Id. at 747 (citation omitted). I find it impossible to disagree.4 Indeed, it is arguable that because the district court was called upon to preside over proceedings thick with political and moral implications its fastidious adherence to the rule of law was most clearly required and any departure therefrom that much more strongly to be condemned.

But it is not the district judge whom the government seeks for a third time now to convict and punish; it is Bishop Lynch and Brother Moscinski. And it is not the district judge or his decisions that are protected by the Double Jeopardy Clause of the Fifth Amendment; it is these defendants.

The Double Jeopardy Clause provides that no "person [shall] be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. "The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense...." Jenkins, 420 U.S. at 370 (quoting Green v. United States, 355 U.S. 184, 187 (1957)). When the awesome power of the United States is fully enlisted in the endeavor of seeking to overturn an acquittal in a case boiling with political significance, it seems to me that the Double Jeopardy Clause attains its full stature as a bulwark for the individual against the virtually unlimited resources of the government employed to achieve its ends of the day.

The case before us, then, is an archetypal one for reliance on the Double Jeopardy Clause, demanding the most punctilious regard for the Fifth Amendment rights of these defendants. Since I have concluded that the government did not have the ability under the Constitution to have a second chance to convict Lynch and Moscinski, I believe all the more that we are wise in not giving the government a third opportunity to try to convict them upon rehearing en banc.

CABRANES, Circuit Judge, with whom Judges Parker, Pooler, and Sotomayor concur, and with whom Judge Leval concurs as to Parts I and II, dissenting from the denial of rehearing en banc:

The petition of the United States to re-hear this matter en banc has been denied by the vote of an evenly divided court, in which the dissenting judge from the original panel (Judge Feinberg) was disabled by law from casting a ballot despite the fact that he would have been entitled to participate in such a rehearing.1 I respectfully dissent. I do so primarily because this case involves two questions of exceptional importance: (1) the permissibility of an appeal by the Government from an acquittal following a trial without a jury, and (2) the legitimacy of the district court's unprecedented proclamation that both juries and judges, when sitting as triers of fact, enjoy a "prerogative" to nullify the law. I do so also because, in answering the first question and declining to reach the second, the panel majority appears to have engaged in an analysis that conflicts with governing cases, thereby making an en banc rehearing necessary to maintain uniformity of precedent.

The defendants in this case faced charges of criminal contempt based on their alleged violation of a court-ordered permanent injunction. See United States v. Lynch, 162 F.3d 732, 733 (2d Cir. 1998).2 The injunction had been entered by the district court after the defendants had repeatedly impeded access to the parking lot of a medical clinic by sitting in the clinic's driveway. See id. After a bench trial, the district court adopted the parties' stipulation that the defendants had returned to the clinic and seated themselves in the driveway, and-importantly-that "they knew of the Court's injunction, and knew that they were enjoined from 'impeding or obstructing automotive or any other form of ingress into, or egress from, the [Clinic].'" See United States v. Lynch, 952 F. Supp. 167, 168 (S.D.N.Y. 1997) (quoting the parties' stipulation). Nevertheless, the district court found the defendants not guilty of criminal contempt. Adopting a definition of willfulness that is undisputedly erroneous, the court stated that the defendants' sincere religious belief "preclude[d] a finding of willfulness," and that, in any event, the facts presented "clearly call[ed] for ... that exercise of the prerogative of leniency which a fact-finder has to refuse to convict a defendant, even if the circumstances would otherwise be sufficient to convict." Id.at 170, 171. On the Government's appeal, a majority of the three-judge panel concluded that appellate jurisdiction does not exist because it would run afoul of the Fifth Amendment's Double Jeopardy Clause.

The Double Jeopardy Clause bars a post-acquittal appeal by the Government when the appeal "might result in a second trial [or] translate into further proceedings of some sort, devoted to the resolution of factual issues going to the elements of the offense charged." Smalis v. Pennsylvania, 476 U.S. 140, 146 (1986) (internal quotation marks omitted). Under this principle, a general verdict of "not guilty," whether rendered by a jury or by a judge sitting as a trier of fact, is not appealable, because a judgment of conviction cannot validly be entered without further factual proceedings. If, however, the judge at a bench trial prepares special findings of fact, seeFed. R. Crim. P. 23(c),3

it may be possible upon sifting those findings to determine that the court's finding of 'not guilty' is attributable to an erroneous conception of the law whereas the court has resolved against the defendant all of the factual issues necessary to support a finding of guilt under the correct legal standard.

United States v. Jenkins, 420 U.S. 358, 367 (1975), overruled on other grounds by United States v. Scott, 437 U.S. 82, 99 (1978), as stated in Smalis, 476 U.S. at 146 n.9. In these circumstances, the governing test is "whether it is 'clear that the court, in its findings of fact and conclusions of law, expressly or even impliedly found against the defendant on all issues necessary to establish guilt under ... the applicable law.'" United States v. Fayer, 523 F.2d 661, 663-64 (2d Cir. 1975) (quoting Jenkins, 420 U.S. at 367). If so, then there has been a finding of guilt, in substance though not in form, which an appellate court can instruct the trial judge to "reinstate" upon remand without any additional fact-finding. Cf. Jenkins, 420 U.S. at 367-68 (holding that the appeal was barred because, on the record there presented, "there was no ... finding [of guilt], in form or substance, to reinstate") (emphasis added).

The case before us is one of first impression, in that the district court not only entered special findings, but also stated that it was resolving an element of the offense-willfulness-in favor of the defendants.4 The panel majority concludes that this factor is "decisive for double jeopardy purposes." Lynch, 162 F.3d at 735.5 Relying on Supreme Court cases other than Jenkins, the panel majority reasons that the Double Jeopardy Clause bars an appeal by the Government "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," even if the ruling is attributable to "erroneous interpretations of governing legal principles." Id. at 735 (internal quotation marks and brackets omitted). Those cases, however, establish only that such a ruling constitutes an "acquittal," and it is well settled that Government appeals, even of "acquittals," are not barred unless the success of the appeal "would lead to proceedings that violate the Double Jeopardy Clause." Smalis, 476 U.S. at 145-46 & n.9.6

It therefore appears that the panel majority, by failing to address directly the central question of whether the appeal would require further factual proceedings, misstates the applicable legal standard.7 Admittedly, some aspects of the panel majority's opinion suggest that it might have reached the same result even under the appropriate standard. In particular, the panel majority noted that if the trial court were directed to enter a judgment of conviction, "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." Lynch, 162 F.3d at 736. Nevertheless, the majority's holding is based not on this conclusion, but, instead, on the apparent misreading of Supreme Court cases discussed above. Accordingly, I believe that rehearing en banc is necessary to conduct the analysis dictated by the governing precedents.

Because the petition for en banc rehearing has been denied, it is not necessary to take a definitive position as to whether the required analysis would lead to a conclusion that appellate jurisdiction does in fact exist in this case. Nevertheless, it is appropriate to note that the circumstances presented here demonstrate the potential for a strong argument to be made in certain unusual cases that a district judge, while stating that he was resolving an element of the offense in favor of the defendants, "impliedly found against the defendant on all issues necessary to establish guilt under ... the applicable law." Fayer, 523 F.2d at 664 (quoting Jenkins, 420 U.S. at 367).

The logical starting point for this inquiry is the district court's findings of fact. Here, the district court formally incorporated into its findings a number of undisputed facts that had been set forth in a stipulation signed by the parties, including the following:

* That "[o]n August 24, 1996, at approximately 7:30 a.m.," the defendants were seated in the driveway of the Women's Medical Pavilion (the "Clinic") in Dobbs Ferry, New York. Lynch, 952 F. Supp. at 168.

* That "[a]t approximately 7:50 a.m., after observing several vehicles unsuccessfully attempt to enter the [Clinic's] parking lot, officers warned [the defendants] that they were violating the law, and that if they did not leave the area immediately, they would be arrested." Id.

* That "[the defendants] acknowledged the warning and remained seated." Id.

* That "[the defendants] acknowledged that at the time they sat in the Clinic's driveway they knew of the Court's injunction, and knew that they were enjoined from 'impeding or obstructing automotive or any other form of ingress into, or egress from, the [Clinic].'" Id. (quoting the injunction).

Of course, we cannot order the district court to enter a judgment of conviction based on our own finding of the element of willfulness. See, e.g., Lynch, 162 F.3d at 740 (Sack, J., concurring). However, when determining whether the district court impliedly found willfulness, we are not necessarily required to ignore the near inevitability of such an inference from these subsidiary factual findings. Furthermore, the district court's findings of fact are to be considered in conjunction with its conclusions of law, which in this case are even more compelling. See Fayer, 523 F.2d at 663-64 (articulating applicable test as whether court expressly or impliedly found against defendant "in its findings of fact and conclusions of law").

The district court began its analysis of the law by noting that it had "asked the parties to brief whether it is a defense to a criminal contempt charge that a person act with a sincere religious belief that he is acting to save a human life." Lynch, 952 F. Supp. at 169 (emphasis added). After a somewhat lengthy consideration of the availability of such a defense, the district court stated that it did not need to resolve the issue, because "the Court finds 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.

By way of explanation, the court stated that criminal "willfulness" requires not just "deliberate conduct" but a "bad purpose" in disregarding the law. Id. In support of this proposition, the court discussed only one case, United States v. Sisson, 399 U.S. 267 (1970), a Supreme Court case in which another district court had set aside a jury's guilty verdict after finding that, in light of the defendant's sincere moral belief, the Free Exercise and Due Process Clauses prohibited application of the 1967 draft act. See Lynch, 952 F. Supp. at 170; see also Sisson, 399 U.S. at 278. The Supreme Court, however, determined only that the acquittal was non-appealable under the Criminal Appeals Act, not that it was correct.8 As the panel majority's opinion recognized, a bad purpose or motive is unnecessary for a criminal contempt conviction, and deliberate conduct is sufficient. See Lynch, 162 F.3d at 735.

Finally, the district court was clear that, if bad purpose were not required, it would "exercise ... the prerogative of leniency which a fact-finder has to refuse to convict a defendant, even if the circumstances would otherwise be sufficient to convict." Lynch, 952 F. Supp. at 171 (emphasis added).

In sum, the district court: (1) expressly made subsidiary findings of fact that could be viewed as pointing almost inevitably to a conclusion of willfulness, (2) nevertheless considered, in light of these findings, whether religious belief might be a defense to criminal contempt, (3) abruptly changed its tack and found "as a matter of fact" that religious belief "precludes" a finding of willfulness, based on a determination that "willfulness" requires not only deliberateness but a bad purpose or motive, (4) suggested that this erroneous legal definition and conclusion were critical to its determination that the elements of criminal contempt had not been met, and (5)proclaimed its intention to exercise a perceived "prerogative" to nullify the law by refusing to convict even if those elements had been met.

In these circumstances, en banc review of this case might have led to the conclusion that the district court found willfulness, properly defined, and would have been forced to say so more explicitly were it not for its erroneous reliance on the absence of bad purpose.9 The potential for such a conclusion, coupled with the district court's apparent maneuvering,10 would, I believe, have given the en banc court good reason to pause and consider whether it would "elevate[] form over substance," see Lynch, 162 F.3d at 745 (Feinberg, J., dissenting), to give dispositive effect to the district court's purported resolution of the willfulness element in the defendants' favor.

Finally, if we were to conclude that appellate jurisdiction does exist and that the district court's "no willfulness" determination is reversible, we would then be squarely confronted with the district court's alternative basis for acquittal-that the defendants' actions "clearly call for ... that exercise of the prerogative of leniency which a fact-finder has to refuse to convict a defendant, even if the circumstances would otherwise be sufficient to convict." Lynch, 952 F. Supp. at 171. All else being equal, it might be sufficient to state that the district court's proclamation and exercise of this "prerogative" presents a second exceptionally important issue that would be reached if appellate jurisdiction exists. Despite having found jurisdiction to be lacking, however, the panel majority noted its belief that "[i]t is altogether unclear whether this prerogative amounts to nullification ... or is something else." See Lynch, 162 F.3d at 736 n.3. In my view, this dictum is potentially dangerous, in that it might be read as a suggestion that, although the courts have repeatedly deplored nullification, triers of fact may yet have a right to "refuse to convict," see Lynch, 952 F. Supp. at 171, despite having found facts that require conviction under the applicable law. Accordingly, I think it appropriate to note my own view that there is no basis for the panel majority's suggestion that a distinction may exist between "nullification" and a "prerogative of leniency," much less that any such distinction might be significant.

In United States v. Thomas, 116 F.3d 606 (2d Cir. 1997), we restated well-established principles that "the power of juries to 'nullify' or exercise a power of lenity is just that-a power; it is by no means a right or something that a judge should encourage or permit if it is within his authority to prevent," id. at 615 (emphasis added), because verdicts resulting from nullification "'are lawless, a denial of due process and constitute an exercise of erroneously seized power.'" Id. at 616 (quoting United States v. Washington, 705 F.2d 489, 494 (D.C. Cir. 1983) (per curiam) (Robinson, MacKinnon, R.B. Ginsburg, JJ.). Although the district court's decision was rendered four months before Thomas, it was preceded by a century-old line of cases holding that jury nullification is a power and not a right. See, e.g., Standefer v. United States, 447 U.S. 10, 22 (1980) (referring to nullification as an "assumption of a power which [the jurors] had no right to exercise, but to which they were disposed through lenity") (internal quotation marks omitted); Dunn v. United States, 284 U.S. 390, 393 (1932) (same) (quoting Steckler v. United States, 7 F.2d 59, 60 (2d Cir. 1925) (L. Hand, J.)); Sparf v. United States, 156 U.S. 51, 101 (1895) ("Public and private safety alike would be in peril if the principle be established that juries in criminal cases may, of right, disregard the law as expounded to them by the court, and become a law unto themselves."). As eloquently expressed by Judge Feinberg in his dissenting opinion, the damage to our judicial system is exponentially greater when a judge, in whom the Constitution entrusts the power "to say what the law is," Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803), proclaims for himself and purports to exercise a "prerogative" to nullify the law by acquitting guilty defendants if and when he sees fit to do so, thereby engaging in the very same lawless usurpation of power that he is bound to do his utmost to prevent.11

As noted above, if we were to rehear this case en banc and find that appellate jurisdiction exists, we would be in a position to offer an appropriate condemnation of the assertion of a "prerogative of leniency" by a judge acting as a trier of fact. Even if we were to conclude that no jurisdiction exists, we could-at the very least-expunge the panel majority's potentially dangerous dictum. In my view, this prospect only adds strength to the appropriateness of rehearing this appeal en banc for the primary purpose of correcting the panel majority's apparent misstatements and then conducting the double jeopardy analysis that is called for by the governing precedents. Accordingly, I respectfully dissent from the denial of en banc review.