The opinion of the court was delivered by: Hon. Jerome B. Simandle
This matter is before the Court upon the application of Petitioner Reginald David Lundy to dissolve the Court's June 7, 2004 Order holding him in civil contempt (the "Contempt Order"). Petitioner and eight other individuals were indicted in May 2003 on charges of producing and conspiring to produce fraudulent money orders purporting to have been issued by various agencies of the United States. During the period leading up to the trial on these charges, Petitioner and several co-defendants sent a large number of documents purporting to create fraudulent liens or other financial interests to numerous judicial officers, court employees, and attorneys associated with their criminal case, which prompted the Court to issue an Order enjoining these individuals from creating or sending such documents. After Petitioner persisted in creating and mailing such fraudulent financially threatening materials, the Court, after a hearing, found him to be in civil contempt and ordered that he be incarcerated until he purged himself of his contemptuous conduct by withdrawing the documents and renouncing any future intent to send such fraudulent materials.
The Court's Contempt Order has remained in place since June 7, 2004, as Petitioner has continued to create and mail the very types of documents he was ordered to cease sending. Notwithstanding his active and sustained contemptuous behavior, Petitioner has moved the Court to vacate the Contempt Order. The Court appointed counsel for Mr. Lundy under the Criminal Justice Act and held a series of hearings, culminating with final arguments on September 15, 2008.
The central issue to be determined is whether this Court's civil Contempt Order, under which Petitioner Lundy has been confined for four years, and which Petitioner continues to violate, should be vacated. For the reasons explained below, Petitioner's application will be denied.
A. Petitioner's Financial Threats and the Contempt Order
On May 6, 2003, Mr. Lundy and eight other individuals were indicted on charges of having defrauded the United States by producing and conspiring to produce fraudulent money orders. (United States v. Harris, et al., Cr. No. 03-354-02, Docket Item 1.) Since the filing of the indictment, Petitioner and several of his co-defendants engaged in a protracted campaign aimed at harassing numerous persons associated with their criminal case by, inter alia, sending fraudulent financial security arrangements and contracts to multiple judicial officers, United States attorneys, defense attorneys, and Court personnel. As the Court explained in its April 22, 2004 Opinion:
Some of the defendants,... [including Mr. Lundy,] have, from the time this matter was in its Grand Jury phase to the present, sent baseless documents to the judicial officers and prosecutors involved which purport to require payment for each use of their names in this matter, as the defendants assert that their names are copyrighted personal property for which they are entitled damages for each "infringement." When such "invoices" or "affidavits of debt," typically for millions of dollars, are not paid, the defendants have attempted to file liens for such sums with the New Jersey Division of Revenue against the personal property of the prosecutor or judicial officer.....
By July 2003, the Court had received documents, bearing the signatures of the five above-named male defendants [including Mr. Lundy], which purported to constitute commercial contracts, liens, and security interests against the undersigned due to his performance of official duties in this criminal case. The United States applied for filing restrictions based on similar communications from the defendants. In papers filed with the Court, the defendants had stated an intention to file false affidavits of debt and UCC Financing Statements, based on false security agreements, with the New Jersey Department of Revenue, so that they could assert a recorded security interest in all personal assets of those involved in the case. (Cr. No. 03-354-02, Docket Item 193 at 3-5.)
In order to restrain Petitioner and his co-defendants from continuing to carry out these stated intentions, the Court issued an Order on August 27, 2003, pursuant to its authority under the All Writs Act, 28 U.S.C. § 1651(a), enjoining Petitioner and his co-defendants from sending any written communications to this Court, to any judicial officer or employee of this Court, to the United States Attorney, to any Assistant United States Attorney, to any employee or officer of the United States Department of Justice, or to any attorney appearing in this case, whether in an official or allegedly "private" capacity:
(1) Which attempts to create a lien or financial interest; or
(2) Which purports to state a contract with such recipient regarding any civil or commercial matter... (Cr. No. 03-354-02, Docket Item 107.) The Order further enjoined Mr. Lundy and his co-defendants from "creating affidavits of debt or UCC Financing Statements... based upon the abovedescribed security agreements or contracts or liens however entitled." (Id.)
On June 4, 2004, Richard DiGiacomo, an employee of the United States Pretrial Services office of this Court, received a document from Petitioner entitled "Notice of Acceptance and Offer," which demanded payment of $3,730,000,000.00 as a result of actions taken by Mr. DiGiacomo in the course of his employment with the Court. (Cr. No. 03-354-02, Docket Item 242.) The document further stated that Mr. DiGiacomo's failure to pay Petitioner would result in a filing of involuntary bankruptcy against him. (Id.) The Court convened a hearing on June 7, 2004, at which Petitioner, who was represented by counsel, admitted to having created and mailed the "Notice of Acceptance and Offer" to Mr. DiGiacomo. (Id.)
Upon finding that Petitioner "received and understood this Court's Order of August 27, 2003" and that he knowingly violated that Order by mailing the threatening document to Mr. DiGiacomo, the Court concluded that there was clear and convincing evidence that Petitioner had acted in civil contempt of the Court's Order. (Id.) The Court accordingly adjudged Petitioner to be in civil contempt and ordered that the appropriate sanction for such civil contempt is incarceration until defendant Lundy purges himself of his contempt by acknowledging and affirming, in writing, under penalty of perjury, and in a manner approved by this Court in a subsequent Order, that he withdraws the document entitled "Notice and Acceptance of Offer" in Exhibits C-1 and C-2 which is null and void, and that he will not create, or help create, any similar documents involving the undersigned, or any judicial officer or employee of this Court, the United States Attorney, any Assistant United States Attorney or employee or officer of the United States Department of Justice, or any attorney appearing in this case which:
(1) attempt to create a lien or financial interest or UCC Financing Statement; or
(2) purport to state a contract with a recipient regarding any civil or commercial matter; or
(3) assert an affidavit of debt, or amount owed, from the recipient's property based upon a security agreement or contract or lien however entitled. (Id.) As the discussion below makes clear, Petitioner has, to date, failed to purge his contempt, but has instead continued to mail the proscribed documents, even while his present petition is being adjudicated.
B. Conviction, Appeal, and Subsequent Proceedings Before this Court
On July 2, 2004, Petitioner was found guilty of producing and conspiring to produce fraudulent money orders in violation of 18 U.S.C. §§ 514(a) and 371, and was sentenced on October 29, 2004 to a term of imprisonment of 120 months, which was to run consecutively to his confinement under the civil Contempt Order. (Cr. No. 03-354-02, Docket Item 393.) Mr. Lundy, along with his co-defendants, appealed their convictions to the Court of Appeals. On March 31, 2008, the Court of Appeals issued an Opinion and Order finding "that each of the issues raised by appellants is without merit" and affirming the judgments of sentence. (App. No. 04-4281, Mar. 31, 2008 Opinion and Judgment; Cr. No. 03-354-02, Docket Item 540.) The Court of Appeals subsequently denied Mr. Lundy's petition for a rehearing en banc. (App. No. 04-4281, June 4, ...