DiGiambattisa v. McGovern

Related Cases

USCA1 Opinion




September 4, 1992 [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT







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No. 92-1168



C.D. DI GIAMBATTISA,
Plaintiff, Appellant,

v.

SHEILA E. MCGOVERN, ET AL.,
Defendants, Appellees.

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APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. A. David Mazzone, U.S. District Judge]
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Before

Breyer, Chief Judge,
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Campbell, Senior Circuit Judge,
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and Cyr, Circuit Judge.
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C.D. Di Giambattisa on brief pro se.
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Scott Harshbarger, Attorney General and Michelle A.
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Kaczynski, Assistant Attorney General, on brief for appellees.
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Per Curiam. This appeal has its origin in a matter
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litigated several years ago in the Middlesex Probate Court in

Massachusetts. The appellant, C.D. Di Giambattista, was the

trustee of a revocable trust established under the laws of

Massachusetts. The amended complaint contains only a sparse

description of the state court proceedings, but it appears

that the beneficiaries of the trust, all Mr. Di

Giambattista's siblings, sued in the Probate Court to remove

Mr. Di Giambattista as trustee and as executor of the

settlor's estate. The proceedings were rancorous, and at one

time or another involved four judges of the Probate Court:

appellees McGovern, Sullivan, Leahy and Highgas. The

beneficiaries were represented by Richard Liebman, who is

also an appellee here.

In 1986 the Probate Court removed Mr. Di Giambattista as

trustee and executor. The Massachusetts Appeals Court

affirmed the judgment in June 1991. By then, Mr. Di

Giambattista had already filed this lawsuit in the United

States District Court for the District of Massachusetts. He

named Judges McGovern, Sullivan, Leahy and Highgas, and

attorney Liebman, as defendants, and claimed that they had

violated the Racketeer Influenced and Corrupt Organizations

Act (RICO), 18 U.S.C. 1961 et seq., by conducting the

affairs of the Middlesex Probate Court through a "pattern of





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racketeering activity." At length, the district court

dismissed the complaint. This appeal followed. We affirm.

The Judicial Defendants
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The district court dismissed the claims against Judges

McGovern, Sullivan, Leahy and Highgas because each enjoyed

absolute judicial immunity for the acts he or she is alleged

to have committed. The doctrine of judicial immunity

protects judges from "civil liability for any normal and

routine judicial act." Cok v. Cosentino, 876 F.2d 1, 2 (1st
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Cir. 1989) (per curiam) (citing Stump v. Sparkman, 435 U.S.
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349, 356-57 (1978)). "Only judicial actions taken in the

clear absence of all jurisdiction will deprive a judge of

absolute immunity." Id. (citing Stump, 435 U.S. at 357).
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Mr. Di Giambattista's principal contention on appeal is

that Congress, in enacting the RICO statute, abrogated the

traditional rule of judicial immunity. He supports his

argument by citing cases in which courts have said that

judges may be held criminally liable for violating RICO.

See, e.g., United States v. Forsythe, 560 F.2d 1127 (3d Cir.
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1977); United States v. Vignola, 464 F.Supp. 1091 (E.D.Pa.
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1979).

Federal courts "have proceeded on the assumption that

common-law principles of legislative and judicial immunity

were incorporated into our judicial system and that they

should not be abrogated absent clear legislative intent to do



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so." Pulliam v. Allen, 466 U.S. 522, 529 (1984). Under the
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common law, judges are generally immune from civil liability

for judicial acts, subject to the conditions described above,

but they do not enjoy immunity from criminal liability. See
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O'Shea v. Littleton, 414 U.S. 488, 503 (1974). Thus, the
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fact that judges have been held criminally liable for
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violating RICO in no way suggests that Congress intended to

give civil RICO plaintiffs a remedy not available to those
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who sue judges under the common law. And, as we see no other

indication of Congressional intent, we decline to deprive

these judges of the immunity to which they are generally

entitled by settled legal principles.

Mr. Di Giambattista also contends that the judges here

should not be protected by immunity because they acted in

"the clear absence of all jurisdiction." The "scope of . . .

jurisdiction must be construed broadly where the issue is the

immunity of the judge," Stump v. Sparkman, 435 U.S. at 356,
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and a judge will doff the cloak of immunity only when he

conducts proceedings over which he lacks any semblance of

subject-matter jurisdiction. Thus, in a classic example

offered by the Supreme Court 120 years ago, "if a probate

court, invested only with authority over wills and the

settlement of estates of deceased persons, should proceed to

try parties for [criminal] offenses, jurisdiction over the

subject of offenses being entirely wanting in the court, and



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this being necessarily known to its judge, his commission

would afford no protection to him in the exercise of the

usurped authority." Bradley v. Fisher, 80 U.S. 335, 352
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(1872). On the other hand, if a judge in a criminal court
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convicts a defendant of even a non-existent crime, he

maintains his immunity, because "where jurisdiction over the

subject-matter is invested by law in the judge, or in the

court which he holds, the manner and extent in which the

jurisdiction shall be exercised are generally as much

questions for his determination as any other questions

involved in the case . . . ." Id.
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None of the acts identified by Mr. Di Giambattista was

actionably extra-jurisdictional according to this standard.

Massachusetts probate courts have general equity

jurisdiction, M.G.L. c. 215 6, and the removal of a trustee

or executor is an exercise of such equity jurisdiction. See,
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e.g., Gorman v. Stein, 1 Mass. App. Ct. 244 (1973). Thus,
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Judge Sullivan's rulings during the trial, whether or not

correct, fell within his purview as a probate judge, and even

Judge Highgas, though not the trial judge, did not act in the

"clear absence of all jurisdiction" by hearing motions and

issuing orders that affected the case, since "jurisdiction

over the subject-matter [was] invested by law . . . in the

court which he [held]." Bradley v. Fisher, 80 U.S. at 352.
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Nor were the orders issued by Judge Sullivan and Judge

Leahy after the entry of final judgment clearly beyond the

judges' jurisdiction. Although, as Mr. Di Giambattista

contends, the taking of an appeal after entry of final

judgment may "oust" the trial court of jurisdiction under

most circumstances, probate judges retain power to make post-

judgment rulings in equity cases because Massachusetts law

expressly provides that an appeal of an probate court's

equity decision "shall not suspend or stay proceedings under

such order or decree pending the appeal." M.G.L. c. 215,

23.

Similarly, Judge McGovern's order that Mr. Di

Giambattista produce additional trial transcripts before

proceeding with his appeal was not clearly beyond the bounds

of her jurisdiction as fixed by Massachusetts law. Probate

appeals are governed by the Massachusetts Rules of Appellate

Procedure. M.G.L. c. 215, 10. Mass. R. App. P. 8(b) gives

probate judges authority to require appellants to order

additional portions of the transcript in appropriate cases,

and this means that Judge McGovern, whether she acted rightly

or wrongly, did not act in the "clear absence of all

jurisdiction."

In sum, because the amended complaint failed to allege

any actionable conduct committed outside the defendants'

jurisdiction as probate judges, we conclude that the district



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court correctly dismissed the claims against appellees

McGovern, Sullivan, Leahy and Highgas.

Attorney Liebman
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Attorney Liebman was not protected by judicial immunity,

and the absence of a discussion of the viability of the

claims against him in the district court's opinion led Mr. Di

Giambattista to argue that "Liebman gets a free ride on

judicial immunity." However, notwithstanding the district

court's failure to justify independently its dismissal of the

RICO claims against Liebman, we find it appropriate to

affirm. A court of appeals "can affirm on any ground

presented by the record," Acha v. United States, 910 F.2d 28,
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30 (1st Cir. 1990), and our examination of the amended

complaint convinces us that Mr. Di Giambattista failed to

state a claim against Liebman upon which relief could have

been granted.

In order to make out a civil RICO claim, a plaintiff

must plead and prove that the defendant committed, or agreed

to commit, a "pattern of racketeering activity." 18 U.S.C.

1962(a), (b), (c) and (d). "Racketeering activity" is

defined precisely in 18 U.S.C. 1961(1) to mean (A) any act

involving murder, kidnaping, gambling, arson, robbery,

bribery, extortion, dealing in obscene matter or dealing in

controlled substances that is a felony under state law, and

(B) any one of several enumerated federal crimes. Mr. Di



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Giambattista says that Liebman committed predicate

racketeering acts of fraud, bribery, extortion and

obstruction of justice, but the facts alleged in his amended

complaint fail to bear out these conclusory charges.

Fraud - Mr. Di Giambattista alleged that Liebman
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committed four predicate acts of "fraud." However, while

mail fraud, 18 U.S.C. 1341, and wire fraud, 18 U.S.C.

1343, constitute "racketeering activity," common-law fraud

does not. Fleet Credit Corp. v. Sion, 893 F.2d 441, 445 (1st
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Cir. 1990).1 Only one of the four fraud allegations

contained any reference to the mails: it charged that Liebman

had interfered with the delivery of the mail by causing a
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postal employee to intercept a summons sent by Mr. Di

Giambattista, not that Liebman had used the mail in
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furtherance of a scheme to defraud. In statutory terms, Mr.

Di Giambattista has accused Liebman not of mail fraud in

violation of 18 U.S.C. 1341, but of obstructing the mail in

violation of 18 U.S.C. 1701 -- a federal crime, to be sure,

but not "racketeering activity."

Bribery - the three paragraphs in the amended complaint
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alleging bribery concerned statements that Liebman made in


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1. For this reason, Mr. Di Giambattista failed to charge
Judge Sullivan with committing a predicate crime when he
alleged that the judge had made a false declaration to a
federal district court in response to a civil rights
complaint that Mr. Di Giambattista had brought against him,
but failed to allege that the judge had accomplished this
"fraud" through use of the wires or mails.

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court to Judges Leahy and McGovern. None contained any

suggestion that Liebman gave, offered, or promised either

judge anything of value. All therefore failed to allege an

essential element of the crime of bribery as it is defined by

both state law, M.G.L. c. 268, 2(a) and 3(a), and federal

law, 18 U.S.C. 201(b).

Extortion - Mr. Di Giambattista identifies five
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paragraphs of his complaint as containing allegations of

extortion, but without exception these paragraphs recounted

demands which Liebman made during litigation. A threat to

sue, even if groundless and made in bad faith, may be

tortious under state law, but it is not extortion under

federal law, see I.S. Joseph Co. v. J. Lauritzen A/S, 751
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F.2d 265 (8th Cir. 1984), and we think the same distinction

should be made with respect to demands made in the course of,

or threats to continue or intensify, ongoing litigation.

Obstruction of Justice - Finally, the RICO statute
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identifies five "obstruction of justice" offenses as

predicate crimes: 18 U.S.C. 1503 (influencing officers or

jurors of United States courts); 18 U.S.C. 1510

(obstructing investigations of federal crimes); 18 U.S.C.

1511 (obstructing enforcement of state law with intent to

facilitate an illegal gambling business); 18 U.S.C. 1512

(tampering with a witness, victim or informant); and 18

U.S.C. 1513 (retaliating against a witness, victim or



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informant). None of the several instances of "obstruction"

alleged by Mr. Di Giambattista fit the definition of any of

those crimes.2

Having surveyed the amended complaint, and finding that

it failed to allege that Liebman committed, or agreed to

commit, even a single predicate racketeering act, we conclude
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that the district court properly dismissed the RICO claims

against Liebman as well.

Affirmed.
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2. Mr. Di Giambattista also alleged that Liebman committed
twenty-one predicate acts of "conspiracy." Conspiracy, in
and of itself, is not racketeering activity, although a
conspiracy to commit a "pattern of racketeering activity" is
a violation of the RICO statute. 18 U.S.C. 1962(d). We
assume that Mr. Di Giambattista meant to say in the
conspiracy allegations that Liebman had agreed to commit, or
perhaps aided and abetted the commission of, predicate acts
undertaken by others. But with few exceptions, the acts
"conspired to" were orders issued by the probate judges, none
of which, in our opinion, even remotely resembles
"racketeering activity" as the RICO statute defines that
term.

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