United States v. George Lynch and Christopher Moscinski

162 F.3d 732, 1998 U.S. App. LEXIS 31195, 1998 WL 865111

• Court: Court of Appeals for the Second Circuit
• Decided: December 14, 1998
• Docket: 18, Docket 97-1092
• Status: Published

Opinions

Judge SACK concurs in the opinion of the Court, and also files a separate opinion.

Judge FEINBERG dissents in a separate opinion.

JACOBS, Circuit Judge:

The United States appeals from the acquittal following a bench trial in the United States District Court for the Southern District of New York (Sprizzo, J.) of persons charged with criminal contempt under 18 U.S.C. § 401(3) for allegedly violating a permanent injunction that prohibited them from further violations of the Freedom of Access to Clinic Entrances Act (“FACE”), 18 U.S.C. § 248. On appeal, the government argues that the district court erred in holding (i) that a finding of wilfulness was precluded by the sincere religious beliefs that prompted defendants’ conduct and (ii) (alternatively) that the court could exercise a prerogative of leniency to acquit even if there were proof of guilt beyond a reasonable doubt. Defendants argue that regardless of any error the district court may have made in arriving at the February 11, 1997 judgment of acquittal, we lack appellate jurisdiction under 18 U.S.C. § 3731 and the Fifth Amendment’s Double Jeopardy Clause. Because we conclude that further prosecution would constitute double jeopardy, we dismiss this appeal.

BACKGROUND

The defendants, Bishop George Lynch and Brother Christopher Moscinski (also known as Brother Fidelis) are devout Roman Catholics who are conscientiously opposed to abortion. Since 1990, they have repeatedly protested outside the Women’s Medical Pavilion, a clinic in Dobbs Ferry, New York in which abortions and other reproductive health services are performed. On several occasions, Lynch and Moscinski chose to protest the availability of abortion procedures at the clinic by sitting and praying in the clinic’s driveway, thereby impeding access to the parking lot used by patients and doctors. On these occasions, they were arrested by the police, and removed.

On October 27, 1995, the United States Attorney filed a civil complaint, charging that the defendants’ conduct violated FACE. One provision of that statute criminalizes action that “by physical obstruction, intentionally ... interferes with or attempts to ... interfere with any person” who is or has been “obtaining or providing reproductive health services.” 18 U.S.C. § 248. On February 23, 1996, the district court issued a permanent injunction, the relevant portion of which bars the defendants from violating FACE by “impeding or obstructing automotive or any other form of ingress into, or egress from, the [Women’s Medical Pavilion].”

On August 24, 1996, Lynch and Moscinski returned to their spot in the clinic’s driveway. They were arrested and charged with criminal contempt. At the bench trial on October 15, 1996,¹ the defendants stipulated that they were sitting in the driveway, that they knew of the permanent injunction, and that they knew the injunction prohibited them from obstructing automobile traffic into the clinic’s parking lot. Although the district court accepted these stipulations as findings of fact, see United States v. Lynch, 952 F.Supp. 167, 168 (S.D.N.Y.1997), it ultimately acquitted both Lynch and Moscinski of criminal contempt, see id. at 172.

In a written opinion, the district court found “as a matter of fact” that the defendants’ “sincere, genuine, objectively based and, indeed, conscience-driven religious belief, precludes a finding of willfulness.” Id. at 170. Alternatively, the district court noted, even if the wilfulness element had been established to its satisfaction, the court would have exercised a “prerogative of leniency” to acquit them nevertheless. Id. at 171.

The government is now in the unaccustomed position of appealing the judgment of acquittal.

DISCUSSION

The first question presented arises under the Double Jeopardy Clause of the Fifth Amendment and is one of appellate jurisdiction. The Criminal Appeals Act, 18 U.S.C. § 3731, provides that the courts of appeals have jurisdiction over government appeals “from a decision, judgment, or order of a district court dismissing an indictment or information ... except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.” 18 U.S.C. § 3731 (emphasis added).

There is no absolute double jeopardy bar to appellate review of a district court’s judgment of acquittal. See United States v. Wilson, 420 U.S. 332, 336, 345, 95 S.Ct. 1013, 1018, 1023, 43 L.Ed.2d 232 (1975). The availability of appellate review in that circumstance depends on the essential character of the district court’s judgment. See United States v. Scott, 437 U.S. 82, 98, 98 S.Ct. 2187, 2197, 57 L.Ed.2d 65 (1978); United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S.Ct. 1349, 1354-55, 51 L.Ed.2d 642 (1977).

The government contends that its appeal is not barred because (1) the district court found facts sufficient to establish each of the four elements of a criminal contempt offense beyond a reasonable doubt;² (2) the judgment of acquittal was based solely on a legal error — the district court’s view that the government was required to prove what the government characterizes as an additional element (bad intent or malice) that is not found in the criminal contempt context; (3) the Double Jeopardy Clause does not bar appellate review in such situations, see United States v. Moore, 613 F.2d 1029, 1038 (D.C.Cir.1979); see generally 15B Charles Alan Wright et al, Federal Practice and Procedure § 3919.5, at 661 (2d ed.1992); and (4) in a proper ease, we would have power to direct entry of a judgment of conviction based on the district court’s (supposed) finding that the prosecution established beyond a reasonable doubt each of the four required elements. We take up the government’s arguments in order.

(1) We cannot agree that this is a case in which the district court found proof of all of the required elements of the offense. Contrary to the government’s argument, the district court opinion does not reflect a finding that the fourth element of criminal contempt — wilfulness—was proven beyond a reasonable doubt. See United States v. Cutler, 58 F.3d 825, 834 (2d Cir.1995) (wilfulness is an element of criminal contempt). The district court made the following finding on the subject:

In this case, the Court finds as a matter of fact that Lynch’s and Moscinski’s sincere, genuine, objectively based and, indeed, conscience-driven religious belief, precludes a finding of willfulness. 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.

Lynch, 952 F.Supp. at 170 (citation omitted) (emphasis added). The business end of the district court’s ruling was that the government failed to establish facts sufficient to prove the element of wilfulness.

(2) We also reject the government’s contention that the district court required proof of bad intent as a separate, fifth element of the offense. Rather, the district court defined the element of wilfulness as requiring bad intent. No doubt, this was error. Wilfulness merely requires “a specific intent to consciously disregard an order of the court.” Cutler, 58 F.3d at 837 (quoting United States v. Berardelli, 565 F.2d 24, 30 (2d Cir.1977)) (internal quotation marks omitted); see United States v. Remini, 967 F.2d 754, 757-58 (2d Cir.1992) (explicitly rejecting the argument that proof of malice or bad intent is a prerequisite to a finding of wilfulness in a criminal contempt case); see also Rojas v. United States, 55 F.3d 61, 63 (2d Cir.1995) (per curiam) (wilfulness requires proof of “ ‘a volitional act done by one who knows or should reasonably be aware that his conduct is wrongful’ ”) (quoting United States v. Greyhound Corp., 508 F.2d 529, 531-32 (7th Cir.1974)); cf. United States v. Weslin, 156 F.3d 292, 298 (2d Cir.1998) (per curiam) (intent to obstruct and interfere with access to reproductive health services “is all the intent” that FACE requires). Even godly motivation does not cancel this intent. Cf. Weslin, 156 F.3d at 298 (rejecting desire “to save the lives of unborn children” as defense to FACE violation). As the district court said in a prior proceeding involving these same defendants:

That seal above my head says ... this is Caesar’s court. This is not a church, this is not a temple, this is not a mosque. And we don’t live in a theocracy. This is a court of law.

United States v. Lynch, 104 F.3d 357, 1996 WL 717912, at *2, 1996 U.S.App. LEXIS 32729, at *4-5 (2d Cir.1996) (meto.), cert. denied, — U.S. -, 117 S.Ct. 1436, 137 L.Ed.2d 543 (1997).

Nevertheless, we conclude that the district court’s error of law influenced its finding as to wilfulness and is integral to that element; it cannot be deemed (as the government argues) to be an additional, distinct, and sever-able element.

(3) Having decided that the aspect of the judgment challenged by the government is in its essential nature factual rather than legal, we must conclude (contrary to the government’s third argument) that the Double Jeopardy Clause bars this appeal. We lack jurisdiction over the prosecution’s appeal if “the ruling of the judge, whatever its label, actually represents a resolution [in the defendant’s favor], correct or not, of some or all of the factual elements of the offense charged.” Scott, 437 U.S. at 97, 98 S.Ct. at 2197 (quoting Martin Linen Supply Co., 430 U.S. at 571, 97 S.Ct. at 1355) (quotation marks omitted). Here, the factual element is wilfulness, and the district court explicitly resolved it in favor of Lynch and Moscinski. See Lynch, 952 F.Supp. at 170. It does not matter that this factual finding was arrived at under the influence of an erroneous view of the law. “[T]he fact that the acquittal may result from ... erroneous interpretations of governing legal principles affects the accuracy of that determination, but it does not alter its essential character.” Scott, 437 U.S. at 98, 98 S.Ct. at 2197 (citation and internal quotation marks omitted); see Smalis v. Pennsylvania, 476 U.S. 140, 144 n. 1, 106 S.Ct. 1745, 1748 n. 7, 90 L.Ed.2d 116 (1986) (“The status of the trial court’s judgment as an acquittal is not affected by the ... allegation that the court erred in deciding what degree of recklessness was ... required.”) (internal quotation marks omitted). What is decisive for double jeopardy purposes is that the ruling represents a “judgment ... by the court that the evidence is insufficient to convict.” Scott, 437 U.S. at 91, 98 S.Ct. at 2194; Smalis, 476 U.S. at 144, 106 S.Ct. at 1748 (quoting Scott). We therefore conclude that we lack jurisdiction to consider this appeal under 18 U.S.C. § 3731 and the Double Jeopardy Clause.

(4) We do not reach the question whether an appellate court reversing an acquittal from a bench trial would have the power to order a trial court to enter a judgment of conviction based solely upon the trial court’s prior findings of fact as to the required elements of guilt. Perhaps it can be done, but no court has done it. So far as we can tell, the dissent’s statement is the only opinion expressing a willingness to do so.

In undertaking to show the absence of any remaining fact issue for the district court, the dissent has taken the district court’s finding on wilfulness, dismantled it, studied its constituent evidence, and put it back together again without the flaw of legal error. What defeats this otherwise laudable project is that the evidence thus reconstituted is the evidence that bears upon one element of the case, as to which the district court has made a finding that released these defendants from the jeopardy in which they stood. Thus the dissent disregards the district court’s troublesome determination that the defendants’ conduct “as a matter of fact” was not wilful— and judged that it compels the opposite finding on that key element. The dissent seemingly avoids subjecting the defendants to a new jeopardy by the economical expedient of simply directing the district court to enter a judgment of conviction; but the defendants who would be called upon to serve their sentences would experience such a disposition as a factual reevaluation of guilt by the appellate court, and a new jeopardy.³

CONCLUSION

We lack appellate jurisdiction, and dismiss the appeal.

1 . The district court concluded that defendants had no right to trial by jury because the court had no intention of imposing a jail sentence in excess of six months in the event of a conviction.

2 . To prove criminal contempt, the government must “prove beyond a reasonable doubt that: (1) the court entered a reasonably specific order; (2) [the defendants] knew of that order; (3) [the defendants] violated that order; and (4) [their] violation was willful." United States v. Cutler, 58 F.3d 825, 834 (2d Cir.1995).

3 . The government makes two additional arguments on appeal.

First, it maintains that the district court's alternative ground for acquittal — the court's "prerogative of leniency” — was erroneous. It is altogether unclear whether this prerogative amounts to nullification, as the government contends (see United States v. Thomas, 116 F.3d 606, 614-18 (2d Cir.1997), and United States v. Maybury, 274 F.2d 899, 902-03 (2d Cir.1960)), or is something else. In any event, we lack jurisdiction to resolve this question.

Second, the government argues that in the event of a remand, we should assign this case to a different district court judge. Our resolution of the jurisdictional issue renders this issue moot as well. It therefore remains for the district court, whose findings exhibit perfect candor, to determine for itself whether it possesses the objectivity necessary to consider future proceedings involving these defendants, when and if any arise.