The opinion of the court was delivered by: ROBERT J. WARD
At the conclusion of 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"). Randall Terry, one of the named defendants in that civil action, is now charged with two counts of criminal contempt for violating two provisions of the Preliminary Injunction. Following a non-jury trial and upon careful consideration of the trial record, including arguments made in the post-trial briefs and in the summations, the Court makes a general finding of guilty with respect to Count One of the Notice of Charge and not guilty with respect to Count Two of the Notice of Charge. In reaching its verdict, the Court makes the following special findings of fact pursuant to Rule 23(c), Fed. R. Crim. P..
The Preliminary Injunction enjoined the defendants in the underlying civil action, including Terry, and all others acting in their behalf or in concert with them, 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 Hew 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) ("Clause (7)").
In addition, the Fourth Decretal Paragraph of the Preliminary Injunction provided:
In Count One of the Notice of Charge, the government
alleges that, in violation of the Preliminary Injunction and 18 U.S.C. §§ 2
Terry "aided, abetted, counseled, commanded, induced, procured or caused" Harley David Belew to present or confront Governor Bill Clinton with a fetus or fetal remains on July 14, 1992 in the Southern District of New York. Notice of Charge PP 2-3.
In Count Two of the Notice of Charge, the government alleges that, in violation of the Preliminary Injunction and 18 U.S.C. § 401(3), Terry "had knowledge that Harley [David] Belew was planning to present or confront Governor Bill Clinton with a fetus, fetuses or fetal remains in the City of New York on or before July 17, 1992 and did not make good faith efforts to instruct Mr. Belew not to engage in that activity." Notice of Charge PP 6-7.
Following trial on November 19 and 20, 1992, the parties filed post-trial briefs with the Court and summations were heard on March 5, 1993.
This Court may find Terry guilty of criminal contempt only if the government has proven beyond a reasonable doubt that Terry willfully violated the specific and definite terms of the Preliminary Injunction. See United States v. Twentieth Century Fox Film Corp., 882 F.2d 656, 659 (2d Cir. 1989), cert. denied, 493 U.S. 1021, 107 L. Ed. 2d 741, 110 S. Ct. 722 (1990).
1. Terms of the Injunction
Defendant had notice of the Preliminary Injunction. He was represented by counsel, Raymond L. Mylott, at the July 13 Hearing. July 13 Tr. at 3. At the conclusion of the July 13 Hearing, Clause (7) was read into the record in the presence of Mr. Mylott, who also received a copy of the Preliminary Injunction. Id. at 54-55. Moreover, as this Court has already instructed Terry, in a related civil matter, "parties are charged with a duty to monitor the progress of their cases and to ascertain the terms of any order entered against them." New York State NOW v. Terry, 697 F. Supp. 1324, 1332 n. 9 (S.D.N.Y. 1988) (citing Dole Fresh Fruit Co. v. United Banana Co., 821 F.2d 106, 109 (2d Cir. 1987); Perfect Fit Indus. Inc. v. Acme Quilting Co., 646 F.2d 800, 808-09 (2d Cir. 1981)), aff'd in part and modified in part, 886 F.2d 1339 (2d Cir. 1989), cert. denied, 495 U.S. 947 (1990).
Defendant argues that the Preliminary Injunction was issued in a "disordered and illegible condition." The Court disagrees. A review of Government Ex. 10, a copy of the Preliminary Injunction, indicates that the handwriting is legible, including the provision enjoining defendant from "presenting or confronting" Governor Clinton or Senator Gore with a "fetus, fetuses or fetal remains." Furthermore, as already noted, this provision via read into the record at the conclusion of the July 13 Hearing, in the presence of Terry's attorney.
Finally, the parties stipulated to the admission of Patrick Mahoney's deposition testimony in the civil action, People of the State of New York v. Operation Rescue National, 92 Civ. 4884 (RJW), as the testimony Mahoney would have given if called to the stand in this matter. Mahoney testified that on the evening of July 13, he discussed the hearing held before this Court earlier in the day and the Preliminary Injunction with Terry, including the fact that the Preliminary Injunction was "outrageous" and "restricted . . . free speech." Defendant has not challenged Mahoney's account of this discussion. Government Ex. 22 at 62, 67.
3. Willful Violation of the Injunction
In connection with the alleged incident itself, the government must prove, beyond a reasonable doubt, that Governor Clinton was (a) "present[ed] or confront[ed]" with (b) a "fetus or fetuses or fetal remains." It is uncontested that Terry did not present or confront Governor Clinton with a fetus himself. Therefore, in order to obtain a conviction on Count One, the government must also prove, beyond a reasonable doubt, that (c) Terry willfully aided, abetted, counseled, commanded, induced, procured or caused
the commission of this alleged act. Finally, to obtain a conviction under Count Two, the government must prove, beyond a reasonable doubt, that (d) Terry believed Belew planned to violate the Preliminary Injunction and did not make a good faith effort to instruct Belew not to do so.
a. The Alleged Presentation or Confrontation
The Court finds, beyond a reasonable doubt, that Harley David Belew presented Governor Bill Clinton with an object, which appeared to be a human fetus,
contained in a clear plastic container at approximately 8:00 a.m. on July 14, 1992, on the sidewalk outside an entrance to the Hotel Inter-Continental, in the Southern District of New York.
In making this finding, the Court draws on the testimony of William Patrick Glenn, a special agent with the United States Secret Service; Irving F. Donaldson, a lieutenant with the New York City Police Department; and John T. Wnek, a New York City police officer. All three witnesses observed the events that occurred immediately after Governor Clinton exited the Hotel Inter-Continental on the morning of July 14, 1992. In addition, the Court has examined two photographs taken at that time. Government Exs. 1 & 2.
The evidence establishes that, as Governor Clinton was entering his limousine at approximately 8:00 a.m on July 14, a man, later identified as Belew, called out to Governor Clinton, asking him for an autograph. When Governor Clinton approached Belew to oblige, Belew handed him a folded newspaper and a ball point pen. Concealed beneath the newspaper was a white plastic bag. Once Governor Clinton had taken the newspaper and the pen, Belew reached into the plastic bag and removed a clear plastic container. Inside the clear plastic container was an object which appeared to be a human fetus. At this point, a photograph, Government Ex. 1, shows Belew's hands extended toward Governor Clinton and holding the clear plastic container so that Governor Clinton could see the object in the container. Belew then said to Governor Clinton, "What about the babies?".
Webster's New World Dictionary of the American Language, Second College Edition defines "present" as, inter alia, "to offer for viewing or notice; exhibit; display; show." There is no reasonable doubt in the Court's mind that Belew "presented" the clear plastic container to Governor Clinton, or, put in terms of the dictionary definition, he "offer[ed the container] for viewing or notice" by Governor Clinton. Belew purposely removed the clear plastic container from the white plastic bag and made a comment to Governor Clinton relating to the contents of the clear plastic container. Furthermore, because the container was clear, so that it contents were visible, any presentation of the container is, by definition, a presentation of its visible contents. Therefore, Belew also presented the object in the container to Governor Clinton.
Defendant asserts that Belew did not present Governor Clinton with the contents of the clear plastic container because Governor Clinton "exposed" himself to the clear plastic container by taking the newspaper from Belew's hands.
This argument is not convincing for two reasons. First, Lieutenant Donaldson testified that, once Governor Clinton took the newspaper from Belew's hands, Belew removed the clear plastic container from a white plastic bag.
A bag of that description is visible in Belew's hand in the photograph of Belew and Clinton. Government Ex. 1. Therefore, Belew presented Governor Clinton with the fetus by removing the clear plastic container from the white plastic bag after Governor Clinton had taken the newspaper. Second, assuming, arguendo, that Governor Clinton's acceptance of the newspaper was the final act which exposed him to the object in the clear plastic container, this Court still finds that Belew presented the object in the container to Governor Clinton. By asking Governor Clinton to autograph the newspaper, it was Belew's intention that Governor Clinton would take the newspaper, thereby exposing what lay underneath, in much the same way that a person might give a boxed and wrapped gift to another with the expectation that the recipient will unwrap the gift and "expose" himself to what is inside the box. In such a case, the giver has "presented" the gift to the recipient. Likewise, the Court finds, beyond a reasonable doubt, that Belew presented the clear plastic container and its contents under a newspaper to Governor Clinton with the expectation that Governor Clinton would remove the newspaper and "view or notice" the package's contents.
Accordingly, the government has met its burden of proof in establishing that Belew presented Governor Clinton with the clear ...