The opinion of the court was delivered by: RICHARD J. ARCARA
The five defendants in this case, Joseph J. Slovenec, Jeffrey L. White, Joseph G. Kelley, Kenneth W. Reed and James F. Anderson, are charged by notice with criminal contempt of this Court's February 14, 1992 Preliminary Injunction in the case of Pro-Choice Network of Western New York et al. v. Operation Rescue Western New York et al., CIV-90-1004A ("Pro-Choice Network"). The Government has filed a document entitled "Motion to Dismiss" along with a supporting affidavit. For the reasons stated below, the Court interprets the "Motion to Dismiss" and supporting affidavit as a declination to prosecute defendants Reed and Anderson, and relieves the United States Attorney's Office from its responsibilities in this entire action. Further, the Court appoints Michael A. Brady, Esq. and Daniel C. Oliverio, Esq. to prosecute the criminal contempt charges against all five defendants.
On April 28, 1992, plaintiffs in the Pro-Choice Network case moved the Court for an Order to Show Cause why the five above-named defendants should not be held in both civil and criminal contempt of the Court's February 14, 1992 Preliminary Injunction in that case. The affidavits submitted by plaintiffs in support of the Order to Show Cause allege that defendants violated the Preliminary Injunction on April 24, 1992 by: (1) sitting on and in, blocking, and impeding ingress to and egress from, the driveway entrance of the Buffalo GYN Womenservices Clinic at 1241 Main Street Buffalo, New York in violation of P 1(a) of the Injunction; (2) demonstrating within fifteen feet of the driveway entrance at the Womenservices Clinic in violation of P 1(b) of the Injunction; and (3) inducing, directing, aiding and abetting others to violate the Preliminary Injunction in violation of P 1(e) of the Injunction. The Court signed the Order to Show Cause on April 28, 1992 and issued arrest warrants for all five defendants.
Defendants Anderson, Slovenec and White were arrested and arraigned before this Court on April 28, 1992. At that time, the Court determined that in view of the record in the Pro-Choice Network case and the allegations contained in plaintiffs' affidavits in support of the Order to Show Cause, obtaining acceptable relief in this case through the imposition of civil contempt charges was not feasible. Thus, the Court ordered that defendants be prosecuted for criminal contempt under 18 U.S.C. § 401. The Court provided defendants with oral notice of the charges against them pursuant to Fed. R. Crim. P. 42(b),
and referred the case to the U.S. Attorney's Office for investigation and prosecution. The Court ordered the Government to file a written notice, pursuant to Rule 42(b), by May 6, 1992.
The Court further ordered that the caption of the notice read:
Defendants Reed and Kelley were arraigned on May 4, 1992. Again, the Court determined that they should be prosecuted for criminal contempt under 18 U.S.C. § 401, provided them with oral notice of the charges against them pursuant to Rule 42(b), and ordered the Government to file a written notice by May 6, 1992 with the same caption as listed above.
On May 6, 1992, the Government filed a written notice, along with a criminal information, charging defendants Slovenec, White and Kelley with criminal contempt under 18 U.S.C. § 402. The captions of the notice and information read:
United States of America,
Also on May 6, 1992, the Court received an ex parte letter from the United States Attorney ("U.S. Attorney") requesting an additional two weeks to conduct a further review of the evidence and ...