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September 4, 1992 [NOT FOR PUBLICATION]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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