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UNITED STATES v. TERRY

November 20, 1992

UNITED STATES OF AMERICA
v.
RANDALL TERRY, Defendant.


Ward


The opinion of the court was delivered by: ROBERT J. WARD

WARD, District Judge.

 Defendant Randall Terry served and filed nine separate motions in connection with his forthcoming criminal contempt trial before this Court. At oral argument on September 24, 1992 and in a subsequent opinion, United States v. Randall Terry, 92 Cr. Misc. #1 Pg. 46 (RJW), 1992 WL 275265 (S.D.N.Y. Oct. 6, 1992) ("the October 6 Opinion"), this Court disposed of eight of these motions and deferred decision on one motion, the Motion to Disqualify the [New York State] Attorney General from Appointment as Prosecutor ("the Motion to Disqualify"), pending further submissions to the Court and, if necessary, an evidentiary hearing. The Attorney General of the State of New York ("the Attorney General") opposes the Motion to Disqualify. For the reasons hereinafter stated, the Motion to Disqualify is denied.

 BACKGROUND

 The underlying facts and general procedural history of this action are described in the October 6 Opinion and the Court assumes familiarity with that decision.

 At a contempt hearing held on July 16, 1992 ("the July 16 Hearing"), the Court noted that it had previously imposed coercive civil contempt fines on Terry in a related civil matter, 88 Civ. 3071 (RJW), and that "these fines have had no effect." July 16 Hearing Transcript at 8. For this reason, the Court, sua sponte, indicated that, if it was proved that Terry violated this Court's preliminary injunction issued July 13, 1992 ("the July 13 Preliminary Injunction"), the imposition of criminal sanctions, rather than civil sanctions, would be appropriate.

 Pursuant to the instructions of the Supreme Court in Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 801-02, 95 L. Ed. 2d 740, 107 S. Ct. 2124 (1987), this Court referred the matter to the United States Attorney for the Southern District of New York. The United States Attorney subsequently declined to prosecute the alleged criminal contempt and "suggested that the Court consider appointing a private attorney to prosecute the putative contumacious conduct pursuant to Rule 42(b) of the Rules of Criminal Procedure." Letter of August 3, 1992 from Otto G. Obermaier, United States Attorney to Hon. Robert J. Ward.

 At a hearing on August 5, 1992, this Court, on its own initiative, inquired whether the Attorney General would be agreeable to appointment to prosecute the alleged criminal contempt by Terry. The Attorney General responded in the affirmative, whereupon the Court appointed the Attorney General to prosecute this matter. See Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. at 793-801 ("It is long settled that courts possess inherent authority to initiate contempt proceedings for disobedience to their orders, authority which necessarily encompasses the ability to appoint a private attorney to prosecute the contempt." Id. at 793.).

 At the same hearing, the initial charge of civil contempt against Terry, which had been brought on by an order to show cause signed by this Court on July 15, 1992, was dismissed. Transcript of Proceedings of August 5, 1992 at 5. The order to show cause why the eight remaining defendants *fn1" should not, inter alia, be held in civil contempt of the July 13 Preliminary Injunction ("the civil contempt proceeding") is still pending.

 Following appointment of the Attorney General to prosecute the criminal contempt, plaintiff filed the instant Motion to Disqualify. In support of his motion, Terry filed a declaration stating, in relevant part:

 2. I did attend a pro-abortion rally held on the Mall in Washington, D.C. on April 5, 1992, for the purpose of expressing the opposing pro-life viewpoint.

 3. The Attorney General of the State of New York, Robert Abrams, also attended that rally. When he saw me he walked over to me and began loudly chanting, "you are going to lose." He then emphasized his enmity toward me by lodging his thumbs in his ears, wriggling his fingers, and sticking out his tongue.

 Declaration in Support of Motion to Disqualify PP 2-3 ("the Terry declaration").

 At the September 24 oral argument on the Motion to Disqualify, the Attorney General took the position that the alleged events described in the Terry declaration were "irrelevant," arguing that "what has been described in Mr. Terry's papers is an innocuous passing of two men at a large rally in Washington and it has no bearing on this matter whether the Attorney General in fact can maintain the appropriate impartiality in pursuing the responsibilities that this Court has appointed him to fulfill." September 24 Hearing Transcript at 21-22.

 The Court then expressed its view that the alleged incident described in the Terry declaration was, indeed, relevant to defendant's motion, id. at 22, and invited the parties to file any additional affidavits and supplemental submissions on the law.

 Terry subsequently filed a declaration by Jeff White in which the declarant claimed:

 2. I was present with Randall Terry at a pro-abortion rally held on the Mall in Washington, D.C., on April 5, 1992.

 3. At a certain point during that demonstration I saw a bald headed man in a suit approach Mr. Terry and loudly chant, "you are going to lose." The man then lodged his fingers in his ears and stuck out his tongue at Mr. Terry.

 4. Although at the time I did not know who this individual was, I have subsequently come to learn through seeing a photograph that the man who stuck his tongue out at Mr. Terry is Robert Abrams, the Attorney General of the State of New York.

 Because (1) the affidavits in opposition directly contradict the declarations in support and (2) the declarations in support, if true, suggest that the Attorney General may harbor personal animosity against Terry, this Court held an evidentiary hearing on November 18, 1992 in order to make factual findings concerning the events of April 5, 1992 and, as a ...


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