ROBERT J. WARD, District Judge.
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.
A
Procedural History
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 Abert 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) (“Clause (7)”).
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----
In Count One of the Notice of Charge, the government
alleges that, in violation of the Preliminary Injunction and 18 U.S.C. §§ 2
and 401(3),
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 ¶¶ 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 ¶¶ 6-7.
Following trial on November 19 and 20, 1992, the parties filed post-triai briefs with the Court and summations were heard on March 5, 1993.
B.
Elements of the Crime
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, 110 S.Ct. 722, 107 L.Ed.2d 741 (1990).
1. Terms of the Injunction
The Court finds that the terms of the Preliminary Injunction were specific and definite as to the time, place and type of conduct enjoined, as well as to who was enjoined from engaging in — or enjoined to engage in — such conduct.
See United States v. Terry,
802
F.Supp. 1094, 1103 (S.D.N.Y.1992) (“This Court finds that Terry is alleged to haye violated a clear and unambiguous provision of the preliminary injunction, namely a prohibition on ‘presenting or confronting ... Governor Bill Clinton ... with, any fetus or fetuses or fetal remains in the City of New York.’ ”).
2. Notice
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, “[pjarties 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, 110 S.Ct. 2206, 109 L.Ed.2d 532 (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 was 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) “presented] 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 “offered 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 convinc
ing 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 plastic container and its contents.
b. The Alleged Fetus
The government has proven, beyond a reasonable doubt, that the object in the clear plastic container presented to Governor Clinton was a fetus. This finding is based upon the Court’s review of the trial testimony given by Dr. Dennis Smyth, the New York City Medical Examiner who inspected the object contained in the clear plastic container, as well as Dr. Smyth’s autopsy report, Government Ex. 6.
The Report of Autopsy, signed by Dr. Smyth on July 16, 1992, states:
“I, HEREBY CERTIFY THAT I, DR. DENNIS SMYTH M.D., CITY MEDICAL ■ EXAMINER II HAVE PERFORMED AN AUTOPSY ON THE BODY OF A
FETUS
AT THE MANHATTAN MORTUARY ON THE 15TH DAY OF JULY 1992.
EXTERNAL EXAMINATION:
The body is that of a ... male fetus____”
Government Ex. 6 (underscoring added). Defendant presented no testimony or other evidence to controvert Dr. Smyth’s written finding.
Defendant argues that there is a legitimate question as to whether the object in the clear plastic container was a fetus or a stillborn and that, for this reason, the government has not met its burden of proving that the object was a fetus. The Court disagrees.
The Report of Autopsy does state “DIAGNOSIS: STILLBORN.”
Id.
Accordingly, Dr. Smyth found the object to be a stillborn fetus. This does not, as defendant appears to argue, create uncertainty as to what was in the plastic container. Just as a person can be diagnosed as having cancer, a fetus can be diagnosed as stillborn.
Despite defendant’s arguments to the contrary, nothing in the medical examiner’s testimony at trial refutes this conclusion.
In addition, as the government points out, if a dead fetus ceases to be a fetus once it is removed from the uterus, then that part of Clause (7) referring to “fetus or fetuses” would enjoin action which is, for all practical purposes, impossible: a person could not “present or confront” Governor Clinton or
Senator Gore with an object which remained in útero. A “defendant may not avoid criminal contempt by ‘twisted interpretations’ or ‘tortured constructions’ of the provisions of the order.”
United States v. Greyhound Corp.,
508 F.2d 529, 532 (7th Cir.1974) (quoting
United States v. Gamewell Co.,
95 F.Supp. 9, 13 (D.Mass.1951)). By interpret ing Clause (7) as only applying to an in útero fetus, Terry has created such a “tortured construction.”
Furthermore,
a defendant, if he has doubts as to his obligations under an order, may petition the court for a clarification or construction of that order. While a defendant is, of course, not required to seek such a clarification, a failure to do so when combined with actions based upon a twisted or implausible interpretation of the order will be strong evidence of a willful violation of the order.
United States v. Greyhound Corp.,
508 F.2d at 532 (citations omitted).
As noted above, Terry was represented by counsel at the July 13 Hearing. This Court has already indicated that,
[t]he Preliminary Injunction’s prohibition against “presenting or confronting ... Governor Bill Clinton ... with any fetus or fetuses or fetal remains in the City of New York” ... was the subject of considerable discussion at the July 13 Hearing, and if counsel for Terry had any doubt as to this prohibition’s meaning or scope, he had ample opportunity to raise questions and seek clarification at that proceeding.
United States v. Terry,
802 F.Supp. 1094, 1102 (S.D.N.Y.1992).
Finally, the government has met its burden of proving that the fetus examined by Dr. Smyth was the object in the clear plastic container that Belew presented to Governor Clinton on the morning of July 14. Despite the fact that the object in the plastic container was not seized at the time it was presented to Governor Clinton, the government has proved, beyond a reasonable doubt, that the object displayed by Joseph Foreman at the 9:30 a.m. press conference in the lobby of the Hotel Inter-Continental and later taken by Lieutenant Donaldson from a room on the fourth floor of the Hotel Inter-Continental was the object presented to Governor Clinton.
This object was then sent to Dr. Smyth in the Office of Chief Medical Examiner and was later identified as a stillborn fetus.
For all of the above reasons, the Court finds that the object in the clear plastic container presented to Governor Clinton was a fetus, in violation of a specific and definite term of Clause (7) of the Preliminary Injunction.
c.
The Alleged Willful Violation of Clause (7) of the Second Decretal Paragraph
The government does not allege that Terry directly violated the terms of Clause (7) by presenting or confronting Governor Clinton with a fetus or fetal remains. Rather, defendant is accused of “aiding, abetting, counseling, commanding, inducing, procuring or causing” Belew to act in violation of Clause (7) and 18 U.S.C. §§ 2 and 401(3). Notice of Charge ¶ 3.
Terry’s oum uncontested public pronouncements,
both before and after Belew presented the fetus to Governor Clinton, establish, beyond a reasonable doubt, that defendant willfully caused Belew to violate Clause (7). In addition, the government introduced other testimony and evidence establishing Terry’s link to the presentation of the fetus. Viewed as a whole, the evidence that Terry willfully caused Belew to violate Clause (7) is overwhelming.
(i) Terry’s Public Pronouncements Prior to July 14
The evidence introduced at trial demonstrated that Randall Terry, prior to July 14, made numerous statements to his supporters
and the press concerning his plans to present Governor Clinton with a fetus:
—a statement in a letter dated July 3 and signed by the defendant indicated that “We’re planning on having several aborted children with us in NY to bring the Democratic Party and Bill Clinton face to face with the horrifying reality of their position on child-killing.” Government Ex. 15; '
—the parties stipulated that, if called to the stand, Meg Handler would have testified that, on July 11, she was present in front of the Eastern Women’s Center on East 30th Street in Manhattan, when she observed Randall Terry, Patrick Ma-honey, Robert Schenck and Paul Schenck holding a fetus in their hands. A comparison of photographs taken at this scene with the medical examiner’s photographs of the fetus presented to Governor Clinton on July 14 establish, beyond a reasonable doubt, that the fetus held by Randall Terry on July 11 was the same fetus that was presented to Governor Clinton and later identified by Dr. Smyth. Ms. Handler would have testified that she heard Randall Terry speak at this location and she heard him say that “he was going to present the fetus to Governor Clinton to show him the victim of choice.” Tr. at 175;
see also
Government Ex. 32 (videotape excerpt of July 11 WNBC television news broadcast showing defendant standing in front of abortion clinic on July 11, holding a fetus, and saying, “Our most important mission is to get in Bill Clinton’s hands a little dead baby boy who was aborted — the victim of choice.”)
—a press release issued by defendant on July 11 in which defendant stated that he and others displayed an aborted child that morning at a press conference outside the Eastern Women’s Center in New York City. He also indicated that he and Reverend Schenck said, “our main purpose over the next four days is to place this aborted child into Bill and Hillary Clinton’s hands.” Government Ex. 16;
—a videotape excerpt from a July 13 television news broadcast on WABC showed Randall Terry, during the afternoon of April 13, saying, “our hope is sometime between now and the end of the convention to place in Bill Clinton’s hands the victim of choice — a dead baby.” Government Ex. 33;
—Michael Allen Gagne testified that, on the evening of July 13, he attended an Operation Rescue rally at St. Agnes Church. He testified that Terry spoke at that rally, and that, “[Terry] said that they had the fetus at the hotel, and that they had planned to present the fetus to Bill Clinton.” Tr. at 141. Gagne also testified that, during the Operation Res- ' cue rally at St. Agnes church on July 13, Robert Schenck, a defendant in the underlying civil action, “said that he and Randall Terry and Joe Foreman ... were going to present the fetus to Bill Clinton at the hotel for the best media coverage that would be there.”
Id.
(ii) Terry’s Public Pronouncements After Presentation of the Fetus '
Moreover,. after the presentation of the fetus to Governor Clinton, Terry made a number of statements to the press or on his live radio show which demonstrated his active involvement with Belew’s violation of Clause (7):
—on his live radio show broadcast within hours of the presentation of the fetus to Governor Clinton, Terry indicated,
And so we made a commitment two days ago, three days ago, that we were going to try to present Governor Clinton with an aborted baby, and this morning, by the grace of God, Harley David [Belew] ... stepped into legendary history when he presented an aborted baby to Governor Clinton.
Government Ex. 28. Defendant then described his own participation in the development of the plan to present Governor Clinton with the fetus:
This is a very sober thing that we have done, folks.
Late last night, we were praying and plotting
— in fact, on Saturday, we were praying and fasting, asking
God to grant us a miracle that we would be able to present this baby to Clinton.
Id.
(emphasis added). Later, defendant described, during a telephone exchange with Belew, the “three-tier plan” that he, Belew and others developed the night before the fetus was presented to Governor Clinton:
DEFENDANT:
[LJast night, we came up with a three-tier plan ...
BELEW: Right.
DEFENDANT: ... to present Governor Clinton with this baby.
Plan A was what Harley did,.
So,
thank God, Harley, that you
got up this morning and
went forward with the first tier of the plan. But we had moderate hopes at best that this would work this morning.
Id.
(emphasis added).
Later, defendant again tied himself to Bolew’s violation of Clause (7):
It’s unbelievable . that things have worked out, but I’m here in New York, Rev. Mahoney is with me, Rev. Schenck, Rev. Foreman, Harley David, and, by the grace of God, we prayed, we fasted, and this morning,
we were able
to present baby Nathan to Governor Clinton.
—on a FOX television news broadcast, defendant appears on the steps of the United States Court House on July 16 saying,
Since
we
tried to present him with an aborted baby, we may be imprisoned. They’re trying to crush us because of our ‘politically incorrect’ speech.
Government Ex. 4B (emphasis added).
(iii) Relationship Between Terry and Belew
Finally, the government produced unrefuted evidence which established a close working relationship between Terry and Belew, including: (1) Belew’s work for Terry’s live radio show and (2) a trip Belew and Terry took to Washington, D.C. in early April of 1992 to be present at “NOW’S death march.” Government Ex. 14.
(iv) Conclusion
Randall Terry proclaimed to his supporters and the press his intention to present a “victim of choice” to Governor Clinton at the Democratic National Convention. Following the events on the morning of July 14, defendant told listeners to his live radio show of his involvement in a three-tier plan to present an “aborted baby” to Governor Clinton. Terry cannot now escape the clear meaning of his own words. Therefore, the government has met its burden of establishing that defendant willfully caused Belew to present a fetus to Governor Clinton.
d. The Alleged Willful Violation of the Fourth Decretal Paragraph
In order to establish a violation of the fourth decretal paragraph and Count Two of the Notice of Charge, the government must prove, beyond a reasonable doubt, that (i) Terry believed that Harley David Belew was planning to violate any of the activities enumerated in clauses (1) through (7) of the second decretal paragraph and (ii) Terry did not make a good faith effort to instruct Belew not to engage in the proscribed activities.
.The government has met its burden of proof with respect to the first prong of Count Two: Terry’s own statements, described in subsection B.3.c.(ii),
supra,
establish, beyond a reasonable doubt, that Terry believed Belew was planning to present a fetus to Governor Clinton, in violation of Clause (7).
However the government has not proved, beyond a reasonable doubt, that Terry did not make a good faith effort to instruct Belew not to engage in the proscribed activities. The government’s burden here is extremely difficult: in order to establish a violation of the fourth decretal paragraph, it must prove a negative, namely that Terry did
not
do something. The government has not done this beyond a reasonable doubt. For example, two telephone calls were placed during the morning of July 14, before the fetus was presented to Governor Clinton, from the room at the Milford Plaza where Terry and Patrick Mahoney were staying to the Hotel Inter-Continental, where Belew was staying. One telephone call commenced at 12:25 a.m.
and the other commenced at 7:43 a.m. No evidence has been presented by either side as to the content of these telephone calls or parties involved. Nevertheless, it is not beyond the realm of possibility that one or both of these calls involved Terry and Belew and that, at one point during the call, Terry may have told Belew not to go forward with the plan to present a “victim of choice” to Governor Clinton, for whatever reason. Given Terry’s public statements, such a scenario is rather unlikely. However the Court is not prepared to say that it is not possible, beyond a reasonable doubt..
Short of a complete accounting of all conversations between Terry and Belew from the time of the issuance of the Preliminary Injunction on July 13 to the presentation of the fetus to Governor Clinton on July 14, the government cannot establish with the requisite level of certainty that Terry did not instruct Belew, at some point in time, not to engage in the proscribed activities. Inasmuch as neither Terry nor Belew has testified concerning the content of their conversations during this time period, the government has not met its burden of proof to sustain a conviction on Count Two.
C.
Findings of Guilt
1. Count One
In Count One, defendant is charged with violating 18 U.S.C. § 2. As the Second Circuit recently explained, the elements of proof are different under § 2(a) than they are under § 2(b).
See United States v. Concepcion,
983 F.2d 369, 383-84 (2d Cir.1992). In the instant matter, this Court does not find a violation of § 2(a), but does find a violation of § 2(b).
“Under § 2(a), ‘an aider and abetter must share in the principal’s essential criminal intent, [and]
the principal must be shown to have had the essential criminal intent.”’ Id.
at 383 (emphasis added) (quoting
United States v. Elusma,
849 F.2d 76, 78 (2d Cir.1988), ce
rt. denied,
489 U.S. 1097, 109 S.Ct. 1570, 103 L.Ed.2d 936 (1989)).
The government has not proven, beyond a reasonable doubt, that Belew, the person who presented the fetus to Governor Clinton,' had the requisite criminal intent.
Therefore, the Court finds Terry did not violate 18 U.S.C. § 2(a).
However, the Second Circuit has indicated that,
[t]he requirements of § 2(b) ... are somewhat different. Whereas § 2(a) speaks in terms of procuring or aiding and abetting the commission of an “offense,” and hence requires proof that the primary actor had criminal intent, § 2(b) speaks in terms of causing the actor to perform only an “act.” ... Thus § 2(b) adopts the “general principle of causation in criminal law that an individual (with the necessary intent) may be held liable if he is a cause in fact of the criminal violation, even though the result which the law condemns is achieved through the actions of innocent intermediaries.” ... Accordingly, the person who actually performed the act need not have had any criminal purpose or intent; if the defendant willfully caused an act that, had he performed it directly, would be an offense against the United States, he may be prosecuted under § 2(b) “even though the agent who committed the act is innocent or acquitted.”
United States v. Concepcion,
983 F.2d at 383-84 (citations omitted).
Thus, even if Belew is not guilty of any crime in connection with the presentation of the fetus, defendant may still be found guilty under § 2(b). The Court has found: (a) that Terry had notice of the terms of the Preliminary Injunction and (b) that he willfully caused Harley David Belew to violate the specific and definite terms of Clause (7). Accordingly, this Court finds Terry guilty of criminal contempt of court as charged in Count . One, in violation of 18 U.S.C. §§ 2(b) and 401(3).
,2. Count Two
As discussed in subsection B.3.d.,
supra,
the government has not proven, beyond a
reasonable doubt, that defendant violated the fourth decretal paragraph of the Preliminary Injunction. Accordingly, the Court finds defendant not guilty with respect to Count Two.
It is so ordered.