Reginald David Lundy v. JOHN YOST On Appeal from the United States District Court for the District of New…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-4190
___________
REGINALD DAVID LUNDY,
Appellant
v.
JOHN YOST
_______________________
On Appeal from the United States District Court
for the District of New Jersey
D.C. Civil Action No. 07-cv-4180
(Honorable Jerome B. Simandle)
______________
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 4, 2010
Before: SCIRICA, FUENTES and JORDAN, Circuit Judges.
(Filed: January 4, 2011)
_________________
OPINION OF THE COURT
_________________
SCIRICA, Circuit Judge.
Reginald Lundy appeals the District Court‟s denial of his motion to vacate an
order of civil contempt under which he is incarcerated. The order of civil contempt

-- 1 of 12 --

2
resulted from Lundy‟s continued refusal to cease violating a court order that he desist
from filing false and harassing documents purporting to establish judgments and lien
claims against the court, United States attorneys, defense attorneys, and other personnel
affiliated with the court. The order was entered in an underlying criminal proceeding in
which he was convicted of conspiracy to produce and pass, and of possessing and
passing, fraudulent financial documents represented as issued by agencies of the United
States, and sentenced to 120 months of imprisonment. But Lundy‟s criminal sentence,
set to run consecutively to confinement under the civil contempt order, has yet to begin
because Lundy continues to engage in contemptuous conduct and so has been imprisoned
under the order of civil contempt since June 7, 2004. We will affirm.
I.
The facts of the underlying criminal case and contemptuous conduct are well-
known to the parties and well-documented in various district court opinions, see, e.g.,
United States v. Harris, 332 F. Supp. 2d 692, 694 & 694 n.1 (D.N.J. 2004), and in a
related case involving Lundy‟s co-conspirator and co-contemnor‟s appeal, see United
States v. Harris, 582 F.3d 512 (3d Cir. 2009) (affirming denial of motion to vacate order
of civil contempt). Defendants in the underlying case purport to be members of an
organization called the Al-Moroccan Empire or Moors, and claim to believe they are
sovereigns of an empire that predates the United States, to which the United States owes
rent money for the use of land, and because of which the United States cannot subject
defendants to its criminal laws. Harris, 332 F. Supp. 2d at 694. Defendants printed

-- 2 of 12 --

3
money orders, purporting to draw from accounts at the United States Department of
Transportation or Department of the Treasury, which defendants used to pay outstanding
loans and other expenses. On May 6, 2003, Lundy was charged with conspiracy to
produce and pass false and fictitious money orders, and with possessing or passing, with
the intent to defraud, fictitious securities or other financial instruments represented as
authorized by the United States Department of Transportation and the United States
Department of the Treasury, in violation of, respectively, 18 U.S.C. § 371 and 18 U.S.C.
§ 514(a).
After the indictment, Lundy and other of the defendants began to harass the court
and prosecutors by sending, among other things, fraudulent financial security
arrangements, contracts, and lien claims. On August 27, 2003, the court entered an order
enjoining Lundy and other 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 . . . [w]hich attempts to create a lien or financial
interest; or . . . [w]hich purports to state a contract with such recipient regarding any civil
or commercial matter,” and from “creating affidavits of debt or UCC Financing
Statements . . . based upon the above-described security agreements or contracts or liens
however entitled.” Lundy continued to send bogus financial documents and the Court
issued an order of contempt on June 7, 2004, finding Lundy in civil contempt of the

-- 3 of 12 --

4
August 27, 2003, injunction. Under the contempt order, Lundy was to be confined until
he purged his contempt by, among other things, ceasing to send such documents to the
court and others associated with the case, and by renouncing any future intent to
recommence.
Lundy was jointly tried and, on July 2, 2004, convicted with codefendants William
Oscar Harris, Reginald Wooten, Arthur Outterbridge, and Robert McCurdy. On October
29, 2004, Lundy was sentenced to a total term of 120 months imprisonment, set to run
consecutively to his confinement under the civil contempt order of June 7, 2004.
(District Court *3.) Lundy and his co-defendants appealed, and the Third Circuit
affirmed the judgments of sentence, see United States v. Harris, 271 F. App‟x 188, 190
(3d Cir. 2008) (finding “each of the issues raised by appellants is without merit”), and
denied Lundy‟s petition for rehearing en banc. Despite the conclusion of Lundy‟s
criminal case, because Lundy has continued to mail fraudulent financial demands,
contracts, and claims, he remains imprisoned under the contempt order, tolling the
running of his criminal sentence.
Lundy filed a motion to vacate the court‟s contempt order on August 31, 2007.
Lundy argued that the enactment of a federal criminal statute, 18 U.S.C. § 1521,1
1 Section 1521, entitled “Retaliating against a Federal judge or Federal law enforcement
officer by false claim or slander of title,” provides:
Whoever files, attempts to file, or conspires to file, in any public record or in any
private record which is generally available to the public, any false lien or
encumbrance against the real or personal property of an individual described in

-- 4 of 12 --

5
criminalizing the filing or attempted filing in any public record of false lien claims
against “any officer or employee of the United States or of any agency in any branch of
the United States Government”—certain of the conduct for which Lundy is being held in
contempt—removed any justification for the contempt order because if the “statute itself
does not deter Mr. Lundy‟s mailings, then prosecution under section 1521 would more
effectively and more appropriately target Mr. Lundy‟s conduct than would the Contempt
Order.” In reply, the government argued that Lundy‟s persistent and “knowing defiance
of the Court‟s orders should not be rewarded through the dissolution of the Contempt
Order simply because [Lundy‟s] contumacious behavior is persistent.” Furthermore, the
government contended that the conclusion of Lundy‟s criminal case had not eliminated
the need for the contempt order, which was entered for “general law enforcement
purposes,” and not for “evidentiary, trial-related or other purposes tied to the pendency of
the proceeding.”
The District Court‟s findings of fact included that Lundy (1) possessed the
competency to understand the nature of and bring himself into compliance with the order
of contempt; (2) had not purged himself of his contempt by ceasing to send false and
section 1114, on account of the performance of official duties by that individual,
knowing or having reason to know that such lien or encumbrance is false or
contains any materially false, fictitious, or fraudulent statement or representation,
shall be fined under this title or imprisoned for not more than 10 years, or both.
18 U.S.C. § 1521. Section 1114 reads: “[A]ny officer or employee of the United States
or of any agency in any branch of the United States Government (including any member
of the uniformed services) . . . .” 18 U.S.C. § 1114.

-- 5 of 12 --

6
fraudulent financial demands, contracts and claims, and had indicated he did not intend to
cease; (3) had not been deterred by 18 U.S.C. § 1521 from mailing financially threatening
documents; and (4) had been able to subvert whatever measures the Bureau of Prisons
had in place to prevent such abuses of the mail system.
The District Court reasoned “the Contempt Order adjudged [Lundy] to be in civil
contempt, and imposed the coercive sanction of imprisonment not to punish [Lundy‟s]
past noncompliance with the Court‟s orders, but to compel future compliance.” Although
such orders “ordinarily abate when the proceedings out of which they arise are
terminated,” United States v. Slaughter, 900 F.2d 1119, 1125 (7th Cir. 1990), the District
Court concluded the sustained application of the contempt order was warranted because
Lundy was still engaged in related proceedings before the court.2
II.3
2 Lundy filed a § 2255 petition challenging his criminal conviction.
3 The District Court had jurisdiction under 18 U.S.C. §§ 401 and 3231. “Although now
codified at 18 U.S.C. § 401 … the contempt power is rooted principally in the inherent
power of the judiciary.” Eash v. Riggins Trucking, Inc., 757 F.2d 557, 563 n.8 (3d Cir.
1985); see also Republic of the Philippines v. Westinghouse Elec. Corp., 43 F.3d 65, 73
(3d Cir. 1994) (“Nor do … formal rules and legislative dictates exhaust district courts‟
power to control misbehaving litigants. To the contrary, the Supreme Court recently
reaffirmed that a district court has inherent authority to impose sanctions upon those who
would abuse the judicial process.”) (citing Chambers v. NASCO, Inc., 501 U.S. 32, 43-44,
111 S.Ct. 2123, 2132, 115 L.Ed.2d 27 (1991)) . We have jurisdiction under 28 U.S.C. §
1291. “We review a district court‟s decision on a motion for contempt for abuse of
discretion.” Marshak v. Treadwell, 595 F.3d 478, 485 (3d Cir. 2009) (citing Roe v.
Operation Rescue, 54 F.3d 133, 137 (3d. Cir. 1995)). “We review the Court‟s legal
conclusions de novo, and will reverse „only where the decision is based on an error of law
or a finding of fact that is clearly erroneous.‟” United States v. Harris, 582 F.3d 512, 514
(3d Cir. 2009) (quoting Marshak v. Treadwell, 595 F.3d 478, 485 (3d Cir. 2009)).

-- 6 of 12 --

7
On appeal, Lundy argues certain of the conduct covered by his order of civil
contempt has been made criminal, that the statute criminalizing the conduct applies
“retroactively to the date the contempt order was first imposed,” and that the order of
civil contempt must therefore be dissolved and Lundy should receive credit towards his
criminal sentence in the amount served under the contempt order. Specifically, Lundy
claims that under Teague v. Lane, 489 U.S. 288 (1989), 18 U.S.C. § 1521, enacted while
his appeal in the underlying criminal matter was pending and proscribing certain of the
conduct covered by the civil contempt order, applies retroactively to require the
dissolution of his civil contempt sanction “based upon a violation of the due process
standards applicable to criminal contempt proceedings under 18 U.S.C. [§] 1521.”4
4 Lundy states the order of “civil contempt undermines Lundy‟s due process rights as it is
clear by the number of documents filed by Lundy that he is never going to comply and
civil contempt can continue indefinitely . . . .” We reject Lundy‟s contention that due
process “places a temporal limitation on the amount of time for which a civil contemnor
can be confined, regardless of the validity of the underlying order on the merits and the
contemnor‟s ability to comply with that order.” United States v. Harris, 582 F.3d 512,
516 (3d Cir. 2009). Lundy does not challenge the order on the merits or dispute his
ability to comply with the order. In a factually analogous case, we have previously held:
We cannot conclude that an order such as the one at issue here could ever lose all
of its coercive effect. After all, the order requires [appellant] to simply stop what
he is doing, with the District Court indicating that a period of inaction is all that is
needed for it to lift the contempt. Considering the benefit to be gained by
[appellant] in complying with the Court‟s order-to wit, the lifting of the contempt
and the commencement of the underlying sentence-we do not believe that the
circumstances of this case present any constitutional problem. . . . [W]e simply
cannot countenance a situation where a contemnor‟s insistence on continuing his
contumacious conduct inures to his benefit, and we surely do not believe that the
Constitution requires such a result. To the contrary, a valid order of civil contempt
does not become punitive simply because the contemnor persists in punishing

-- 7 of 12 --

8
Lundy contends “retroactive application of 18 U.S.C. § 1521 is required” since his
case “was not final when 18 U.S.C. § 1521 was enacted” and accordingly “[t]his Court
[s]hould [g]ive [f]ull [r]etroactive [e]ffect [t]o [him] under Teague v. Lane.” Below,
Lundy had argued “not only that the Court should vacate the Contempt Order, but that it
should allow [him] credit for „time served retroactively and coterminous from the date of
arrest in the within matter.‟” The District Court dismissed Lundy‟s reading of Teague to
require the retroactive application of new criminal statutes including 18 U.S.C. § 1521 as
“misguided” and “unpersuasive, to say the least.” Teague, the District Court reasoned,
instead “pertains to the retroactive application in collateral proceedings of newly
announced „watershed rules of criminal procedure.‟”
Teague involved the retroactive application, on collateral review of a conviction,
of a “new constitutional rule of criminal procedure” recognized after the conviction at
issue became final on direct appeal. Teague, 489 U.S. at 299. In Teague, a plurality of
the Supreme Court held that only new constitutional rules prohibiting the criminalization
of certain kinds of private conduct, or “watershed rules of criminal procedure” essential
to the reliable adjudication of criminal charges, could be applied retroactively. Id. at 311.
Here, by contrast, Lundy seeks the exclusive and retroactive application, on direct appeal
himself. We, therefore, hold that an order of civil contempt will only become
punitive if a contemnor is unable to comply with the order, or if the circumstances
indicate that a court is maintaining the contempt for an impermissible punitive
purpose.”
Harris, 582 F.3d at 519-20.

-- 8 of 12 --

9
from denial of a motion to vacate an order of civil contempt, of a federal statute
criminalizing certain conduct. Accordingly, Lundy does not seek the protection, on
collateral review of a conviction, of a judicially recognized rule “requiring observance of
those procedures that . . . are implicit in the concept of ordered liberty.” Beard v. Banks,
542 U.S. 406, 417, 124 S.Ct. 2504, 159 L.Ed.2d 494 (2004) (internal quotation marks and
citation omitted). We agree with the District Court that Teague is inapposite.
Furthermore, Lundy‟s argument presupposes that in circumstances in which
conduct covered by an order of civil contempt has been made criminal, the contumacious
conduct may no longer be subject to a court‟s civil contempt power, but must instead be
punished through a criminal prosecution. We reject the premise. According to Lundy,
because certain of his conduct has been criminalized by 18 U.S.C. § 1521, if he should
continue to engage in contumacious behavior he should be prosecuted under the criminal
statute, and the order of civil contempt must necessarily be dissolved “based upon a
violation of the due process standards applicable to criminal contempt proceedings under
18 U.S.C. [§] 1521.” But the mere availability of criminal sanctions for certain conduct
does not restrict a court‟s authority to hold a person in civil contempt for the same
conduct. Cf. Taberer v. Armstrong World Indus., Inc., 954 F.2d 888, 896 (3d Cir. 1992)
(describing “well-established practice of imposing both civil and criminal contempt for
the same conduct”); United States v. Petito, 671 F.2d 68, 72 (2d Cir. 1982). Indeed,
“[w]hen a party refuses to obey a court order … civil sanctions may be used to coerce

-- 9 of 12 --

10
compliance and criminal sanctions to punish the disobedient conduct.” Taberer, 954
F.2d at 896.
Instead, a court‟s authority to hold a person in civil contempt turns largely on the
purpose of the contempt order. “There are two types of contempt, civil and criminal, and
it is not always easy to distinguish between them: as the Supreme Court has observed,
the distinction is „somewhat elusive.‟” United States v. Harris, 582 F.3d 512 (3d Cir.
2009) (quoting Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 830,
114 S.Ct. 2552, 129 L.Ed.2d 642 (1994)). “[T]he key distinction between civil and
criminal contempt lies in the court‟s purpose. Civil contempt sanctions are intended to
coerce or to compensate; criminal contempt sanctions to punish.” Taberer, 954 F.2d 888
at 896. Civil contempt sanctions may be imposed without affording the accused
contemnor the kinds of procedural protections associated with due process in the criminal
context. “Rather, civil contempt is imposed by the judge upon a finding that one has
failed to comply with a valid court order. . . .” Harris, 582 F.3d at 515; see also Shillitani
v. United States, 384 U.S. 364, 371 (“The conditional nature of the imprisonment—based
entirely upon the contemnor‟s continued defiance—justifies holding civil contempt
proceedings absent the safeguards of indictment and jury . . . .” (citation omitted)). “A
person subject to criminal contempt is entitled to greater procedural protections than a
person subject to civil contempt: most importantly, the purported contemnor has a right to
trial by jury.” Harris, 582 F.3d at 515.

-- 10 of 12 --

11
We agree with the District Court that the contempt order was designed to coerce,
not punish. “The paradigmatic coercive, civil contempt sanction . . . involves confining a
contemnor indefinitely until he complies with an affirmative command . . . . [T]he
contemnor is able to purge the contempt and obtain his release by committing an
affirmative act, and thus „carries the keys of his prison in his own pocket.‟” Int’l Union,
United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 828, S.Ct. 2552, 129 L.Ed.2d 642
(1994); see also Roe v. Operation Rescue, 919 F.2d 857, 868 (3d Cir. 1990) (“[T]he
contempt proceeding is civil if the defendant stands committed unless and until he
performs the affirmative act required by the court‟s order.” (internal quotation marks and
citation omitted)). The contempt order makes clear that the purpose of imposing the
sanction of imprisonment was to induce compliance with the court‟s order of August 27,
2003, not to punish Lundy for refusing to abide by the prior order. The order stated that
incarceration “shall cease immediately” upon Lundy “purg[ing] himself of his contempt .
. . .” “[U]nder the terms of the Contempt Order, [Lundy] is to be confined until, and only
until, he withdraws his fraudulent mailings and renounces his intent to mail such
documents to specified individuals in the future.” Lundy, an imprisoned contemnor
competent to understand and capable of complying with the contempt order, “carries the
keys of his prison in his own pocket.” Operation Rescue, 919 F.2d at 868 (internal
quotation marks and citation omitted).5
5 Furthermore, “recognize[ing] that the upshot of Mr. Lundy‟s active contumacy is that
he has yet to begin serving his 120-month sentence, because that sentence is to be served

-- 11 of 12 --

12
III.
The District Court did not abuse its discretion in refusing to vacate the order of
civil contempt and finding that Lundy‟s incarceration should continue. For the foregoing
reasons, we will affirm the District Court‟s denial of Lundy‟s application to vacate the
contempt order.
consecutive to his civil contempt confinement,” the District Court took care to evaluate
whether there are adequate substitutes for the contempt order “that would achieve the
same purpose while enabling Mr. Lundy to serve the sentence imposed for the crimes for
which he was convicted . . . .” Among other things, the Court considered whether the
order should be vacated because the government could now determine whether or not to
prosecute Lundy‟s conduct under 18 U.S.C. § 1521. The Court noted that the scope of §
1521 and the Court‟s August, 27, 2003, order are not coterminous. The former prohibits
only the filing of false lien claims against U.S. employees; the latter prohibits a broader
range of conduct including the sending of written communications purporting to state a
contract regarding any civil or commercial matter or from creating affidavits of debt or
UCC Financing Statements based on them. Additionally, the Court‟s order identifies a
broader recipient class to which Lundy was enjoined from sending such communications
than § 1521, which includes only U.S. employees. Finally, the Court concluded the
prospect of prosecution under § 1521 was not a sufficient alternative because “[e]ven if
Mr. Lundy were to be prosecuted under section 1521, it would be a considerable amount
of time before such a prosecution could be completed, whereas the Contempt Order is
already in place,” and the results of such prosecutions are uncertain.

-- 12 of 12 --