jobs and done them exceedingly well. That is the point. Their efforts have been so expert and extensive that it may truly be said that the full force of the prosecutorial machinery of the United States government has been summoned here to seek to assure that these two defendants are convicted and punished. This for an alleged crime the maximum sentence for which was a modest fine and six months in jail.³

I am in perfect agreement with the views of the authors of the majority and dissenting panel opinions on the disposition of this prosecution by the district court. The district court found

as a matter of fact that [defendants] Lynch's and Moscinski's sincere, genuine, objectively based and, indeed, conscience-driven religious belief, precludes a finding of willfulness [in their disobeying a court order not to blockade a women's health clinic in which abortions were performed]. 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.

United States v. Lynch, 952 F. Supp. 167, 170 (S.D.N.Y. 1997) (citation omitted). "No doubt, this was error." United States v. Lynch, 162 F.3d at 735 (majority opinion). "[W]illfulness in this context requires nothing more than 'a specific intent to consciously disregard an order of the court.' . . . Bad intent is not required." Id. at 746 (dissenting opinion) (citation omitted).

Judge Feinberg, dissenting from the panel decision, concluded:

[T]he exercise of nullification by a federal judge - even when termed a "prerogative of leniency" - may create an appearance of injustice that cannot be tolerated by a legal system that strives to resolve cases in a reliable, consistent and objective manner. The arbitrariness of a power that would allow an Article III judge to acquit otherwise guilty defendants if and when the judge sees fit to do so simply cannot be reconciled with the Supreme Court's admonition that "to perform its high function in the best way 'justice must satisfy the appearance of justice.'"

Id. at 747 (citation omitted). I find it impossible to disagree.⁴ Indeed, it is arguable that because the district court was called upon to preside over proceedings thick with political and moral implications its fastidious adherence to the rule of law was most clearly required and any departure therefrom that much more strongly to be condemned.

But it is not the district judge whom the government seeks for a third time now to convict and punish; it is Bishop Lynch and Brother Moscinski. And it is not the district judge or his decisions that are protected by the Double Jeopardy Clause of the Fifth Amendment; it is these defendants.

The Double Jeopardy Clause provides that no "person [shall] be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. "The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense...." Jenkins, 420 U.S. at 370 (quoting Green v. United States, 355 U.S. 184, 187 (1957)). When the awesome power of the United States is fully enlisted in the endeavor of seeking to overturn an acquittal in a case boiling with political significance, it seems to me that the Double Jeopardy Clause attains its full stature as a bulwark for the individual against the virtually unlimited resources of the government employed to achieve its ends of the day.

The case before us, then, is an archetypal one for reliance on the Double Jeopardy Clause, demanding the most punctilious regard for the Fifth Amendment rights of these defendants. Since I have concluded that the government did not have the ability under the Constitution to have a second chance to convict Lynch and Moscinski, I believe all the more that we are wise in not giving the government a third opportunity to try to convict them upon rehearing en banc.

CABRANES, Circuit Judge, with whom Judges Parker, Pooler, and Sotomayor concur, and with whom Judge Leval concurs as to Parts I and II, dissenting from the denial of rehearing en banc:

The petition of the United States to re-hear this matter en banc has been denied by the vote of an evenly divided court, in which the dissenting judge from the original panel (Judge Feinberg) was disabled by law from casting a ballot despite the fact that he would have been entitled to participate in such a rehearing.¹ I respectfully dissent. I do so primarily because this case involves two questions of exceptional importance: (1) the permissibility of an appeal by the Government from an acquittal following a trial without a jury, and (2) the legitimacy of the district court's unprecedented proclamation that both juries and judges, when sitting as triers of fact, enjoy a "prerogative" to nullify the law. I do so also because, in answering the first question and declining to reach the second, the panel majority appears to have engaged in an analysis that conflicts with governing cases, thereby making an en banc rehearing necessary to maintain uniformity of precedent.

I.

The defendants in this case faced charges of criminal contempt based on their alleged violation of a court-ordered permanent injunction. See United States v. Lynch, 162 F.3d 732, 733 (2d Cir. 1998).² The injunction had been entered by the district court after...