The opinion of the court was delivered by: ROBERT J. WARD
Defendant Randall Terry has served and filed nine separate motions in connection with his forthcoming criminal contempt trial before this Court.
1. Motion to Take Deposition of Governor Bill Clinton;
3. Motion to Disgualify the Attorney General from Appointment as Prosecutor;
4. Motion for Bill of particulars;
5. Motion to Amend Order to Show Cause;
6. Motion to Dismiss Count Two of Notice of Charge;
7. Motion to Present Constitutional Arguments;
8. Motion for Discovery Pursuant to Rule 16, Fed. R. Crim. P.; and
9. Motion for Material Pursuant to Brady v. Maryland, 373 U.S. 83 (1963).
The New York State Attorney General ("the Attorney General"), who was appointed as prosecutor by this Court pursuant to Rule 42, Fed. R. Crim. P., opposes the first seven motions, does not oppose the eighth motion, and asserts that the ninth motion should be denied, without prejudice, as premature.
After a hearing held on July 13, 1992 ("the July 13 Hearing"), this Court issued a preliminary injunction in People of the State of New York v. Operation Rescue National, 92 Civ. 4884 (RJW) (the "Preliminary Injunction"), which provided that the defendants in that action, including Randall Terry, were enjoined from, inter alia,
presenting or confronting either Governor Bill Clinton or Senator Albert Gore with any fetus or fetuses or fetal remains in the City of New York or elsewhere in the Southern District of New York between [12:45 P.M. on July 13, 1992] and 12:00 midnight on July 17, 1992. . . .
Preliminary Injunction, Second Decretal Paragraph, Clause (7).
The Third Decretal Paragraph of the Preliminary Injunction indicated:
IT IS FURTHER ORDERED that nothing in the Court's Order should be construed to limit defendants and those acting in concert with them from exercising their legitimate First Amendment rights. . . .
In addition, the Fourth Decretal Paragraph of the Preliminary Injunction provided:
IT IS FURTHER ORDERED that defendant organizations and their officers and agents, and all individual defendants and those acting in concert with them, shall make good faith efforts to instruct all organizations and individuals they believe to be planning to participate in any of the activities enumerated in clauses (1) through (7) of the second decretal paragraph above not to engage in the proscribed activities. . . .
During the July 13 Hearing, this Court informed Terry's counsel, Raymond L. Mylott, Jr., that he could immediately appeal the granting of the Preliminary Injunction.
No appeal was filed on either July 13 or July 14, 1992.
The government alleges that, on the morning of July 14, 1992, Governor Bill Clinton was presented or confronted with a fetus in the vicinity of the hotel at which he was staying in Manhattan and that, on the basis of this occurrence and related incidents, Randall Terry violated the terms of the Preliminary Injunction.
At a contempt hearing held on July 16, 1992 ("the July 16 Hearing"), this Court indicated that,
having imposed coercive [civil contempt] fines on [Randall Terry on] prior occasions, and having ascertained that these fines have had no effect and having concluded that there is only one course to follow with regard to Mr. Terry, I think at least as far as Randall Terry is concerned, the next step will have to be the imposition of criminal sanctions. I intend, if this matter is proved, to impose those sanctions upon him.
July 16 Hearing Transcript at 8. Terry was released on a $ 25,000 personal recognizance bond, secured by $ 250 in cash.
Terry was arraigned and pled not guilty on August 12, 1992. His bail was continued. The ...