11th Circuit, No. 88-8085 + 89-8085 - Attorney's Working Files - Rehearing en Banc

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IN THE UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT 

Nos. 88-8085 

89-8085 

  

WARREN McCLESKEY, 

Petitioner-Appellee, 

-against- 

WALTER D. ZANT, Superintendent, 
Georgia Diagnostic & Classification 
Center, 

Respondent-Appellant. 

  

On Appeal From The United States District Court 
For The Northern District Of Georgia 

Atlanta Division 

  

BRIEF FOR PETITIONER-APPELLEE WARREN McCLESKEY 

  

ROBERT H. STROUP 

141 Walton Street 
Atlanta, Georgia 30303 
(404) 522-8500 

JULIUS L. CHAMBERS 
JOHN CHARLES BOGER 

" 99 Hudson Street 
9 New York, New York 10013 

(212) 219-1900 

£ 

ATTORNEYS FOR PETITIONER-APPELLEE 
WARREN McCLESKEY 

 



  

CERTIFICATE OF INTERESTED PARTIES 

The parties interested in the outcome of this case are the 

petitioner-appellee, Warren McCleskey; the trial attorney, John 

Turner; the present attorneys for Mr. McCleskey, Robert H. 

Stroup, Julius L. Chambers, and John Charles Boger; respondent- 

appellant Walter D. Zant; the attorneys for respondent-appellant 

Zant, William B. Hill, Jr., Susan V. Boleyn, and Mary Beth 

Westmoreland; the trial judge, Hon. Sam McKenzie; and the 

District Court judge, Hon. J. Owen Forrester. The victim was 

Frank Schlatt. 

 



  

STATEMENT REGARDING ORAL ARGUMENT 

Petitioner-appellee McCleskey concurs in the request of 

respondent-appellant Walter Zant for oral argument in this case, 

though not in Warden Zant's reasons for seeking argument. Since 

Zant's appeal is, in essence, a multi-faceted attack on the 

factfindings of the District Court, and since the relevant 

factual record is quite large, including the trial transcript, 

the state habeas corpus transcript, the federal habeas corpus 

transcript, several depositions, and numerous exhibits, the Court 

may well be assisted by the opportunity to question counsel 

orally. 

fk 

 



  

TABLE OF CONTENTS 

Page 

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW....... PEPGI Peg 3 

x STATEMENT OF THE CASE. ss esvessseeeesee Pr PR NEP EN ERP FOP 2 

{i) Course Of Prior ProCeedingS... evince vioseoorioessveainiesg 2 

(ii) Statement Of FactsS...... Giants ane sisias ta aieeeinioneinnieieen 2 

TI. The State's Allegations Of Abuse Of The Writ..... 3 

A. The Defense Effort To Uncover Written Statements 4 

1. The Efforts Of Trial Counsel....... Pes onan 4 
2. "The Ffforts OF Habeas Counsel. cscs cvneone 7 

3. The Discovery Of Evans's Written Statement 9 

B. The Defense Effort To Locate Massiah Witnesses 10 

C. The: Findings ‘Of The District Court... s...... 13 

II. Mr. McCleskey's Claim Under Massiah v. United States 13 
  

A. Background Evidence On the Massiah Claim...... 14 

1. Offie Evans's Testimony At Trial.......... 14 
2. Evans's Testimony During State Habeas 

PYoCead ings. cence snore ssinioncesss os e © oo oo 16 

B. The Twenty-One Page Statement............ tiene 17 

C. The July 8-9, 1987 Federal Hearing........... . 19 

1. The Testimony Of Prosecutor Russell Parker 19 
2. The Testimony Of Police Officers Harris 

ANA JOWBT Ses von viveitinsvonioimens vies vinvs oie sns 20 
3. The Testimony Of Detective Sidney Dorsey.. 20 
4. The Testimony Of Ulysses Worthy........... 22 

. Be Of Lic EVANS. ss st vivic vs ss ns wid vrais om aie hades oe 25 

D. The August 10, 1987 Federal Hearing. .....e.... 25 

1. The Testimony Of Ulysses Worthy........... 25 
2. The Testimony Of Deputy Jailor Hamilton... 28 

E. The Findings OF The District Court....evessvsis 29 

III. The Harmless Error Issue...... tale sit ein tne seis nine nisin 30 

141 

 



  

IV. Warden Zant's Rule 60(D) Motion. ..eoe seers vnimeian 33 

A. The Issue Of Warden Zant's "Due Diligence"... 33 

: B. The Materiality Of Offie Evans's Testimony... 35 

C. ~The Findings Of The District Court... .. «vos 36 

(iii) Statement Of The Standard Of RevView......ceeeeeeesns 37 

SUMMARY OF ARGUMENT. veces vsvrsssrsrsvasesenes tise rain eniseinsne ‘oo 38 

ARGUMENT. sv ose esssisssssissrsevesesssnes sess sian ave reer 42 

I. MR. McCLESKEY DID NOT ABUSE THE WRIT OF HABEAS 

CORPUS BY FAILING TO UNCOVER THE MISCONDUCT OF 
ATLANTA POLICE OFFICERS WHICH CAME TO LIGHT 
ONLY IN 1987 ce cssseecereonnessecoces “ins wiwiv a ote vinnie 42 

A. Warden Zant's Claim Of Deliberate Abandonment... 44 

B. Warden Zant's Suggestions Of Inexcusable Neglect. 48 

IY. THE DISTRICT COURT PROPERLY FOUND THAT ATLANTA 

POLICE MISCONDUCT VIOLATED WARREN McCLESKEY'S SIXTH 
AMENDMENT RIGHTS UNDER MASSIAH V. UNITED STATES.. 53 
  

A. The District Court's Factual Findings Were Not 
Clearly Frroneocus Under Rule 52..cevsvessnone 53 

B. The District Court Applied The Proper Legal 
Standards To The FACES. cen es eroinnssvnresrensis 60 

III. THE DISTRICT COURT CORRECTLY FOUND THAT THE 
MASSIAH VIOLATION PROVEN IN MR. McCLESKEY' CASE 
WAS NOT HARMLESS BEYOND A REASONABLE DOUBT....... 63 

IV. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION 
BY DENYING WARDEN ZANT'S RULE 60(b) MOTION FOR 

: RELIEF FROM JUDGMENT. conv nsnnssnnoninsnssoses soe 68 

A. Zant Failed To Show That The Evidence 
- Is "Newly Discovered"..... Wisis a ae simian eine 68 

B. Zant Failed To Exercise "Due Diligence".. 68 

C. There Is No Likelihooé That The Proffered 
Evidence Would Produce A Different Result 70 

CONCLUSION: vc ceeeseecsccensns vis env ov siniaie bina nw sinieie nine eaves bee 72 

iv 

 



  

TABLE OF AUTHORITIES 
Page 

Cases: 

*Amadeo v. Zant, U.s8. , 100 L.E4d.2d 
249 (1988) eons eenasee Cie eit a sas ae ele steieinde . vie vee 38,42,43,44 

*Anderson v. City of Bessemer City, 470 U.S. 
BOA (ADB) ce dibs ioe vs i ae aia ami 38,39,43.54 

Booker v. Wainwright, 764 F.2d 1371 (11th cir. 1985) ... 45,48 

Brady v. Marviand, 373 U.S. 83 (1963) eves eervis sinew einen 4 

Brown v. Dugger, 831 F.2d 1847 (11th Cir, 1987) «..eieven 66 

Chapman v. California, 386 U.S8.:18 (19687) sce sneesssses % 65 

Fay v Nola, 372. U.8. 301 (1063) uv. viii i tiianis esis stim sn vin 45,46 

Freeman v. State of Georgia, 599 F.2d 65 (5th Cir. 1979) 44 

Giglio v. United States, 405 U.S. 150 (1972) .c..... 41,63,64,65 

Haley v. Estelle, 632 F.2d 1273 (5th Cir. 1980) «ccveven 48 

#¥Johnson Vv. Zerbslt, 304 U.S. 458 (1938) © ouisivecoicinnearie 46 

Kuhlmann v. Wilson, 477 U.S. 438 (1986) veeevonsssessnes 62 

Lightbourne v. Dugger, 829 F.2d 1012 (11th cir. 1987) .. 61 

Maine v. Moulton, 474 U.S. 189 (1988) cue ecevoedeseinsos PE 62 

*Massiah v. United States, 377 U.S. 201 (1964) ...cecee. passim 

McCleskey v. State, 245 Ga. 108, 263 S.E.2d 146 (1980) . 6 

Moore v. Kemp, 824 F.2d 847 (l1lith Cir. 1987) ..eeeveces. 47,48 

Murray v. Carrier, 477 U.S. 478. (1986) .ccvevsevanvesses. 44 

Napper v. Georgia Television Co., 257 Ga. 156, 356 S.E.2d 
BAD (LOST oy imi des wien ne vie es hes ea 9 

Paprskar v. Estelle, 612: F.24 1003 (5th Cir. 1980) ..... 47 

Potts v. Zant, 638 F.2d 727 (5th Cir. Unit B 1981) .. 40,45,46,47 

‘Price v. Johnston, 334 U.S. 266 (1948) ceeenesocnn Serves 40,46 

 



  

Ross v. Kemp, 785 F.2d 1467 (11th Clr. 1986) csv vs verve 

Sanders v. United States, 373 U.S. 1 (1963) ..... 40,44, 

*Satterwhite v. Texas, U.S. ,. 3100 L.Fd.24 
284 (TOBBY vie eve naien Cie ei eiete oles cite ve stan inom 

*Scutieri v. Paige, 808 F.2d 785 (llth Cir. 1987 ...cev+ 

Sockwell v. Maggio, 709 F.2d 341 (Bth Cir. 1983) .vevesns 

United States v. Anderson, 574 F.2d 1347 (5th Cir. 1978) 

*United States v. Henry, 447 U.S. 264 (19BOY sven nevnans 

Walker v. Lockhart, 763 F.2d 942 (8th Cir. 1985) 'vevees 

  

Wong Doo v. United States, 265 U.S. 239 (1924) ......... 

Statutes: 

28 UeS iC § 228% oo cinin viv visio eteivieitini env evimes sininies sieisioe seis 

BB UNSC. iB 228T ov vit noo nvivie asinine ainie siv vi eiohe vie vie sino sein. oiesee 

Rules: 

44 

45,47,48 

41,64,66 

42,68 

vii 

Pulse "52, Ped. BR. Civ. Po sieves onsennssmensnssnsssner 1,38,42,54 

Rule 60(D), Fed. B. CiV. P. fu. tev: veirodsissens.32,33,35,37,68, 

Rule 9(b), Rules Governing Section 2254 CasS€S..:ceceeoes 

Other Authorities: 
  

O.C.C.A. § 50~18-72(a) +.e... sas wein ne sisiseeieis vies sind eis ene 

Restatement of the law, 24, AdEenNncyY, § 16 ...cevvnveennns 
  

vi 

69,70,71 

37,42 

 



  

STATEMENT OF JURISDICTION 

This is a habeas corpus case filed under 28 U.S.C. § 2241. 

It has been appealed to this Court under 28 U.S.C. § 2253. 

vii 

 



  

IN THE UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT 

Nos. 88-8085 

89-8085 

  

WARREN McCLESKEY, 

Petitioner-Appellee, 

-against- 

WALTER D. ZANT, Superintendent, 
Georgia Diagnostic & Classification 
Center, 

Respondent-Appellant. 

  

On Appeal From The United States District Court 
For The Northern District Of Georgia 

Atlanta Division 

  

BRIEF FOR PETITIONER-APPELLEE WARREN McCLESKEY 

  

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW 
  

1. Are the District Court's factual findings (i) that Mr. 

McCleskey did not deliberately abandon his constitutional claim 

under Massiah v. United States, 377 U.S. 201 (1964), (ii) that 
  

his failure to have uncovered evidence of the Massiah violation 

earlier was not a result of "inexcusable neglect," and (iii) that 

he did not otherwise abuse the writ, clearly erroneous under Rule 

527 

2. Are the District Court's factual findings concerning Mr. 

McCleskey's Massiah «claim, (i) that Atlanta police officers 

arranged to have an informant moved into an adjacent cell, (ii) 

that they instructed the informant to question McCleskey 

surreptitiously, and (iii) that the informant actively 

 



  

interrogated McCleskey on behalf of the police, clearly 

erroneous? 

3. Do the facts found by the District Court establish a 

violation of Mr. McCleskey's Sixth Amendment rights under Massiah 

v. United States and United States v. Henry, 447 U.S. 264 (1980)? 
    

4. On the present factual record, did the District Court 

err in concluding that the Massiah violation was not harmless 

beyond a reasonable doubt? 

5. When a respondent, here Warden Walter Zant, moves to 

reopen a final judgment under Rule 60(b) in order to submit 

evidence that is not "newly discovered," when his own submissions 

demonstrate that he has exercised no diligence in obtaining that 

evidence earlier, and when the District Court has entered factual 

findings that the proffered evidence would not likely affect the 

judgment, is it an abuse of discretion for the District Court to 

deny motion? 

STATEMENT OF THE CASE 
  

(i) Course of Prior Proceedings 
  

Mr. McCleskey accepts the general description of the prior 

proceedings set forth by Warden Zant. 

(ii) Statement of Facts 
  

Four legal issues are presented by this appeal: (i) possible 

abuse of the writ; (ii) the merits of Mr. McCleskey's Massiah 

claim; (iii) whether the Massiah violation was harmless beyond a 

reasonable doubt; and (iv) whether the District Court properly 

 



  

denied Warden Zant's motion to reopen the judgment under Rule 

60 (b) . 

Warden Zant's primary contention is that the principal 

factfindings of the District Court were clearly erroneous on each 

issue. To evaluate Zant's contentions, an extensive review of 

the facts is necessary. Our statement will address: (i) the 

circumstances under which the present Massiah claim first came to 

the attention of Mr. McCleskey's counsel; (ii) the evidence of 

the Massiah violation; (iii) a description of the evidence 

presented to Mr. McCleskey's 1978 jury on the murder charge; and 

(iv) the circumstances surrounding Warden Zant's motion to reopen 

the District Court's judgment in 1988. 

I. The State's Allegations Of Abuse Of The Writ 
  

At the heart of the Massiah claim presented by Mr. McCleskey 

in his second federal petition, the District Court noted (R3-22- 

15, 19), are two items of evidence: the testimony of jailor 

Ulysses Worthy, "who was captain of the day watch at the Fulton 

County Jail during the summer of 1978 when petitioner was being 

held there awaiting his trial. . . ." (R3-22-15); and a 21l-page 

typewritten statement by Offie Evans =-- an informant and chief 

witness against Mr. McCleskey =-- given to State authorities on 

August 1, 1978. (See R1-1, Exhibit E; Fed. Exh. 8). 1 To resolve 

  

1 Fach reference to an exhibit admitted into evidence by 
the District Court during the July and August, 1987 federal 
hearings will be indicated by the abbreviation "Fed. Exh." 
followed by the exhibit number and, where relevant, the page 
number of the exhibit. 

 



  

the issue of abuse of the writ, this Court must review when, and 

under what circumstances, those two items came to the attention 

of Mr. McCleskey's counsel. 

A. The Defense Effort To Uncover Written Statements 
  

1. The Efforts of Trial Counsel 
  

Prior to Mr. McCleskey's trial in 1978, Assistant 

District Attorney Russell Parker provided McCleskey's trial 

attorney, John Turner, with access to most of his file (Fed. Exh. 

3, 4-8) =-- except for certain grand jury minutes and, unknown tc 

Turner, the 2l1-page statement by Offie Evans at issue here (which 

contained numerous verbatim statements and admissions ostensibly 

made by Mr. McCleskey to Evans while both were incarcerated in 

the Fulton County Jail in July of 1978.) 

To assure himself that he had obtained all relevant 

evidence, defense attorney Turner filed one or more pretrial 

motions under Brady v. Maryland, 373 U.S. 83 (1963), seeking all 
  

written or oral statements made by Mr. McCleskey to anyone, and 

all exculpatory evidence. ? 

After conducting an in camera review, the trial court denied 
  

  

2 Although the District Court held that the copies of 
Turner's Brady motions proffered in Mr. McCleskey's federal 
petition (see R1l-1, Exhibit M) had not been properly 
authenticated, (R4- 73-81), Warden Zant conceded, and the 
District Court found, "that a request was made for statements, 
which is necessarily implied from the action of the trial 
court.” (id. 78). Later during the federal hearing, copies of 
Turner's Brady motions, which had been signed and received by the 
District Attorney, were discovered in the District Attorney's 
files. Warden Zant stipulated to these facts at the August 10th 
federal hearing. (R6-118). 

 



  

Mr. Turner's motion, holding without elaboration that any 

evidence withheld by prosecutor Parker was "not now subject to 

discovery." {FPad. Ex. 5). The trial court's order contained 

absolutely nothing to indicate that among the evidence withheld 

was any written statement by Offie Evans. In fact, prosecutor 

Parker later acknowledged that he never informed Turner about 

the nature or content of the items submitted to the trial court 

for in camera inspection. (Fed. Ex. 3, 15).3 
  

At trial, during the State's cross-examination of Mr. 

McCleskey, defense counsel Turner once again sought to determine 

whether any statements implicating his client had been obtained 

by the State: 

MR. TURNER: Your Honor, I: think that from the 
direction of things from what Mr. Parker is saying it 
appears that he must have some other statements from the. 
defendant. I asked for all written and oral statements in 
my pre-trial motions. If he has something he hasn't 
furnished me, I would object to getting into it now. 

THE COURT: Well, he has a statement that was furnished 
to the Court but it doesn't help your client. 

MR. TURNER: I am not dealing with that part of it. I 
am saying I asked him -- 

MR. PARKER: It's not exculpatory. 

THE COURT: You are not even entitled to this one. 

MR. TURNER: I am entitled to all statements he made. 

That is what the motion was filed about. 

  

3 In a deposition taken by Mr. McCleskey's counsel during 
state habeas proceedings, prosecutor Parker testified as follows: 
"[Tlhe morning of the trial, as I recall, John Turner ot iii 
wanted to know what the matters were at that time that the judge 
had made an in camera inspection of. Of course, I told him I 
couldn't tell him; no sense in having an in camera inspection if 
I was going to do that." (Fed. Exh. 3, at 15). 

5 

 



  

THE COURT: This is not a statement of the defendant. 

MR. TURNER: We are not talking about a statement of 
the defendant. 

THE COURT: I don't know that we are talking about any 
written statement. 
  

  

MR. TURNER: I am saying I filed for oral and written 
statements. I asked for all statements of the defendant. 

THE COURT: Let the record show I wrote you and made it 
of record. It is not admissible and what he is doing is in 
the Court's opinion proper. 

(R1-1, Exhibit O, 830-832; see Fed. Ex. 6) (emphasis added)). 

The trial court thus not only denied this second defense 

request; it affirmatively, and inexplicably, stated, "I don't 

know that we are talking about any written statement," (id. 831), 

suggesting that no written statement existed at all. 

On appeal to the Supreme Court of Georgia, Turner contended 

that the State's refusal at trial to turn over Mr. McCleskey's 

statements, contained in what Turner plainly believed to have 

been an oral statement by Offie Evans to police, had violated Mr. 

McCleskey's rights. The Georgia Supreme Court denied the claim 

and upheld the State's position, explicitly stating in its 

opinion that "[t]lhe evidence [the defense counsel] sought to 

inspect was introduced to the jury in its entirety." McCleskey Vv. 
    

State, 245 Ga. 108, 263 S.E.2d 146, 150 (1980) (emphasis added). 

Thus, trial counsel, although unaware of the 21-page 

typewritten statement of Offie Evans, made at least three 

separate attempts to obtain all relevant statements from the 

State: not only were all denied, but the trial court and the 

 



  

Georgia Supreme Court implied that no written statement existed 

or that, if one did, it was introduced to. the Jury in its 

entirety. As John Turner testified during state habeas 

proceedings, "I was never given any indication that such a 

statement existed." (St. Hab. Tr. 77). 

2. The Efforts Of Habeas Counsel 
  

Mr. McCleskey's present counsel, Robert Stroup, testified 

that, from his review of the trial and appellate proceedings, he 

drew the inference that no written statement of Offie Evans 

existed, but only an "oral statement ... introduced in its 

entirety through Evans' testimony at trial." (R1-7-2; Fed. Exh. 

1; see also id., at 8; R4-45). Nevertheless, Mr. Stroup sought 
  

to review again the prosecutor's investigative file. During the 

prosecutor's deposition, he obtained an agreement for production 

of "the entire file" made available to defense counsel (Fed. Exh. 

3, 4-6), unaware that any written document had been withheld from 

trial counsel. (R1-7- 8-9). 

Subsequently the Assistant Attorney General handling the 

case mailed to Mr. Stroup and the court reporter a large number 

of documents, reciting in his transmittal letter that he was 

"lfelnclos{ingl ... a complete copy of the prosecutor's file 
  

resulting from the criminal prosecution of Warren McCleskey in 

Fulton County." (Fed. Exh. 7) (emphasis added). The 21l1l-page 

written statement of Offie Evans was not included. (R1-7-3; Fed. 

Ew. 2). Relying on that representation, Mr. Stroup has since 

testified, it did not occur to him that any written statement 

 



  

existed. (R1-7-10). 

Prosecutor Parker did make one oblique reference to such an 

item during his state habeas deposition. The exchange in 

question began with a question by Mr. Stroup, obviously premised 

on the assumption that Evans had given police only an oral 

statement: "Okay. Now, I want to direct your attention to a 

statement from Offie Evans that was introduced at Warren 

McCleskey's trial." (Pet, Bx. 3, at 8). The prosecutor 

responded, "Okay. When you referred to a statement, Offie Evans 

gave his statement but it was not introduced at the trial. It 

was part of that matter that was made in camera inspection by the 

Judge prior to trial." (Id.) Mr. Stroup immediately replied. 

"All right. Let me make clear what my question was, then. Offie 

Evans did in fact give testimony at the trial -- let me rephrase 

it. When did you learn that Offie Evans had testimony that you 

might want to use at trial?" (Id.) 

Mr. Stroup has subsequently averred that 

Parker's comment, at page 8 of the deposition, ... was 
not directly responsive to my question, and I thought 
he misunderstood my question. I do not believe I 
actually understood what he said in response to my 
question, and I rephrased the question to make certain 
that he understood me. When the deposition transcript 
became available to me for review, I already had 
[Assistant Attorney General] Nick Dumich's letter 
reflecting his understanding that what we were dealing 
with was a complete copy of the prosecutor's file. It 
never occurred to me at this stage in the proceedings 
that there was a written statement from Offie Evans 
that the State had not produced. 

(R1-7, 9-10). 

After reviewing the sequence of events, the District Court 

 



  

found: 

The statement was clearly important. It arguably has 
favorable information. It wasn't turned over. I don't 
think that there's anything -- the only thing frankly 
that clearly indicates that Mr. Stroup should have 
known there was a statement is Russ Parker's one 
comment in the habeas, and it is clear to me that Mr. 
Stroup didn't understand what was told him. 

The question gets to be maybe in a rereading of the 
deposition maybe he should have seen it or that sort, 
but I don't think that it would be proper to let this 
case go forward with such suggestions [as] ... are 
raised by that statement ... So I will allow the 
statement to be admitted into evidence on the merits. 

(Rl, 118-19). In its subsequent written order, the District 

Court explicitly reaffirmed that "petitioner's counsel's failure 

to discover Evans' written statement was not inexcusable 

neglect." (R3-22-25). 

3. The Discovery Of Evans's Written Statement 
  

Offie Evans's 2l1l-page statement first came to light in June 

of 1987, following a fortuitous development on May 6, 1987, in 

an unrelated Georgia case, Napper v. Georgia Television Co., 257 
  

Ga. 156, 356 S.E.2d 640 (1987), which appeared to hold, for the 

first time, that police investigative files would be deemed 

within the compass of the Georgia Open Records Act, 0.C.G.A. § 

50-18-72 (a). Mr. Stroup immediately cited that then-recent 

decision, still pending before the Georgia Supreme Court on 

rehearing, in support of a request to the ‘Atlanta Bureau of 

Police Services for the police files in McCleskey's case. (R1-7- 

8), Because of the pending rehearing, attorneys for the Atlanta 

Bureau were reluctant to disclose the police file, but on June 

 



  

10, 1987, they agreed to provide Mr. Stroup with one document-- 

which proved to be the 21-page statement made by Offie Evans. 

(R1-7-7). Mr. McCleskey subsequently made that document the 

centerpiece of the Massiah claim included in his second federal 

petition. (See R1-9 & Exh. E). 

B. The Defense Effort To locate Massiah Witnesses 
  

Mr. Stroup has acknowledged that, at the outset of Mr. 

McCleskey's initial state habeas proceedings, he had an 

unverified suspicion tat Offie Evans may have been a police 

informant. (R4-31). Although Stroup lacked hard evidence to 

support his suspicion, in an abundance of caution, he pled a 

Massiah v. United States claim in an amendment to Mr. McCleskey's 
  

initial state habeas petition. (R4-36). 

Mr. Stroup followed up his suspicions with extensive 

investigations during state habeas corpus proceedings. He first 

spoke with certain "Atlanta Bureau of Police Services officers" 

who had been his clients in earlier Title VII litigation, and 

obtained information from them on how best to pursue the 

prospect of an informant relationship. (R4- 31-32) Following 

their lead, Stroup spoke with "two people [at the Fulton County 

Jail] who were specifically identified to me as people who might 

have information." (R4-33).% These jailors, however, proved to 

  

4 Stroup elaborated his understanding that he "was 
speaking to people at Fulton County Jail who were directly 
involved with Offie Gene Evans. . . There was a gentleman named 
Bobby Edwards who by that time had left the Fulton County 
Sheriff's Department . . . He had by that time moved to Helen, 
Georgia or thereabouts . . . and I was able to find him through a 

10 

 



  

have no information "regarding how Evans came to be assigned to 

the jail cell that he was assigned to or of any conversations 

with the . . . detectives regarding Offie Evans' assignment to 

that jail cell." (R4-33). 

Mr. Stroup did not conclude his investigation with these 

jailor interviews. Instead, he specifically sought to uncover 

evidence of a Massiah violation during the deposition of 

prosecutor Parker. Mr. Stroup twice asked Parker about 

relationships between Offie Evans and the State: 

Q. [Mr. Stroup]: Okay. Were you aware at the time of 
the trial of any understandings between Evans and any 
Atlanta police department detectives regarding 
favorable recommendation [sic] to be made on his 
federal escape charge if he would cooperate with this 
matter? 

A. [Mr. Parker]: No, sir. 

Q. Let me ask the question another way to make sure we 
are clear. Are you today aware of any understanding 
between any Atlanta police department detectives and 
Offie Evans? 

A. No, sir, I'm not aware of any. 

(Fed. Exh. 3, 9-10).° 

On cross-examination, prosecutor Parker broadened his 

testimony: 

Q. Do you have any knowledge that Mr. Evans was 
working as an informant for the Atlanta Police or any 
police authorities when he was placed in the Fulton 

  

realtor who I know up in that area." (R4- 48-49). 

5 Warden Zant clearly overlooked these questions when he 
asserted that "the only question asked of Mr. Parker relating to 
any type of Massiah claim was asked by the assistant attorney 
general and Mr. Stroup simply failed to ask any questions 
whatsoever concerning this issue." (Resp. Br. 31). 

11 

 



  

County Jail and when he overheard these conversations 
of Mr. McCleskey? 

A. I don't know of any instance that Offie Evans had 
worked for the Atlanta Police Department as an 
informant prior to his overhearing conversations at the 
Fulton County Jail. 

(Fed. Exh. 3, 14-15). On redirect examination, Mr. Stroup once 

again sought, without success, information from Parker on 

possible deals with, or promises made to, Offie Evans. (See Fed. 

Exh. 3, 18-20). 

Mr. Stroup subsequently explained that he did not carry Mr. 

McCleskey's Massiah claim forward into his initial federal 

petition, because he had been unable factually to substantiate 

it during state habeas proceedings: 

... I looked at what we had been able to develop in 
support of the claim factually in the state habeas 
proceeding and made the judgment that we didn't have 
the facts to support the claim and, therefore, did not 
bring it into federal court. 

(R4- 44). 

As indicated above, when Mr. McCleskey filed his second 

federal petition, he relied primarily upon Offie Evans's 21l-page 

statement to support his Massiah claim. (see R1-1, 7-13). 

Petitioner had not yet discovered Ulysses Worthy, who had 

retired from the Fulton County Jail in 1979, and whose appearance 

on: July 9, 1987, during the federal hearings, was the 

serendipitous result of a massive, indiscriminate effort during 

to subpoena everyone whose name was mentioned in any document 

uncovered by counsel during the July 8-9th federal hearings. (R4- 

21). 

12 

 



  

C. The Findings Of The District Court 
  

After receiving the documentary evidence and hearing live 

testimony from Robert Stroup, Russell Parker, and the Atlanta 

detectives, the District Court made comprehensive findings on the 

issue of abuse, excerpted as follows: 

Although petitioner did raise a Massiah claim in his 
first state petition, that claim was dropped because it 
was obvious that it could not succeed given the then- 
known facts. At the time of his first federal 
petition, petitioner was unaware of Evans' written 
statement. . . This is not a case where petitioner has 
reserved his proof or deliberately withheld his claim 
for a second petition. . . . Here, petitioner did not 
have Evans' statement or Worthy's testimony at the time 
of his first federal petition; there is therefore no 
inexcusable neglect unless "reasonably competent 
counsel" would have discovered the evidence prior to 
the first federal petition. This court [has] concluded 
. «. « that counsel's failure to discover Evans' written 
statement was not inexcusable neglect. [R4-118-119]. 
The same is true of counsel's failure to discover 
Worthy's testimony. . . [Clounsel did conduct an 
investigation of a possible Massiah claim prior to the 
first federal petition, including interviewing "two or 
three jailers." . . . The state has made no showing of 
any reason that petitioner or his counsel should have 
known to interview Worthy specifically with regard to 
the Massiah claim. 

(R3-22- 24-25). 

II. Mr. McCleskey's Claim Under Massiah v. United States 
  

Mr. McCleskey's constitutional claim under Massiah and Henry 

is straightforward: that Offie Gene Evans, one of the principal 

witnesses employed by the State at McCleskey's 1978 trial, "was 

acting on behalf of the State as an informant in the Fulton 

County Jail" when he secured a series of post-indictment 

admissions from Mr. McCleskey (R1-1-7), and that the State's use 

of Evans's testimony, detailing those admissions, against Mr. 

13 

 



  

McCleskey at his trial violated his Sixth and Fourteenth 

Amendment rights to the assistance of counsel in post-indictment 

encounters with State authorities or their agents. (Id; see also 
    

R1-1- 7-13). 

The principal evidence of the Massiah violation was 

presented during three days of federal habeas corpus hearings in 

July and August of 1987. The cornerstones of McCleskey's case, 

as indicated, were (i) the 21-page, typewritten statement, given 

by Offie Evans to Fulton County prosecutor Russell Parker and two 

Atlanta policemen on August 1, 1378, and (ii) the live testimony 

of Ulysses Worthy. 

The full significance of these two items, however, appears 

only in light of background evidence that was developed during 

Mr. McCleskey's 1978 trial and during state habeas corpus 

proceedings. That background evidence will be set forth first, 

before turning to the contents of the statement and Worthy's 

testimony. 

A. Background Evidence On The Massiah Claim 
  

1. Offie Evans's Testimony At Trial 
  

Although a number of witnesses at Mr. McCleskey's trial 

testified that McCleskey had participated in an armed robbery of 

the Dixie Furniture Store in Atlanta, Georgia, on May 13, 1978, 

the State produce no witnesses to the shooting of Atlanta police 

officer Frank Schlatt, which occurred as Schlatt entered the 

furniture store in response to a silent alarm. The murder weapon 

itself was never recovered. 

14 

 



  

To prove that Mr. McCleskey had personally committed the 

homicide against Officer Schlatt, the State relied on partially 

contradictory testimony about who had been carrying the murder 

weapon. © The State also relied on two witnesses, both of whom 

claimed that McCleskey had confessed to them, after the crime, 

that he had shot Officer Schlatt. One of the two witnesses was 

the most likely alternative suspect in the shooting =-- Ben 

Wright, McCleskey's co-defendant and a dominant actor in planning 

and executing the armed robbery. (See Tr. T. 651-657). 

Apart from Wright, the only witness offering direct 

testimony that Mr. McCleskey had been the triggerman was Offie 

Gene Evans, who told the jury that McCleskey had admitted 

committing the homicide during conversations in the Fulton County 

Jail, where the two were in adjacent cells. Evans in fact gave 

important testimony on three points: (i) he told the jury about 

McCleskey's "confession" (Tr. T. 870-871; Fed. Exh. 4, 870-871); 

(ii) he alleged that McCleskey had "said . . . he would have 

tried to shoot his way out . . . if it had been a dozen" police 

  

© One of the four robbers, Mr. McCleskey's co-defendant Ben 
Wright, and several other witnesses, testified that McCleskey may 
have been carrying a pearl-handled, silver .38 pistol linked to 
the homicide. (Tr. T. 649; 727). Yet on cross-examination, Ben 
Wright admitted that he, not McCleskey, had personally been 
carrying that weapon for several weeks prior to the crime. (Tr. 
T. 682). 

Moreover, Ben Wright's girlfriend admitted that she had 
informed police, on the day Wright was arrested, that Wright, not 
McCleskey, had been carrying the .38 pistol the day of the 
furniture store robbery. During trial, she attempted to change 
that testimony, conforming her story to that of her boyfriend 
Wright, and claiming that McCleskey had taken the .38 pistol on 
the morning of the crime. (Tr. T. 607; 631-634). 

15 

 



  

officers" (Tr. T. 871; Fed. Exh. 4, 871);’/ and (iii) he single- 

handedly clarified a glaring inconsistency in the identification 

testimony of one of the State's principal witnesses, explaining 

that Mr. McCleskey had acknowledged wearing makeup and a disguise 

during the crime. (Tr. T. 301-303; 870-871; 876-879). 

On both direct- and cross-examination, Offie Evans denied 

that his testimony was being given in exchange for any promise or 

other consideration from State officials. (Tr. T. 868-869; 882- 

883). 

2. Evans's Testimony During State Habeas Proceedings 
  

During the course of Mr. McCleskey's 1981 state habeas 

proceedings, Offie Evans took the witness stand a second time. 

Evans acknowledged that he had engaged in several interviews 

with State officers prior to Mr. McCleskey's trial: the first, 

with Atlanta police detectives Welcome Harris and Sidney Dorsey 

(St. H. Tr. 117; Ped. Exh. 16, 117): and .a second, with 

prosecutor Russell Parker. (St. H. Tr. 118; Fed. Exh. 156, 118).8 

  

7 This ostensible statement subsequently became a basis for 
the prosecutor's argument to the jury that Mr. McCleskey had 
acted with "malice." (See Tr. T. 974). 

8 Ooffie Evans's testimony unmistakably confirms that there 
were two separate interviews: 

Q. All right. You talked with Detective Dorsey =-- it 
was Dorsey, the Detective you talked to? 

A... That's right. 

Q. All right. And you talked with Detective Dorsey 
first before you talked with Russell Parker from the 
D.A.'s Office? 

A. “That's right, 

16 

 



  

In response to a question by the state habeas court, Evans 

revealed that he had testified against Mr. McCleskey at trial in 

exchange for a offer of assistance with criminal charges pending 

against him in 1978: 
i 

THE COURT: Mr. Evans, let me ask you a question. At 
the time that you testified in Mr. McCleskey's trial, 
had you been promised anything in exchange for your 
testimony? 

THE WITNESS: No, I wasn't. I wasn't promised nothing 
about -- I wasn't promised nothing by the D.A. but the 
Detective told me that he would -- he said he was going 
to do it himself, speak a word for me. That was what 
the Detective told me. 

BY MR. STROUP: Q. The Detective told you that he 
would speak a word for you? 

A. Yeah. 

Q. That was Detective Dorsey? 

A. Yeah. 

(St. H. Tr. 122; Fed. Exh. 15, 122). 

B. The Twenty-One Page Statement 
  

The 2l1-page statement of Offie Evans, annexed by Mr. 

McCleskey to his second federal petition, purports to be an 

account of (i) short snippets of conversations, overheard by 

Offie Evans, between McCleskey and a co-defendant, Bernard 

Dupree, and (ii) a long series of direct conversations between 

Evans and McCleskey, initiated on July 9, 1978, while all those 

involved were incarcerated in adjacent cells at the Fulton 

County Jail. (See Fed. Exh. 8; see also R1-1, Exhibit E). 
  

  

(St. H. Tr. 119; Fed. Exh. 16, 119). 

17 

 



  

The typewritten statement reveals that, once in an adjacent 

cell, Evans disguised his name, falsely claimed a close 

relationship with McCleskey's co-defendant Ben Wright, lied about 

his own near-involvement in the crime, spoke to McCleskey about 

details of the crime which had not been made public and which 

were known only to Atlanta police and to the participants,? 

established himself with McCleskey as a reliable "insider," and 

then began systematically to press McCleskey for information 

about the crime.l1l0 

  

9 For example, Evans accurately suggested that he knew that 
McCleskey and other co-defendants had told police that co- 
defendant Ben Wright was the likely triggerperson (Fed. Exh. 8, 
at 4) although this fact had not been made public in July of 1978. 

10 In his typewritten statement to prosecutor Russell 
Parker, Evans frankly confessed to his duplicity in dealing with 
Mr. McCleskey: 

"TI told Warren McClesky [sic] 'I got a nephew man, he in a 
world of trouble ...' McClesky asked me 'What is his name.' I 
told him 'Ben Wright.' McCleskey said 'You Beens' [sic] uncle.' I 
said 'Yeah.' He said 'What's your name?' I told him that my name 
was Charles." (Fed. Exh. 8, at 3). After Evans falsely assured 
McCleskey that he "used to stick up with Ben," and that "Ben told 
me that you shot the man yourself," ( id. at 4), Evans began to 
pry open the story of the crime. "I said man 'just what's 
happened over there?" (Id.) 

Even after McCleskey told him some details of the crime, 
Evans continued his surreptitious interrogation: "And then I 
asked McClesky what kind of evidence did they have on him." ( Id. 
at: 6). In a subsequent conversation, Evans sought to learn the 
location of the missing murder weapon: "Then I said, 'They ain't 
got no guns or nothing man?'" (Id. at 7). When Bernard Dupree, 
Mr. McCleskey's co-defendant, overheard the conversations between 
Evans and McCleskey from his cell upstairs and became 
apprehensive, Evans worked to allay Dupree's suspicions, "talking 
to Dupree about Reidsville [and] just about ma[king] Dupree know 
me himself." (Id. at 9). 

18 

 



  

C. The July 8-9, 1987 Federal Hearing 
  

1. The Testimony of Prosecutor Russell Parker 
  

During the federal hearing on July 8 and 9, 1987, Russell 

Parker and three Atlanta police officers assigned to the Schlatt 

homicide case in 1978 gave testimony concerning the Massiah 

claim. Russell Parker testified that he met with Offie Evans, in 

the presence of Atlanta police officers, on two occasions, first 

at the Fulton County Jail on July 12th, 1978, and then again on 

August 1, 1978, when the 2l1l-page statement was transcribed. (R4- 

140-141). However, Parker insisted: (i) that Offie Evans had 

told them everything eventually reflected in the 21-page, 

typewritten statement during the initial, July 12th interview 

(R4-152); (ii) that he had not engaged in conversations with 

Offie Evans. prior to July 12th (R4-140); and (iii) that he had 

not asked Evans on July 12th, or prior thereto, to serve as an 

informant. (R4- 166-167). 

Russell Parker's testimony seems largely borne out by his 

contemporaneous notes of the July 12th meeting, which include 

several notations consistent with key portions of the 

typewritten statement Evans gave a month later. (See Fed. Exh. 

9). 

Russell Parker testified emphatically that he had neither 

met nor even heard of Evans prior to their July 12th meeting. 

(R4-142; R5- 85-86; R6-109). Indeed, Parker apparently conducted 

an informal investigation into Evans's background after their 

July 12th meeting. Written notes by Parker, dated July 25, 1978, 

39 

 



  

reflect that Parker heard from several independent sources-- 

among them Federal Corrections official Frank Kennebrough and FBI 

agent David Kelsey -- that Evans was "a good informant," whose 

evidence was "reliable." (Fed. Exh. Ex. 10; see also R6- 81-82). 
  

Another federal correctional official, E.W. Geouge, described 

Offie Evans as "[a] professional snitch" whose word, however, had 

to be "take[n] with a grain of salt.” {(14d.) 

2. The Testimony Of Police Officers Harris and Jowers 
  

Two other police officers who had investigated the 

McCleskey case, Welcome Harris and W. K. Jowers, testified that 

they likewise had not known Evans prior to July 12, 1978. (R4- 

200). Officer Jowers, who was not present at the July 12th 

meeting with Evans, testified that he never came into contact 

with Offie Evans during the McCleskey investigation. (R5- 35-36). 

Both Harris and Jowers testified that they had never met 

privately with Offie Evans or asked him to serve as an informant 

against Warren McCleskey, and that they had never directed Evans 

to seek admissions from McCleskey. (R6- 98-99, 102-102) 

3. The Testimony of Detective Sidney Dorsey 
  

The third police officer on the case, Sidney Dorsey, told a 

different story. Dorsey acknowledged that he had previously 

known Evans (R5-49), and that he was aware that Evans had 

previously served as an informant. (R5-53). Indeed, Dorsey 

himself had personally used Evans as am informant in other cases. 

(Id.) Detective Dorsey testified that 

20 

 



  

Q. ... [Hle was the person over the years that 
would provide occasionally useful information 
to the department? 

A. He has -- he has -- he has on occasions that 
I can recall been cooperative with me. 

Q. Right. And so when he called you'd come see 
him because it might well be the prospect of 
some information? 

A. Yeah, yeah. I'd see him or hear from him 
from time to time. ... [H]e was the kind of 
person that if he called me I'd go see him. 

(R5- 53, 52). 

Despite this pre-existing special relationship with Offie 

Evans, Detective Dorsey professed a total lack of memory 

concerning his dealings with Evans during the Schlatt 

investigation: 

Q. Okay ... [Evans] found himself in the Fulton County 
Jail in July of 1978. Did you go see him at any point 
in July? 

A. Counselor, I do not recall going to see Offie Evans at 
the Fulton County Jail during that time or any time. 

Q. Do you remember any meetings that might have been held 
between Mr. Evans and yourself and Detective Harris and 
Russell Parker at the jail? 

A. Counselor, in all honesty, I do not. 

* * * * 

A. I'm not suggesting that the meeting didn't take place, 
nor am I suggesting that I wasn't there. I just don't 
recall being there and for some reason no one else 
remembers my being there either. 

(R5- 57-58, 59-60). 

As the excerpt above reveals, Detective Dorsey was unwilling 

to deny categorically during the July and August, 1987 hearings 

21 

 



  

that he had met with Evans during the Schlatt investigation. On 

the contrary, he acknowledged that he "probably did" meet with 

Evans (R5-60), that it was "very possible" he had done so. (RS- 

66). He simply could not remember. 

Detective Dorsey did clearly remember, however, that he had 

not shared knowledge of his special relationship with Evans 

widely, not even with the other Atlanta police officers on the 

Schlatt case. (R5-55; 61-62). Officers Harris and Jowers 

confirmed that they had not known of Detective Dorsey's prior 

informant relationship with Offie Evans. (R4-200; R5- 35-38). 

Moreover, all of the other participants testified that their 

recollections concerning Officer Dorsey's role in the Schlatt 

investigation were very hazy, at best. Russell Parker testified 

that he had no recollection of Detective Dorsey's role at all 

(R4-131; R6-113), and more specifically, he did not remember 

Dorsey's presence at the July 12, 1978 meeting, even though his 

own notes indicate that Dorsey attended that meeting. (R4-131; 

R6-113; Fed. Exh 9, at 4). 

Detective Harris likewise testified that he had only a 

"vague recollection" at most of Detective Dorsey's involvement in 

the investigation. (R4-206; id. 195; R6-107). Detective Dorsey 

explained that "generally we all sort of worked on our own. 

There was very seldom, if any, orders ever given." (R5 -48-49). 

  

4. The Testimony Of Ulysses Worthy 

Late in the afternoon of the second day of the federal 

hearing in July of 1987, Ulysses Worthy answered one of many 

22 

 



  

subpoenas that had been served by Mr. McCleskey's counsel on a 

wide variety of state, county, and municipal officers during the 

course of the two-day hearing. After a momentary interview with 

counsel for Mr. McCleskey and Warden Zant (R6- 50-52; R6- 118- 

119), Worthy took the stand. 

Mr. Worthy testified that he had been the captain of the day 

watch at the Fulton County Jail in 1978. (R5-146). He recalled 

that Offie Evans was in custody during that time. (R5-147). He 

also recalled a nestitic, which took place in his presence at the 

Fulton County Jail, between several Atlanta police officers and 

Offie Evans. (R5-147-149). 

During this meeting,ll Detective Sidney Dorsey and Offie 

Evans discussed the murder of Officer Schlatt (R5-148), and 

Worthy recalled that Detective Dorsey (or perhaps some other 

"officer on the case") requested Evans "to engage in 

conversations with somebody . . . in a nearby cell." (R5- 148- 

149). Mr. Worthy testified that the targeted inmate was Warren 

McCleskey, who was being held in isolation awaiting trial 

following his indictment for murder and armed robbery. Mr. 

Worthy confirmed, upon further questioning, that an Atlanta 

police officer "asked Mr. Evans to engage in conversations with 

McCleskey who was being held in the jail." (R5-150). 

Worthy testified that, as captain of the day watch, he had 

occasionally received other requests from Atlanta police 

  

11 Mr. Worthy indicated that the detectives "were out 
several times" to meet with Offie Evans. (R5-151). 

23 

 



  

officers, which he would honor, to place one inmate in a cell 

next to another so that police could obtain information on 

pending criminal cases. (R5-152). In the McCleskey case, Worthy 

specifically recalled that "[t]he officer on the case," made such 

a request to him. (R5-153). In response to the police officer's 

request, Offie Evans was moved from another part of the Fulton 

County Jail to a cell directly adjacent to Warren McCleskey's 

cell: 

Q. [By the State]: Mr. Worthy, let me see if I 
understand this. Are you saying that someone 
asked you to specifically place Offie Evans 
in a specific location in the Fulton County 
Jail so he could overhear conversations with 
Warren McCleskey? 

A. Yes, ma'am. 

(R5-153). As Mr. Worthy later explained to the District Court: 

Judge, may I clarify that? . .. . in this 
particular case this particular person was 
already incarcerated. They just asked that 
he be moved near where the other gentleman 
was. 

(R5-155) .12 
  

12 Mr. Worthy's account of an initial meeting between 
Detective Dorsey and Offie Evans, followed by Evans' move to a 
cell next to McCleskey, followed by Evans' extensive 
conversations with Mr. McCleskey, culminating in Evans' meeting 
with Parker and Atlanta police officers, helps to explain one 
major puzzle about the basic structure and content of Evans' 21- 
page written statement. Although Evans was arrested and taken to 
the Fulton County Jail on July 3, 1978 (R5- 101-17), his written 
statement is absolutely silent concerning any contact with 
McCleskey during the four-day period between July 3rd and July 
8th. Only beginning on the 8th of July does Evans' statement 
first begin to report any conversations between McCleskey and his 
partner Bernard Dupree. (Pet. 8, at 1). Not until July 9th does 
Evans report that he first introduced himself to McCleskey, 
claiming that he was Ben Wright's uncle "Charles." (Pet. 8, at 3). 

24 

 



  

5. Offie Evans 
  

During the July 8-9, 1987, hearing, counsel for Mr. 

McCleskey submitted both an oral report and affidavits to the 

Court (R1lSupp.-35- Aff't of Bryan A. Stevenson and Aff't of T. 

Delaney Bell, both dated July 7, 1987), detailing their efforts 

to locate Offie Evans -- who had been recently released from 

state prison, who was on probation to the Fulton County 

Probation Office, who had been seen by two family members, but 

who had declined to make himself available to Mr. McCleskey or 

his counsel. Evans did not appear, and thus he did not testify. 

(R4- 17-21). 

D. The Auqust 10, 1987 Federal Hearing 
  

At the close of the July 8-9, 1987 federal hearing, the 

District Court allowed Warden Zant a month's recess in order to 

locate any further witnesses he might wish to call to rebut Mr. 

McCleskey's evidence. (R5- 163-166). 

1. The Testimony Of Ulysses Worthy 
  

At the adjourned hearing on August 10th, Warden Zant re- 

called Ulysses Worthy. Mr. Worthy's August testimony accorded in 

most fundamental respects with his July 9th account.l3 Worthy 

agreed, after some initial confusing testimony concerning Carter 

Hamilton (a deputy jailor), that "an officer on the case ... made 

  

13 on cross-examination, Mr. Worthy expressly reconfirmed 
every important feature of his July 9, 1987 testimony, point-by- 
point. (R6- 25-35). 

25 

 



  

[a] request for [Evans] to be moved," (R6-50) . 14 In response to 

questioning from the District Court, Worthy specifically 

confirmed the following facts about the role of the Atlanta 

police officers: 

THE COURT: But you're satisfied that those three 
things happened, that they asked to 
have him put next to McCleskey, that 
they asked him to overhear McCleskey, and 
that they asked him to question McCleskey. 

THE WITNESS: I was asked can -- to be placed 
near McCleskey's cell, I was asked. 

THE COURT: And you're satisfied that Evans was 
asked to overhear McCleskey talk about 
this case? 

THE WITNESS: Yes, sir. 

THE COURT: And that he was asked to kind of try 
to draw him out a little bit about it? 

THE WITNESS: Get some information from him. 

(R6- 64-65; accord, R6- 26-28). 

It is only on two related points -- exactly when Evans' move 

was requested, and the number of (and participants in) various 

meetings -- that Worthy's August 10th testimony varies from his 

July 9th testimony. Worthy's most noteworthy change was his 

suggestion that the police request to move Evans did not come 

until the close of the July 12, 1978, meeting between Evans, 

Russell Parker, and Atlanta police officers. (R6- 16-19; id. 36- 

38). Worthy attempted on August 10th to explain that his 

  

14 worthy specifically testified that he did not consider 
the jailor, Fulton County Deputy Sheriff Carter Hamilton, to have 
been "an officer on the case." (R6-49, 65). 

26 

 



  

earlier testimony on this point had been misunderstood, and that 

his first and only meeting with investigators had been the July 

12, 1978, meeting attended by Russell Parker. (R6- 15-17; id. 

36-37). 

Yet on cross-examination, Worthy acknowledged that his 

earlier, July 9th testimony made distinct references to (i) an 

initial meeting, attended by Detective Dorsey, Offie Evans, and 

Worthy (RS5- 148), and (ii) a "subsequent meeting" with Mr. Evans 

which occurred on a "later occasion" when "those detectives ... 

came back out." (R5-151). In his July 9th testimony, Worthy 

testified that it was only at this "later" meeting that Russell 

Parker was present. (Id.). Indeed, Worthy had not been able to 

recall on July 9th whether Detective Dorsey had attended this 

second meeting, although Worthy testified unequivocally that 

Dorsey had been present at the first meeting. (Id.). 

Moreover, Mr. Worthy was unable on cross-examination to 

explain how Offie Evans could have: (i) overheard conversations 

between McCleskey and Dupree on July 8-11, 1978; (ii) engaged in 

extensive conversations with McCleskey on July 9-10, 1978; and 

(iii) received a written note from McCleskey (which he passed 

directly to Russell Parker during their July 12, 1978 meeting), 

if Evans had been moved to a nearby cell only after July 12th. 
  

(R6 =-40-44). Nor could Worthy explain why Atlanta investigators 

would have sought on July 12, 1978, to move Offie Evans to a 

cell next to Warren McCleskey if Evans had already been in that 

cell for at least four days prior to July 12th, gathering the 

27 

 



  

very fruits offered by Evans on July 12th. (R6- 39-44). 

Mr. Worthy acknowledged that, at the time of the initial 

federal hearing on July 9, 1987, he did not know the lawyers for 

the parties, and that he knew nothing about the legal issues in 

the McCleskey case or what other witnesses had said in their 

testimony. (R6- 52-53). Between his first and his second court 

appearances, however, Mr. Worthy had read a newspaper article 

about the first hearing (R6- 55-56) and had met twice with 

counsel for Warden Zant to discuss his earlier testimony. (R6- 

53-54). 

2. The Testimony Of Deputy Jailor Hamilton 
  

At the August 10th hearing, in addition to re-calling 

Ulysses Worthy, Warden Zant also re-called the Atlanta prosecutor 

and police, who reiterated their denials of involvement with 

Offie Evans as an informant. Zant also called Carter Hamilton, 

who had been a floor deputy at the Fulton County Jail in 1978. 

(R4-176) . Hamilton testified that he did not recall anyone 

coming to the jail to speak with Offie Evans about the Schlatt 

case until July 12, 1978, when he sat in on the meeting among 

Evans, prosecutor Parker, and Atlanta police officers. (R6-68). 

Deputy Hamilton testified that he had no knowledge of Evans 

ever being moved while in jail. (R6-68). Although Hamilton was 

present throughout the July 12, 1978 meeting between Evans, 

Russell Parker and the Atlanta police officers, he heard no 

requests during that meeting for Evans to be moved, or for Evans 

to engage in conversations with Mr. McCleskey. (R6- 69-72). 

28 

 



  

On cross-examination, Deputy Hamilton admitted that he could 

not say affirmatively whether Evans might have been held in 

another part of the Fulton County Jail prior to July 8, 1978. 

There were some 700 to 900 prisoners being held in July of 1978; 

they were held on two separate floors in three different wings. 

(R6-73). Had Offie Evans been held on the second floor or in a 

different part of the Fulton County Jail between his initial 

incarceration on July 3, 1978 and July 8, 1978, ~-- or if a 

movement had occurred during a different shift than the one 

Deputy Hamilton worked -- he admitted that he would have had no 

knowledge of it. (R6- 72-76). Hamilton also acknowledged that he 

had no specific memory of when Offie Evans first was placed in 

the first-floor cell next to Mr. McCleskey. (R6-75). 

E. The Findings Of The District Court 
  

The District Court, after summarizing the testimony and the 

documentary evidence (R3-22- 15-18, 19-21) and analyzing the 

discrepancies in Worthy's testimony (R3-22- 16-18), found the 

following: 

After carefully considering the substance of Worthy's 
testimony, his demeanor, and the other relevant 
evidence in this case, the court concludes that it 
cannot reject Worth's testimony about the fact of a 
request to move Offie Evans. The fact that someone, at 
some point, requested his permission to move Evans is 
the one fact from which Worthy never wavered in his two 
days of direct and cross-examination. The State has 
introduced no affirmative evidence that Worthy is 
either lying or mistaken. The lack of corroboration by 
other witnesses is not surprising; the other witnesses, 
like Assistant District Attorney Parker, had no reason 
to know of a request to move Evans or, like Detective 
Dorsey, had an obvious interest in concealing any such 
arrangement. Worthy, by contrast, had no apparent 

29 

 



  

interest or bias that would explain any conscious 
deception. Worthy's testimony that he was asked to 
move Evans is further bolstered by Evans' [state 
habeas corpus] testimony that he talked to Detective 
Dorsey before he talked to Assistant District Attorney 
Parker and by Evans' apparent knowledge of details of 
the robbery and homicide known only to the police and 
the perpetrators. 

* Rk % * 

[T]he court concludes that petitioner has established 
by a preponderance of the evidence the following 
sequence of events: Evans was not originally in the 
cell adjoining McCleskey's; prior to July 9, 1978, he 
was moved, pursuant to a request approved by Worthy, to 
the adjoining cell for the purpose of gathering 
incriminating information; Evans was probably coached 
in how to approach McCleskey and given critical facts 
unknown to the general public; Evans engaged McCleskey 
in conversation and eavesdropped on McCleskey's 
conversations with DuPree [McCleskey's co-defendant]: 
and Evans reported what he had heard between July 9 and 
July 12, 1978 to Assistant District Attorney Parker on 
July 12. 

{(R3~-22~ 21-22, 23; accord, R1Supp.~40~ 9-10). In a subsequent 

paragraph, the District Court summarized the likely motivation 

for the scheme: 

Unfortunately, one or more of those investigating 
Officer Schlatt's murder stepped out of line. 
Determined to avenge his death the investigator(s) 
violated <clearly-established case law, however 
artificial or ill-conceived it might have appeared. In 
so doing, the investigator(s) ignored the rule of law 
that Officer Schlatt gave his life in protecting and 
thereby tainted the prosecution of his killer. 

(R3-22-31). 

III. The Harmless Error Issue 
  

Mr. McCleskey was tried by the Fulton County Superior Court 

on one count of murder, and two counts of armed robbery. (Tr. T. 

987). As indicated above, the State's evidence that McCleskey 

30 

 



  

was the actual perpetrator of the Schlatt homicide was limited to 

some conflicting evidence on who was carrying the murder weapon, 

the allegations of McCleskey's co-defendant Ben Wright, and the 

testimony of Offie Evans. (See pages 14-16 supra). 

At the «close of the guilt phase, the Superior Court 

instructed the jury on theories of malice murder (Tr. T. 998-999) 

and of felony murder. (Tr. T. 999-1000). In its charge on malice 

murder, the trial court instructed the jury that "a person 

commits murder when he unlawfully and with malice aforethought, 

either express or implied, causes the death of another human 

being." (Tr. T. 1000). In its charge on felony murder, the trial 

court informed the jury that "[t]he homicide is committed in the 

perpetration of a felony when it is committed by the accused 
  

while he is engaged in the performance of an act required for the 

full execution of such a felony." (Tr. T. 1000) (emphasis added), 

and that the jury should convict "if you believe and find beyond 

a reasonable doubt that the homicide alleged in this indictment 

was caused by the defendant while he, the said accused, was in 
  

the commission of an armed robbery . . . ." (Id.).1> 

  

15 The court had earlier charged the jury, in a general 
section, on the doctrine of "parties to a crime," as follows: 

That statute says that every person concerned in the 
commission of a crime is a party thereto and may be 
charged with and convicted of commission of the crime, 
and then it has several subsections. It says that a 
person is concerned in the commission of a crime only 
if he directly commits the crime, intentionally aides 
or abets in the commission of the crime, or 
intentionally advises, encourages, hires, counsels or 
procures another to commit the crime. 

31 

 



  

During its deliberations, the jury sought further 

instructions on the issue of malice murder. The Superior Court 

repeated its instructions. (Tr. T. 1007-1009). Ten minutes 

later, the jury returned, finding Mr. McCleskey guilty of malice 

murder and two counts of armed robbery. (Tr. T. 1010). 

During federal habeas proceedings, after determining that 

Offie Evans' testimony was the product of unconstitutional 

Massiah violations, the District Court addressed the possible 

harmlessness of the violation. The court concluded that Offie 

Evans' "testimony about petitioner's incriminating statements was 

critical to the state's case" (R3-22-30): 

There were no witnesses to the shooting and the murder 
weapon was never found. The bulk of the state's case 
against the petitioner was three pronged: (1) evidence 
that petitioner carried a particular gun on the day of 
the robbery that most likely fired the fatal bullets; 
(2) testimony by co-defendant Ben Wright that 
petitioner pulled the trigger; and (3) Evans' testimony 
about petitioner's incriminating statements. As 
petitioner points out, the evidence on petitioner's 
possession of the gun in question was conflicting and 
the testimony of Ben Wright was obviously impeachable. 
. « .[Tlhe chronological placement of Evans testimony 
[as rebuttal evidence] does not dilute its impact-- 
"merely" impeaching the statement "I didn't do it" with 
the testimony "He told me he did do it" is the 
functional equivalent of case in chief evidence of 
guilt. . . . Because the court cannot say, beyond a 
reasonable doubt, that the jury would have convicted 
petitioner without Evans' testimony about petitioner's 
incriminating statements, petitioner's conviction for 
the murder of Officer Schlatt must be reversed pending 
a new trial. 

(R3-22- 29-31). 

  

(Tr. T. 994). 

32 

 



  

IV. Warden Zant's Rule 60(b) Motion 
  

In April of 1988, while this case was pending on appeal, 

Warden Zant moved this Court to remand the case to the District 

Court or to supplement the record, based upon the availability of 

Offie Evans, who had then been recently re-jailed on further 

charges. After responsive papers were filed, the Court, on May 

2, 1988, granted leave for Warden Zant to file a motion to reopen 

the judgment in the District Court, pursuant to Rule 60(b). 

Warden Zant filed such a motion on May 6, 1988. (R1lSupp.- 

31). After receiving responsive papers (R1Supp.-32), the 

District Court found that Warden Zant had "fail[ed] to satisfy 

the requirements for the relief sought. There is neither a 

showing of due diligence nor a showing as to what Offie Evans 

would say." (R1lSupp.-34-1). Instead of dismissing the motion, 

however, the District Court granted Warden Zant six weeks to 

conduct additional discovery. (R1Supp.-34-2). 

A. The Issue Of Warden Zant's "Due Diligence" 
  

During that discovery period, Warden Zant acknowledged, in 

responses to written interrogatories: (1) that neither he nor 

anyone under his direction ever sought to locate Offie Evans at 

any point during or after the 1987 federal hearings (R1lSupp.-35- 

Resp. Answer To First Interrog.-1-2); (ii) that he never 

indicated, either to the District Court or to counsel for Mr. 

McCleskey, his desire to call Offie Evans as a witness in 1987 

33 

 



  

(id. at 2);1%® and (iii) that he never attempted to follow up the 

direct leads to Evans' whereabouts that had been revealed by Mr. 

McCleskey's counsel during the initial July 8-9, 1987 hearing. 

(1d.) 4? 

Counsel for Mr. McCleskey also discovered, and presented the 

District Court, documentary evidence that O0Offie Evans's 

deposition had been taken in another case in October of 1981, 

that the deposition had addressed the issue of Evans's contacts 

with Atlanta police while in jail in 1978, and that Warden Zant's 

present counsel had been aware of that deposition -- indeed, had 

offered it in another federal habeas case in 1985 -- and had 

obviously chosen not to offer it during Mr. McCleskey's 1987 
  

16 The District Court specifically instructed Warden Zant, 
during the one-month interval between the initial July, 1987 
federal hearing and the August 10, 1987 rebuttal hearing, to 
provide formal notice to Mr. McCleskey of any witnesses Zant 
might call during the August 10th hearing. (R5-168). In neither 
of two letters, dated July 24 and July 29, 1987, did counsel for 
Warden Zant express any desire to call Offie Evans, nor did he 
seek additional time or assistance to locate Evans. 

17 During that hearing, counsel for Mr. McCleskey detailed, 
in affidavits proffered to Warden Zant's counsel, the efforts 
they had made to locate Offie Evans in May and June of 1987, just 
prior to the hearing. (See R4-17; R1Supp.-35, Aff'ts of Bryon A. 
Stevenson and T. Delaney Bell). Those affidavits reveal that, at 
various times during May and June of 1987, Mr. Stevenson and/or 
Mr. Bell had spoken with Offie Evans's sisters, who reported that 
Evans was in and out of the two homes every few days. 

Assistant District Attorney Parker was questioned under 
cath, during the July 8th hearing, about Offie Evans's 
whereabouts. He responded: 

"I understand he's just gotten out of jail, You Honor, but I do 
not know where he is. I assume he's in the Atlanta area 
somewhere. . . TI could probably find him. I have spent enough 
time with him." (R4-174) (emphasis added). 

  

  

34 

 



  

proceedings. (R1Supp.-38-2, 18-19). 

B. The Materiality Of Offie Evans's Testimony 
  

During the discovery period, on July 13, 1988, Warden Zant 

took the deposition of O0Offie Evans. That deposition was 

thereafter submitted to the District Court in support of Warden 

Zzant's Rule 60(b) motion. (R1Supp.-37).18 During his deposition, 

Evans denied ever having been moved while in the Fulton County 

Jail in 1978, or ever having been asked to serve as an informant 

against Warren McCleskey. (R1Supp.-37- 15-21). 

Evans' deposition testimony contained a number of internal 

contradictions, as well as contradictions with his own former 

testimony and the testimony of other officers. For example, 

Evans testified that he began speaking with McCleskey on July 3, 

1978, the first day he was incarcerated, while the two were in 

adjacent cells. (R1Supp.—-37-15, 54). In 2l-page typewritten 

statement to Russell Parker, however, Evans states that he did 

not begin speaking with McCleskey until five days after his 

incarceration, on July 9th. (Fed. Exh. 8). During his July 13th 

deposition, Evans denied ever meeting with Russell Parker prior 

to August 1, 1987 (R1lSupp.-37-21); Parker and other witnesses 

testified that the two met on July 12, 1978. 

Evans also maintained during his 1988 deposition that 

Detective Dorsey had never promised to "speak a word for him" in 
  

1g Although the court subsequently contacted counsel for 
both parties, inquiring whether either sought an evidentiary 
hearing on the Rule 60(b) motion, Warden Zant did not request an 
opportunity to present Evans' live testimony. 

35 

 



  

exchange for his testimony against Mr. McCleskey (R1Supp.=-37-92). 

His sworn testimony in state habeas corpus proceedings in 1981 

was directly to the contrary. Evans denied that he had ever 

served as an informant prior to 1978, and specifically denied any 

prior acquaintance with Detective Dorsey. (R1lSupp.-37-46, 75). 

This testimony contradicted Dorsey's testimony during the 1987 

federal hearings, as well as the information about Evans's 

informant activities which Russell Parker obtained from the FBI 

and from Federal Corrections officials. Evans also denied that 

he had spoken with Russell Parker in 1988 prior to his 

deposition. (R1Supp.-37-33). Warden Zant's 1988 Answers to 

Interrogatories revealed that Offie Evans had participated in a 

telephone conversation with Russell Parker after his re- 

incarceration in the spring of 1988. (R1lSupp.-35-Resp. Answer to 

First Interrog. at 3).19 

C. The Findings Of The District Court 
  

In its order denying Rule 60(b) relief, the District Court 

found that "Evans' testimony is not truly newly discovered but 

rather is merely newly produced. . . The fact that the essential 

substance of this testimony was in a previous deposition filed in 

the public records and known to respondent's counsel also 

indicates it is not newly discovered." (R1Supp.-40-6). 

Turning to the issue of due diligence, the District Court 

  

19 A review of 19 inconsistencies and contradictions in 
Offie Evans's deposition is set forth at pages 8 through 17 of 
Petitioner's Brief In Response To Respondent's Supplement To Rule 
60 (b) Motion. (R1lSupp.-38). 

36 

 



  

found that "respondent made no efforts to locate Evans during the 

summer of 1987." (R1lSupp.-40-8). "[T]he Atlanta Bureau of Police 

Services has enjoyed a special relationship with Mr. Evans over 

the years, and . . . if the department had been looking for him, 

Mr. Evans might have made himself available" to Warden Zant. 

(Id.-7). The court concluded that "petitioner's efforts did not 

relieve respondent of any obligation to utilize his own resources 

to locate Evans. Movant has not demonstrated the due diligence 

prong of the 60(b) (2) standard." (Id.). 

Finally, addressing the impact of Evans's testimony, the 

District Court found that 

[i]t is unlikely Evans' testimony would produce a 
different result. The credibility or believability 
problems with his testimony are evident. He has a 
strong motivation for saying he was not an informant, 
not only because of recriminations from his 
associates, but also in order to stay in favor with the 
police and prosecutors who have used him to testify in 
the past. The numerous contradictions within his 
deposition also lead the court to the conclusion that 
his testimony would not be believable. 

(Id. at 9). The court closed its analysis by noting that it had 

already credited the word of Ulysses Worthy against the sworn 

testimony of Atlanta law enforcement personnel: "Evans testimony 

is not likely to change the credibility of Worthy's testimony or 

the fact that petitioner showed by a preponderance of the 

evidence that a Massiah violation occurred. (Id. at 10). 

(iii) Statement of the Standard of Review 

Mr. McCleskey agrees with Warden Zant that the appropriate 

standard to be applied to the Rule 9(b) issue and the Rule 60(b) 

37 

 



  

issue on this appeal is whether the District Court abused its 

discretion. Mr. McCleskey's constitutional claim under Massiah 

Vv. United States presents mixed questions of fact and law. The 
  

ultimate legal questions presented by that claim should be 

independently reviewed by this Court. 

Under Rule 52 of the Fed. R. Civ. P., the District Court's 

factual findings on all issues -- Zant's Rule 9(b) allegations, 

the merits of the Massiah claim, harmless error, and Rule 60 (b) 

-- should not be disturbed unless they are clearly erroneous. 

SUMMARY OF ARGUMENT 
  

The gravamen of Warden Zant's appeal is that this Court 

should overturn virtually every major fact found by the District 

Court. Zant's appeal should be denied, since the District 

Court's factual findings are not "clearly erroneous." 

The governing standard, Rule 52 of the Fed. R. Civ. P. does 

not permit this Court independently to reweigh the extensive 

factual record. "'Where there are two permissible views of the 

evidence, the factfinder's choice between them cannot be clearly 

erroneous. '" Amadeo v.. Zant, UO.s.  , 100 L.BE4d.2d 249, 262 
  

(1988), citing Anderson v. Bessemer City, 470 U.S. 564, 574 
  

(1984). Only if Zant could demonstrate that only one view of the 

evidence exists would his appeal have merit. 

Zant's burden is insurmountable on this record. The 

District Court heard extensive live testimony and carefully 

sifted hundreds of pages of documentary evidence before reaching 

its decision. The lower court's judgment, embodied in two 

38 

 



  

thorough opinions, expressly considers the alternative views of 

the evidence and clarifies, with great care, the court's choices 

among them. 

The Massiah claim plainly turns on the District Court's 

credibility assessment of three key witnesses, two of whom 

testified before the court -- jailor Ulysses Worthy and Detective 

Sidney Dorsey -- and one of whom -- Offie Evans -- appeared via 

two hearing transcripts and an 100-page deposition. The Supreme 

Court has stressed that "[w]lhen findings are based on 

determinations regarding the credibility of witnesses, Rule 52 (a) 

demands even greater deference to the trial court's findings; for 

only the trial judge can be aware of the variations in demeanor 

and tone of voice that bear so heavily on the listener's 

understanding of and belief in what is said." Anderson v. City 
  

of Bessemer City, 470 U.S. 574, 575 (1985). 
  

The District Court's factual determinations are not only 

defensible; they are by far the most plausible reading of the 

evidence. The various threads of Offie Evans's testimony -- his 

admission during state habeas proceedings about a jailhouse 

meeting with Detective Dorsey, his remarkably unguarded 21-page 

statement to Atlanta law enforcement personnel (during which he 

brags repeatedly about the extensive web of lies by which he 

gradually won Warren McCleskey's confidence) -- were tied tightly 

together by Ulysses Worthy's unrehearsed account of the jailhouse 

meeting at which Atlanta police officers recruited Offie Evans to 

serve as an active informant. This testimony meshes into a 

39 

 



  

coherent fabric of deceit and constitutional misconduct, 

concealed for nearly a decade. 

The District Court's basic conclusions thus find consistent 

support in the record; they are fully supported and not "clearly 

erroneous." 

Warden Zant's additional contentions also founder on the 

District Court's factfindings. Although Zant argues that Mr. 

McCleskey "deliberately abandoned" his Massiah claim, the 

District Court found that the essential facts had been concealed 

from McCleskey during his initial state habeas proceedings. The 

court properly held that an applicant may not be held 

"deliberately" to have abandoned a constitutional claim when the 

supporting facts were not reasonably available to him. See e.q., 
  

Potts yv, Zant, 638 PF. 24 727, 741-743 (5th Cir. Unit B 1581); 
  

  

accord: Price v. Johnston, 334 U.S. 266 (1948). 

Zant also argues that Mr. McCleskey should have discovered 

the evidence hidden by State authorities. Zant's position 

ignores basic equitable principles: a court should not permit a 

party seeking equity to take advantage of his own misconduct. 

  

Sanders. v. United States, 373 U.S. 1, 17-18 (1963). The State 

cannot be heard to cry "waiver," when its own secret misdeeds 

explain why McCleskey failed to uncover the constitutional 

violation prior to 1987. Furthermore, the District Court 

determined factually that the conduct of Mr. McCleskey's counsel, 

on this record, did not amount to "inexcusable neglect." 

Warden Zant alternatively contends that Mr. McCleskey 

40 

 



  

Massiah claim was harmless error, citing as his prooftext this 

Court's rejection of Mr. McCleskey's claim under Giglio wv. 
  

United States, 405 U.S. 150 (1972), which was litigated in his 
  

first federal petition. The two violations, however, are quite 

different, and the Giglio analysis is clearly inapt. A Massiah 

violation requires the exclusion on retrial of any mention of 

Offie Evans's conversations with Mr. McCleskey. A Giglio 

violation, by contrast, allows the State to use Offie Evans's 

testimony in full; Evans would simply be required to divulge, as 

possible impeachment evidence, that Detective Dorsey made some 

kind of assurances to Evans in exchange for his testimony. The 

significance of this impeachment evidence under Giglio, 

especially for a witness like Evans, already highly impeachable, 

is of far less gravity than the exclusion, under Massiah, of. 

Evans's testimony altogether. 

In Satterwhite v. Teowas, U.S. , 100 L.Ed.24d 284 (19883), 
  

the Supreme Court recently clarified that evidence far less 

central than McCleskey's jailhouse "confessions," especially if 

obtained by the State through exploitation of a Sixth Amendment 

violation, cannot be harmless. Only if the State can prove that 

"the error complained of did not contribute to the verdict 

obtained," 100 L.Ed.2d at 295, may a court find it harmless 

beyond a reasonable doubt. 

Warden Zant's last-ditch argument seeks to reopen the 

District Court's judgment. Zant belatedly offers additional 

testimony from informant Offie Evans. Zant's motion runs afoul 

41 

 



  

of virtually every requirement established by Rule 60(b). See 

Scutieri v. Paige, 808 F.2d 785 (11th Cir. 1987). The proffered 
  

testimony is not "newly discovered" but redundant and previously 

available to the State. Warden Zant expended not one hour of 

diligence to obtain it during the 1987 federal hearings, even 

after receiving from the District Court a full month's 

adjournment expressly to permit him to locate additional 

witnesses. Evans's 1988 deposition, taken and proffered to 

buttress Zant's motion, suffices thoroughly to defeat it: as the 

District Court found, Offie Evans's latest version of his 

familiar story is a welter of internal contradictions, lies, and 

gaping holes. It could not possibly affect the careful judgment 

already rendered by the District Court. 

ARGUMENT 

I. 

MR. McCLESKEY DID NOT ABUSE THE WRIT OF HABEAS CORPUS 

BY FAILING TO UNCOVER THE MISCONDUCT OF ATLANTA POLICE 

OFFICERS WHICH CAME TO LIGHT ONLY IN 1987 

Warden Zant's argument under Rule 9(b), like his argument on 

the merits, appeals to this Court to overturn factfindings made 

after a full evidentiary hearing. Warden Zant's burden is 

enormous. Factfindings on abuse of the writ are subject to the 

same strict Rule 52 standards as are determinations on merits 

issues. See, e.g., Amadeo v. Zant, U.S. , 100 L.Ed.2d 249, 261 
  

(1988) (holding that District Court's findings on whether 

secreted evidence was "reasonably available" or ‘readily 

discoverable" by counsel is subject to Rule 52); id. at 262 

42 

 



  

(holding that District Court's findings on "deliberate bypass" 

are subject to Rule 52). 

As the Supreme Court stressed in Amadeo, "a federal 

appellate court may set aside a trial court's findings of fact 

only if they are 'clearly erroneous,'" 100 L.Ed.2d at 261. 

"'Where there are two permissible views of the evidence," the 

Supreme Court has held, "the factfinder's choice between them 

cannot be clearly erroneous.' Anderson v. Bessemer City, 470 U.S. 

[564 (1984)] at 574." Amadeo v. Zant, 100 L.Ed.2d at 262. 
  

"[Tlhe court of appeals may not reverse . . .even though 

convinced that had it been sitting as the trier of fact, it would 

have weighed the evidence differently." Anderson vVv.City of 
  

Bessemer City, 470 U.S. 564, 574 (1985). 
  

The District Court here found that certain Atlanta police 

officers perpetrated a deliberate, covert conspiracy to violate 

Mr. McCleskey's Sixth Amendment rights in 1978. Those officers 

did everything within their power to hide that misconduct from 

everyone =-- fellow officers, the District Attorney, Mr. 

McCleskey's jury, even the Georgia Attorney General's Office. 

Their wrongdoing came to light, through the sheerest chance, only 

on the eve of Mr. McCleskey's execution in 1987. 

Warden Zant now has the impossible task of arguing that Mr. 

McCleskey and his counsel "abused the writ of habeas corpus" by 

failing to uncover misconduct whose very aim was to remain hidden 

-- misconduct that escaped the attention of everyone connected 

with this case until Ulysses Worthy, an apparently peripheral 

43 

 



  

player in the overall Schlatt investigation, fortuitously stepped 

forward to describe the jailhouse deal struck by Detective Dorsey 

and Offie Evans. 

Even if Warden Zant's arguments were otherwise persuasive-- 

and we will show momentarily that they are not -- the equitable 

foundations of habeas corpus law would forbid the State to profit 

by its own proven misconduct. As the Supreme Court observed in 

Sanders v. United States, 373 U.S. 1, 17-18 (1963): 
  

To say that it is open to the respondent to show that a 
second or successive application is abusive is simply 
to recognize that 'habeas corpus has traditionally been 
regarded as governed by equitable principles. . . Among 
them is the principle that a suitor's conduct in 
relation to the matter at hand may disentitle him to 
the relief he seeks. 

Equity simply cannot permit a State to hide a constitutional 

violation and then, when caught, to fault a habeas applicant for 

not detecting the misconduct sooner. See generally, Amadeo V. 
  

Zant, U.S. , 100 L.BEd.24 at 260; Murray Vv. Carrier, 477 U.S, 
  

478, 488 (1986); Ross Vv. Kemp, 785 F.2d 1467, 1477 (11th Cir. 
  

1986). Freeman v. State of Georgia, 599 F.2d 65, 71-72 (5th Cir. 
  

1979). 

A. Warden Zant's Arqument of "Deliberate Abandonment" 
  

Warden Zant's principal argument on abuse is that Mr. 

McCleskey "deliberately abandoned the [Massiah] claim prior to 

the filing of his first federal petition." (Resp. Br. 13; id. at 

185). According to Warden Zant, "[d]eliberate abandonment : 

involves simply a consideration of whether the issue was known 

and the petitioner or his counsel made a knowing choice not to 

44 

 



  

pursue the claim after having raised it previously." (Resp. Br. 

18-19) (emphasis in original). Since Mr. McCleskey raised a 

Massiah claim in his original state habeas corpus petition, Zant 

reasons, and since he failed to assert it in his first federal 

petition, the claim, Zant concludes, was irrevocably abandoned. 

Zant dismisses the testimony of Mr. McCleskey's counsel that 

he did not plead the Massiah claim in his initial federal habeas 

petition because he had failed to uncover sufficient evidence to 

support it: 

In this case it is clear that counsel knew of the 
existence of the possibility of raising the claim and 
simply chose as a matter of tactics not to present the 
claim in the first federal habeas corpus petition. The 
simple assertion that counsel did not think he had 
sufficient facts to prove the claim is insufficient to 
overcome the barrier of an intentional abandonment of 
an issue. . . If counsel felt that there was any 

possible merit to the claim, or was even suspicious, he 
certainly should have continued to pursue the claim in 
the district court to avoid possible piecemeal 
litigation. : 

  

  

  

  

  

  

  

(Resp. Br. 22) (emphasis added). 

Warden Zant's legal contentions have no support in the law 

of this Circuit, or of any other. As the District Court properly 

held: 

Abandoning a claim whose supporting facts only later 
become evident 1s not an abandonment that "for 
strategic, tactical, or any other reasons ... can 
fairly be described as the deliberate by-passing of 
state procedures." Fay v. Noia, 372 U.S. 391, 439 
(1963), quoted in Potts v. Zant, 638 F.2d 727, 743 (5th 

  

  

Cir. 1981). +. . . This is not a case where petitioner 
has reserved his proof or deliberately withheld his 
claim for a second petition. Cf. Sanders v. United 

  

States, 373 U.S. 1, 18 (1963). Nor is the petitioner 
now raising an issue identical to one he earlier 
considered without merit. Cf. Booker v. Wainwright, 764 
F.2d 1371, 1377 (11th Cir. 19385). 

  

45 

 



  

(R3-22-24). 

Deliberately to abandon a claim, Warden Zant himself 

concedes, requires a "knowing choice." (Resp. Br. 19). The 

Supreme Court emphasized in Fay v. Noia, 372 U.S. at 439, that 
  

"the classic definition of waiver enunciated in Johnson Vv. 

Zerbst, 304 U.S. 458, 464 [1938] .=~-- 'an intentional 

relinquishment or abandonment of a known right or privilege'-- 

furnishes the controlling standard." 29 

The former Pifth Circuit, in Potts v. Zant, 638 F.28 727 
  

(5th Cir. Unit B 1981} firmly adhered to Fay on this point, 

holding that "the definition of waiver enunciated in Johnson v. 
  

Zerbst, 304 U.S. 458 -- i.e., the intentional relinquishment or 

abandonment of a known right or privilege -- [is] one necessary 
  

  

20 The most celebrated successive habeas case on this 
point is Price v. Johnston, 334 U.S. 266 (1948). The petitioner 
in Price had filed an initial federal petition in which he had 
raised a challenge to certain evidence on Fourth Amendment 
grounds. In passing, he also called the court's attention to two 
different and contrary statements made at trial by the 
prosecution's chief witness. 

  

Subsequently, on an amendment to his fourth federal 
petition, the petitioner alleged for the first time that the 
prosecution had knowingly induced the key witness, during a break 
in the trial, to change his story and give false testimony. 334 
U.S. at 287. Although the record gave the petitioner from the 
outset a strong basis to suspect misconduct, the Supreme Court 
rejected the dismissal of his claim as an abuse. 

The Court distinguished cases in which a petitioner had full 
access to "proof [of the claim] which was accessible at all" 
times." 334 U.S. at 289, and refused in Price to "assume that 
petitioner [Price] has acquired no hew or additional information 
since the time of the trial or the first habeas corpus proceeding 
that might indicate fraudulent conduct on the part of the 
prosecuting attorneys." 334 U.S. at 290. 

46 

 



  

  

element inter alia in finding a deliberate bypass." Potts v. 
  

Zant, 638 F.2d at 741 (emphasis added). Accord: Paprskar Vv. 
    

Estelle, 612 F.24 1003, 1006 (5th Cir. 1980). Deliberate 

abandonment, in short, must be "knowing and intelligent" as well 

as "deliberate" in order to constitute an abuse. Potts wv. Zant, 
  

638 F.2d at 743-744. 

The Potts majority pointed to the case of Wong Doo v. United 
  

States, 265 U.S. 239 (1924), cited by the Supreme Court in 

Sanders, in support of its analysis: 

{In the Sanders opinion, the Court characterized Wong 
Doo's ... actions as being in bad faith. The Supreme 
Court stated: 'The petitioner had full opportunity to 
offer proof of [the ground] at the hearing on the first 
petition; and if he was intending to rely on that 
ground, good faith required that he produce the proof 
then. To reserve the proof for use in attempting to 
support a later petition, if the first failed, was to 
make an abuse of the writ of habeas corpus. No reason 
for not presenting the proof at the outset is offered. 
265 U.S at 241 (emphasis added). This passage, read in 
its entirety, indicates that Supreme Court's conviction 
of the bad faith of the petitioner in Wong Doo. 

  

  

  

Potts v. Zant, 638 F.2d at 745 (emphasis added). 
  

Mr. McCleskey, as the District Court found, did not 

"reserve the proof" of a Massiah violation during his initial 

state habeas hearings for later use in a second federal petition. 

Unlike Wong Doo, Mr. McCleskey revealed everything he had 

uncovered: it was simply not enough to make out a violation. 

This Court, sitting in banc, has recently held that, "the 

inquiry into whether a petitioner has abused the writ ... must 

consider the petitioner's conduct and knowledge at the time of 

the preceding federal application." Moore v. Kemp, 824 F.2d 847, 
  

47 

 



  

851 (11th Cir. 1987). Moore's holding is consistent with 
  

earlier treatment of claims predicated on newly discovered facts: 

The petitioner may avoid dismissal if he proves by a 
preponderance of the evidence that he was ignorant of 
facts necessary to support the new ground when he filed 
his prior habeas corpus petition. 

Booker v. Wainwright, 764 F.2d 1371, 1376 (11th Cir. 1985); Haley 
  

Y. Estelle, 632 F.24 1273, 1275 (3th Cir. 1980) (Vit is clear 
  

that a petitioner cannot be charged with having abused the writ 

of habeas corpus if, at the time of his earlier petition, he was 

unaware of the facts on which his earlier claims are based"); see 

also Walker v., Lockhart, 763 F.2d 942, 955 n.26 (8th Cir. 1985) 
  

(discovery of evidence suppressed by the State permits 

consideration of previously asserted claim in a successive 

petition); Sockwell v. Maggio, 709 F.2d 341, 344 (5th. Cir. 

1983) (per curiam) ("[i]f a petitioner's unawareness of facts 

which might support a habeas application is excusable .. the 

subsequent filing is not an abuse of the writ") 

Applying this well-established line of reasoning to Mr. 

McCleskey's case, it is plain that his counsel did not 

"deliberately abandon" his Massiah claim. McCleskey acted 

neither "in bad faith" nor with a purpose "to vex, harass, or 

delay," Sanders v. United States, 373 U.S. at 18. Instead, his 
  

counsel was simply unable, even after a substantial 

investigation, to uncover the State's well-concealed facts. 

B. Warden Zant's Allegations of "Inexcusable Neglect" 
  

Warden Zant's alternative argument is advanced only 

48 

 



  

intermittently: at one point, Zant admits that "[t]he question 

raised in the instant case . . . is not one of inexcusable 

neglect but of deliberate abandonment of an issue." (Resp. Br. 

18). Yet throughout his argument on abuse, Zant enumerates 

ostensible "failures" and "oversights" that appear to amount to 

an indictment of inexcusable neglect. 

Warden Zant contends, for example, that Mr. McCleskey's 

counsel "never asked either the assistant district attorney or 

any of the police officers when Mr. Evans began cooperating with 

them." (Resp. Br. 20). He alleges that counsel's investigation 

"fell short of any kind of in depth inquiry.! (Id.). Counsel 

allegedly "did not subpoena any records regarding the informant 

claim.” (Resp. Br. 21). He argues that "counsel certainly had 

reason to know that there was a written statement of Offie Gene 

Evans and certainly should have made some effort to obtain that 

statement." (Resp. Br. 23). 

Warden Zant also rehearses the multiple attempts by John 

Turner, Mr. McCleskey's trial attorney, to obtain all statements 

made by McCleskey and concludes that they should have "put 

counsel on notice," (Resp. Br. 24) or been "a clear indication" 

that some kind of written statement existed. (Resp. Br. 25).21 

  

21 warden Zant also proffers a bizarre reading from a state 
habeas corpus finding addressing an unrelated issue, which 
mentions in passing "that defense counsel had access to the 
prosecutions' discovery file which included statements from all 
  

  

witnesses (except Evans) and investigative reports." (St. H. T. 
38) (emphasis added). In this quotation, Zant detects "a clear 
factual finding . . . that there was actually a written statement 
from Offie Evans." (Resp. Br. 32). 

49 

 



  

Finally, he asserts that "Petitioner had a legal basis for 

obtaining a copy of this statement in the first state habeas 

corpus proceeding," and that, consequently, there was "no valid 

reason why Petitioner could not have obtained this statement 

earlier." (Resp. Br. 33). 

None of these charges hold water. In this case, Mr. 

McCleskey's counsel admittedly had some basis for a suspicion 

that Offie Evans might have been acting under State authority. 

Far from neglecting his suspicions, however, Mr. Stroup, 

McCleskey's counsel, began a wide-ranging inquiry, first 

questioning officers of the Atlanta Bureau of Police Services 

about the possible use of informants, then speaking with two or 

three jailors at the Fulton County Jail to learn what they might 

know of Offie Evans' incarceration, then deposing Assistant 

District Attorney Russell Parker about a possible relationship 

between Evans and Atlanta police officers, and finally 

  

from Offie Evans." (Resp. Br. 32). 

Warden 2Zant's interpretation is faulty on two grounds. 
First, considering the plain meaning of the court's language, it 
is far more reasonable to read the court as saying (i) that the 
prosecutor's file included statements from all other trial 
witnesses except Offie Evans (since no written statement by 
Evans existed), rather than (ii) that the file contained 
statements from all witnesses (including Evans) and that defense 
counsel received all statements (except Evans'). 

  

  

Second, the state habeas court, to our knowledge, never 
received Evans' 2l-page statement. The statement is not part of 
the public record, and the State did not file any documents under 
seal in the state habeas proceeding. Consequently, Warden Zant's 
assertion that "the state habeas court itself also specifically 
realized that there was a written statement from Offie Evans" 
(Resp. Br. 33) has no foundation at all. 

50 

 



  

questioning Evans directly about the issue during state habeas 

corpus proceedings. 

None of the Fulton County jailors knew anything about such a 

relationship. District Attorney Parker testified: "I don't know 

of any instance that Offie Evans had worked for the Atlanta 

Police Department as an informant prior to his overhearing 

conversations at the Fulton County Jail." Having thus been 

assured by the prosecutor -- on behalf of himself and the Atlanta 

police -- and by the suspected informant, under cath in a state 

habeas hearing, that no informant relationship ever existed, it 

was hardly "inexcusable" of Mr. McCleskey's counsel, who was 

pursuing over twenty additional constitutional claims on his 

client's behalf, to conclude that Evans, appearances to the 

contrary notwithstanding, had not served as a State informant.22 

%* * * %* %* 

The State's alternative theory of "inexcusable neglect" 

depends on its argument that defense counsel should have obtained 

Evans' 21l-page written statement prior to 1987. Yet Mr. 

McCleskey demonstrated to the District Court during the July, 

1987 hearing that Mr. McCleskey's trial and habeas attorneys 

  

22 The State in its brief faulted Mr. Stroup for not 
speaking directly with Detectives Harris and Dorsey. Even were 
an attorney normally required to interview every police officer 
in a case to overcome a finding of "inexcusable neglect" -- 
something the law uniformly rejects =-- it was plainly 
demonstrated during the July and August, 1987 hearings that, had 
Stroup contacted these detectives, they would not have given him 
evidence that would have led to disclosure of the Massiah 
violation. Both repeatedly disclaimed all knowledge of the 
violation, even under oath. 

51 

 



  

repeatedly sought all such statements, but were denied access to 

then, and were even misled by State actors, perhaps 

inadvertently, about their existence. The Superior Court's 

observation during McCleskey's trial, for example, that "I don't 

know that we are talking about any written statement" obviously 

leads a reasonable counsel away from, not toward, the conclusion 
  

that some written statement existed.?23 

Most inexplicable of all, if there was in truth "no valid 

reason why Petitioner could not have obtained this statement 

earlier," why was it not produced? Why did the State repeatedly 

refuse to turn over Evans's statement, in response to (i) John 

Turner's pretrial motions,, (ii) Turner's oral request in mid- 

trial, (iii) Turner's demand on direct appeal, (iv) Robert 

Stroup's sweeping request of Russell Parker during state habeas 

corpus proceedings, or (v) questioning of Parker and Evans during 

state habeas proceedings? 

The question answers itself: the State sought for a decade 

to hide the existence of the statement and avoid its production 

to defense counsel. The record fully justifies the District 

Court's conclusion "that petitioner's counsel's failure to 

discover Evans' written statement was not inexcusable neglect." 

(R3-22-25, citing R4- 118-119). 
Ld 
  

23 The trial court's follow-up remark that "[t]his is not 
a statement of the defendant," was doubly misleading. Although 
the remark was literally true =-- in retrospect, the court 
apparently was referring to the typewritten statement by Offie 
Evans, which was not a direct statement by McCleskey -- Evans's 
statement in fact contained Evans's account of numerous verbatim 
exchanges with, and purported admissions by, Mr. McCleskey. 

52 

 



  

Il. 

THE DISTRICT COURT PROPERLY FOUND THAT ATLANTA 
POLICE MISCONDUCT VIOLATED WARREN McCLESKEY'S SIXTH 
AMENDMENT RIGHTS UNDER MASSTIAH v. UNITED STATES 
  

Warden Zant contends both that the District Court erred in 

its factfindings on Massiah and that it applied an incorrect 

legal standard. Examination of the District Court's order 

reveals no error. 

A. The District Court's Factual Findings Were Not Clearly 
Erroneous Under Rule 52 
  

As noted above, the District Court decided. this case after a 

meticulous weighing of the evidence. The court first heard 

testimony from witnesses on July 8 and 9, 1987, and then allowed 

Warden Zant over a month to assemble additional evidence for an 

August 10, 1987 rebuttal hearing. (R5-163-165). 

At the conclusion of Zant's rebuttal, the District Court 

invited the parties to submit briefs on the logic and import of 

the testimony presented to the court. {R6~-120~121). Only after 

carefully considering the parties' alternative views of the 

evidence did the court reject Warden Zant's contentions, finding 

Mr. McCleskey's view of the facts was the more plausible. 

The key factual issue, the District Court concluded, was 

whether or not some state agent had arranged to move Evans to the 

cell adjoining McCleskey's in an effort to obtain incriminating 

evidence, and whether some police office had recruited Evans to 

serve as the State's agent. (R3-22- 20-21). The court observed 

that there was some evidence in the record which might support 

B83 

 



  

both sides of the issue, but "after carefully considering the 

substance of [Ulysses] Worthy's testimony, his demeanor, and the 

other relevant evidence in the case," the court concluded that 

Atlanta police authorities had arranged for the move of Evans to 

the cell adjacent to McCleskey. (R3-22-21). 

The court weighed, but rejected, two alternative hypotheses 

advanced by Zant, (R3-22-23), finding 

that petitioner has established by a preponderance of 
the evidence the following sequence of events: Evans 
was not originally in the cell adjoining McCleskey's; 
prior to July 9, 1978 he was moved, pursuant to a 
request approved by Worthy, to the adjoining cell for 
the purpose of gathering incriminating information; 
Evans was probably coached in how to approach McCleskey 
and given critical facts unknown to the general 
public; Evans engaged McCleskey in conversation and 
eavesdropped on McCleskey's conversations with DuPree; 
and Evans reported what he had heard between July 9 and 
July 23, 1978 to Assistant District Attorney Parker on 
July 12. 

(R3-22-23). Zant now contends that the District Court's finding 

that Evans was moved is clearly erroneous. (Resp. Br. 70-71). 

The evidence before the District Court has been summarized 

in our Statement of Facts at pages 14-29 supra. On this record, 

Zant simply does not meet his heavy burden of showing clear error 

under Rule 52. The Supreme Court's decision in Anderson v. City 
  

of Bessemer City, 470 U.S. 564, 574 (1985), states the applicable 
  

rule: 

If the district court's account of the evidence is 
plausible in light of the record viewed in its 
entirety, the court of appeals may not reverse it even 
though convinced that had it been sitting as the trier 
of fact, it would have weighed the evidence 
differently. Where there are two permissible views of 
the evidence, the fact-finder's choice between them 
cannot be clearly erroneous. United States v. Yellow 

  

54 

 



  

gab Co.; 338 U.S. 338, 342,70 S.Ct. 177, 179, 94 1L.E4. 

150 (1949) .... This is so even when the district 
court's findings do not rest on credibility 
determinations, but are based instead on physical or 
documentary evidence or inferences from other facts. . 
. + When findings are based on determinations 
regarding the credibility of witnesses, Rule 52(a) 
demands even greater deference to the trial court's 
findings; for only the trial judge can be aware of the 
variations in demeanor and tone of voice that bear so 
heavily on the listener's understanding of and belief 
in what is said. 

Here, the District Court did make factual findings based 

upon its assessment of the credibility of the witnesses appearing 

before it -- primarily Captain Worthy of the Fulton County 

Sheriff's Department and detective Dorsey of the Atlanta Bureau 

of Police Services =-- and upon the documentary evidence 

introduced. On that basis, the court made a choice among the 

alternate theories of the evidence. The court credited the 

testimony of Captain Worthy, that an "officer on the case" had 

directed Worthy to move Offie Evans to the cell adjacent to Mr. 

McCleskey's. Where Detective Dorsey's testimony was in conflict, 

the District Court rejected Dorsey's testimony, concluding that 

Dorsey had "an obvious interest" in concealing his arrangement 

with Evans. (R3-22-22). By contrast, Worthy "had no apparent 

interest or bias that would explain any conscious deception." 

This is precisely the sort of credibility choice that the 

Supreme Court has held cannot be clearly erroneous. 

The District Court's determination to believe Worthy and to 

reject the testimony of Dorsey, moreover, is supported by far 

more than its assessment of the demeanor of these witnesses. The 

District Court's confidence in Worthy's unrehearsed testimony of 

55 

 



  

July 9 is buttressed by the remarkable consistency of that 

testimony with other important items of evidence before the 

court. 

(1) In his July 9, 1987, testimony, Worthy singled out 

Sidney Dorsey as one of the officers who had met with Offie 

Evans. (R5-148). This identification meshed perfectly with 

Evans's own account, during his 1981 state habeas testimony, of 

an initial meeting between himself and Detective Dorsey, in the 

Fulton County Jail, prior to Evans' first meeting with prosecutor 

Parker. 

(2) Worthy's testimony that Evans had been recruited as an 

informant by Detective Dorsey or another Atlanta officer was 

consistent with evidence that Evans had in fact served as an 

informant in the past, not only for federal agents, but 

specifically for Sidney Dorsey as well. {R5-52, 53; R6-31, 82), 

(3) The only police officer who Worthy recalled by name was 

Sidney Dorsey. This recollection is consistent with Dorsey's 

testimony that he alone, among Atlanta police officers assigned 

to the Schlatt case, had previously known Evans and used him as 

an informant. (R5-49, 53). 

(4) Worthy's July 9th account of an initial meeting with 

Evans, followed by a move of Evans to the cell adjacent to 

McCleskey, explains an apparently oddity in Evans' 2l-page 

written statement. Although that statement recites that Evans 

has been in a cell next to Mr. McCleskey "since July 3, 1978"-- 

the day Evans was first taken into custody -- it is absolutely 

56 

 



  

silent concerning any contacts with McCleskey prior to July 8. 

Only on July 9th, as the statement indicates, did Evans first 

introduce himself to McCleskey. This five-day period of silence 

by the voluble Mr. Evans seems highly implausible; it is fully 

explained, however, if Evans was not moved until several days 

after his initial incarceration =-- just as Ulysses Worthy 

recalled in his federal testimony.?24 

There are substantial grounds, moreover, for the District 

Court's rejection of Detective Dorsey's contrary testimony-- 

apart from Dorsey's demeanor. It defies common sense to believe 

that Detective Dorsey, who had been assigned to investigate the 

shooting death of a fellow orticer, who had a prior informant 

relationship with Offie Evans (R5-53), and who had relied on that 

relationship in other cases (R5- 49-53), would not remember 

speaking to his special informant -- whom he knew to be in Fulton 

County Jail and who ultimately provided the critical testimony 

that pinned the death of Officer Schlatt squarely on Warren 

McCleskey. 

Offie Evans himself unwittingly undercut Dorsey's story in 

1981, when he testified during state habeas proceedings that he 

  

24 As to the State's heavy reliance upon inconsistencies 
between Worthy's initial testimony on July 9 and his subsequent 
statements on August 10, 1987, .the court noted the likely 
motivation for Worthy's change in certain portions of his 
testimony -- in the interim, he had seen newspaper accounts 
detailing the legal significance of his testimony and he had been 
twice interviewed by the Attorney General. The District Court 
cannot, as a principle of law, be faulted for finding more 
reliable Worthy's initial testimony, which was untainted by these 
intervening influences. 

57 

 



  

had met with Dorsey, to discuss the Schlatt case, prior to his 

later meeting with Russell Parker. At this initial meeting, 

Evans revealed that Dorsey had promised to "speak a word for him" 

with federal officers investigating the pending criminal charges 

against Evans. When confronted with this testimony, Dorsey's 

only response was to deny the meeting and accuse Evans of lying. 

(R6-87) . 

On this record, the court's findings, which accept Worthy's 

unrehearsed testimony of July 9 and reject Dorsey's denials, are 

unimpeachable. 

Warden Zant's has also argued that the District Court's 

entire opinion rests only upon the testimony of Ulysses Worthy. 

(Resp. Br. 43). As we have shown, the charge simply isn't so. 

The District Court carefully drew upon documentary evidence, 

looking not only to Offie Evans's 1981 testimony but to his 21- 

page typewritten statement to Atlanta authorities. That 

statement, as we have shown, provides strong internal support for 

the conclusion that Evans was acting as an agent of the Atlanta 

police. In it, Offie Evans brags about the deception through 

which he gradually gained the trust of Mr. McCleskey. As the 

District Court found: 

Evans repeatedly lied to McCleskey, telling him that 
McCleskey's co-defendant, Ben Wright, was Evans’ 
nephew; that Evans' name was Charles; that Ben had told 
Evans about McCleskey; that Evans had seen Ben 
recently; that Ben was accusing McCleskey of falsely 
identifying Ben as the "trigger man" in the robbery; 
that Evans "used to stick up with Ben, too;" that Ben 
told Evans that McCleskey shot Officer Schlatt; and 
that Evans was supposed to have been in on the robbery 
himself. 

58 

 



  

(R3-22-20). 23 

Adopting another tack, Zant stresses that the State's 

witnesses testified "consistently" that Evans was not moved, and 

that they had no knowledge that Evans was an informant when 

placed in the cell. (Resp. Br. 60). Yet the District Court's 

decision, after carefully considering the opportunity each 

witness had to know the relevant events, properly discounted 

their ignorance of the unconstitutional arrangement. (R3-22-22). 

For example, the District Court did not reject prosecutor Russell 

Parker's testimony; it found instead that Parker had no reason to 

know about the move, making his testimony on the point 

irrelevant. (R3-22-22). 

Fulton County Deputy Carter Hamilton's testimony was 

assessed in a similar light. Because Hamilton's knowledge was 

limited to persons and events on the first floor of the jail 

(R6-72, 76), he had no basis to know whether Offie Evans had been 

initially housed in another part of the jail. (R4-177; R6-74, 

  

25 gzant contends that the finding that Evans was "given 
critical facts unknown to the general public" was clearly 
erroneous. The District Court's conclusion is, however, a proper 
inference from the facts before the court, most notably, that 
Evans knew and asserted to McCleskey that he and his co- 
defendants had been telling Atlanta police that Ben Wright was 
the triggerman. 

Even were the foundation for this inference more shaky, it 
is not critical to the court's ultimate decision. The State does 
not contest the court's finding that Evans was probably coached 
in how to approach McCleskey; whether or not he was at the same 
time given information not generally known to the public is 
surplusage. That coaching itself is strong evidence of police 
involvement in Evans' interrogation of McCleskey. 

59 

 



  

75). Hamilton's lack of knowledge proves nothing about whether a 

secret deal was made; it only proves he was not a party to it. 

The denials of other Atlanta police officers, save Dorsey, 

are similarly irrelevant. Dorsey testified that he had not 

shared a word of his informant relationship with other Atlanta 

police officers; it was a one-on-one relationship. (R5-49, 53). 

As a result, other police officers simply had no knowledge of the 

arrangement. 2° 

The unanimous testimony by State's witnesses that they had 

no knowledge of a move is, on close scrutiny, unsurprising and 

beside the point. Zant cannot disprove the secret deal between 

Offie Evans and Detective Dorsey by proffering a series of 

witnesses who were not privy to it. Warden Zant's "numbers game" 

is a fallacious one, and the District Court's carefully 

considered factfindings are not clearly erroneous. 

B. The District Court's Applied The Proper Legal 
Standards To The Facts 

Warden Zant's alternative argument is that the District 

Court's judgment is "incorrect legally as well as factually," 

  

26 Detective Welcome Harris' testimony presents one point 
of conflict with the other evidence. Office Evans testified in 
1981 that he met with both Detective Harris and Detective Dorsey 
prior to meeting with Russell Parker, and that it was on this 
occasion that Dorsey said he would put in a good word for Evans 
on his federal escape charge. (Fed. Ex. 16, at 119-22.) Whether 
Harris as well as Dorsey was lying about this meeting is 
irrelevant to Mr. McCleskey's constitutional claim. If Harris 
was not present at the initial meeting between Dorsey and Evans, 

this is at most a minor failure of recollection on Evans' part; 
if Harris was present and declined to recall that fact, it 
indicates simply a cover-up by two police officers rather than 
one. 

60 

 



  

since "there is no evidence of any bargain for the assistance of 

Mr. Evans and no evidence of an agreement." (Resp. Br. 71). 

Zant's contention rests on the premise that a Massiah violation 

requires a showing of "consideration" as a necessary element in 

proving an agency relationship. 

There is simply no basis in law for such an assertion.?2’ As 

his only authority, Zant points to this Circuit's decision in 

  

Lightbourne v. Dugger, 829 F.2d 1012 (11th Cir. 1987), which, he 

contends, "actually implies" this requirement. (Resp. Br. 42). 

Lightbourne implies nc such thing. 
  

Lightbourne does cite with approval the Florida Supreme 
  

Court's characterization of the requisites of a Massiah claim: 

Without some promise or guarantee of compensation, some 
overt scheme in which the state took part, or some 
other evidence of prearrangement aimed at discovering 
incriminating information we are unwilling to elevate 
the state's actions in this case to an agency 
relationship with the informant Chavers. 

829 F.2d at 1019 (emphasis added). This list of disjunctive 

criteria stands for nothing more than the proposition that one or 

another of several possible indices of agency =-- a promise of 
  

compensation, an overt scheme, or evidence of prearrangement-- 

  

must be shown. It holds consideration to be sufficient proof of 

agency, but not necessary proof. 
  

Lightbourne aside, a review of Supreme Court precedent on 
  

Massiah shows no requirement of a "bargain" as a part of a 

  

27 It is, of course, black letter law that consideration 
is not required to establish an agency relationship. 
Restatement of the Law, 2d, Agency, 2nd §16. 
  

61 

 



  

showing of an informant relationship. See United States v. Henry, 
  

447 U.S. 264 (1980); Maine v. Moulton, 474 U.S. 159 (1985). 
  

Massiah itself makes no mention whatsoever of consideration. 

While a number of the cases, such as Henry, did involve a paid 

agent, nothing in the cases indicates that agency can only be 

shown by proof of a payment to the informant. 

Warden Zant's collateral argument, that there was no overt 

"agreement" between Offie Evans and Detective Dorsey, is likewise 

without merit. While it is, of course, necessary that "an 

informant cooperate with the scheme, the District Court's 

findings in this case amply support that element. Indeed, Offie 

Evans' agreement to participate in Detective Dorsey's scheme is 

fully supported by the extraordinary series of lies he told to 

gain McCleskey's confidence, and the persistence of his 

questioning -- all starkly revealed in his 2l-page statement to 

Atlanta authorities. Evans' agreement, in short, is manifest th 

his own typewritten account of his active participation in the 

enterprise. 

The secret investigative techniques employed here are 

precisely what the Supreme Court has condemned as recently 

Kuhlmann v. Wilson, 477 U.S. 436 (1986). Offie Evans, as his own 

dramatic account demonstrates, "took some action, beyond merely 

listening, that was designed deliberately to elicit incriminating 

remarks." Kuhlmann v. Wilson, supra, 477 U.S. at 459. Detective 
  

Dorsey and Evans carried out a scheme ignored the "vast 

difference between placing an 'ear' in the suspect's cell and 

62 

 



  

placing a voice in the cell to encourage conversation for the 

fear! to record." ld. at 46) (Burger, Ch.J., concurring). His 

relentless execution of Detective Dorsey's illegal plan of action 

plainly violated Warren McCleskey's Sixth Amendment rights. 

IIT. 

THE DISTRICT COURT CORRECTLY FOUND THAT 
THE MASSTAH VIOLATION PROVEN IN MR. McCLESKEY'S 
CASE WAS NOT HARMLESS BEYOND A REASONABLE DOUBT 

Warden Zant also maintains that the Massiah violation, on 

this record, was harmless beyond a reasonable doubt. 

The essence of Zant's argument is an appeal to "precedent:" 

because this Court previously found that a violation of Giglio v. 
  

United States =-- in which Offie Evans was earlier implicated-- 
  

was harmless error, the Massiah violation subsequently uncovered 

by Mr. McCleskey likewise must be harmless error. 

The fallacy of this argument is plain. Testimony tainted by 

a Massiah violation is excluded entirely from jury deliberation; 

a Giglio violation implicates nothing more than improper 

exclusion of impeachment evidence. = The "materiality" analysis 

which this Court applied to Mr. McCleskey's Giglio violation is 

inapplicable to his Massiah claim. 

Here, Massiah dictates consequences that are dramatically 

different from any consequences under Giglio. It is one thing 

for McCleskey's jury to learn of one additional motive Evans 

might have for testifying that McCleskey had admitted shooting 

Officer Schlatt -- that a detective would "speak a word for him." 

63 

 



  

It is quite another thing for the jury never to have heard 

Evans's testimony at all. This distinction alone undermines 

Warden Zant's argument. 

Moreover, in analyzing the "harmlessness" of Mr. 

McCleskey's Giglio violation, this Court focused upon the 

independent impeachment evidence available to the jury, and upon 

the independent circumstantial evidence of gquilt.28 This 

Court's explicitly cited United States v. Anderson, 574 F.2d 
  

1347 (5th Cir. 1978), which discusses the materiality standard 

applicable to a Giglio claim. 

An intervening Supreme Court case, however, illustrates that 

a "materiality" analysis is not an appropriate inquiry as part of 

assessing the harmlessness of a Sixth Amendment Massiah claim. 

In Satterwhite v. Texas, ~~ U.S. _, 100 L.B4.2d4 284 (1988), 

the Supreme Court reversed a lower court's finding of harmless 

error in the context of a Sixth Amendment violation. The Supreme 

Court held that it was not harmless error for a jury to have 

heard the testimony of a psychologist who interviewed the 

  

28 This Court's prior decision only considered the 
materiality of the additional impeachment evidence: 

Thus, although Evans' testimony might well be 
regarded as important in certain respects, 
the corroboration of that testimony was such 
that the revelation of the Giglio promise 
would not reasonably affect the jury's 
assessment of his credibility and therefore 
would have had no effect on the jury's 
decision. 

64 

 



  

defendant in violation of a defendant's Sixth Amendment right to 

counsel. 

The Court rejected a focus upon the independent evidence of 

impeachment and guilt which are a part of the Giglio 

"materiality" analysis, and instead followed Chapman Vv. 
  

California, 386 U.S. 18 (1967), reasoning that the relevant 
  

inquiry is not 

whether the legally admitted evidence was such that the 
minds of an average jury would have found the State's 
case [on future dangerousness] sufficient . . . even if 
Dr. Grigson's testimony had not been admitted. 
[citation omitted] The question . . . is not whether 
the legally admitted evidence was sufficient to 
support the death sentence, we assume it was, but 
rather, whether the State has proved "beyond a 
reasonable doubt that the error complained of did not 
contribute to the verdict obtained."Chapman, 386 U.S. 
at 24, 87 S.Ct. at 828 (emphasis added). 

  

  

  

  

100 L.Ed.24 at. 295. 

The Satterwhite Court noted a wealth of other, legally- 
  

admitted evidence that supported the State's verdict in that 

case: 

The evidence introduced at sentencing showed that, in 
addition to his conviction in this case, Satterwhite 
had four prior convictions of crime ranging from 
aggravated assault to armed robbery. Eight police 
officers testified that Satterwhite's reputation for 
being a peaceful and law abiding citizen was bad, and 
Satterwhite's mother's former husband testified that 
Satterwhite once shot him during an argument. The 
State also introduced the testimony of Bexar County 
psychologist Betty Lou Schroeder. Dr. Schroeder 
testified that she found Satterwhite to be a "cunning 
individual" and a "user of people," with an inability 
to feel empathy or guilt. She testified that in her 
opinion, Satterwhite would be a continuing threat to 
society through acts of criminal violence. 

Id., 295-296. 

65 

 



  

Despite this powerful cumulative evidence of the defendant's 

violent character, the Supreme Court held that, because Dr. 

Grigson was the last witness, because Grigson was the only 

licensed physician to testify, and because the district attorney 

relied upon his testimony and conclusions in closing argument, it 

was impossible to say beyond a reasonable doubt that his 

testimony did not influence the jury. Id. at 296. 

As with the witness in Satterwhite, Evans's testimony at 
  

Mr. McCleskey's trial made certain unique contributions to the 

State's case. Evans was one of the last of the State's 

witnesses, and, unlike co-defendant Ben Wright, he had no 

apparent motive to lie. The prosecutor used Evans' testimony as 

the final element in his "malice" argument to the jury: 

and just like Offie Evans says, it doesn't make any 
difference if there had been a dozen policemen come in 
there, he was going to shoot his way out. He didn't 
have to do that, he could have run out the side 
entrance, he could have given up, he could have 
concealed himself like he said he tried to do under one 
of the couches and just hid there. He could have done 
that and let them find him, here I am, peekaboo. He 
deliberately killed that officer on purpose. I can 
guess what his purpose was, I am sure you can guess 
what it was, too. He is going to be a big man and kill 
a police officer and get away with it. That is malice. 

(Tr. T. 974-975). 

This Circuit has recently applied a Satterwhite/Chapman 
  

analysis to a Sixth Amendment Massiah violation in Brown v. 
  

bugger, 831 F.24 1347 (llth Cir. 1987). As the Court noted 

therein, the applicable harmless error standard 

presumes prejudice, and places the burden on 
respondent to prove beyond a reasonable doubt that the 
errors did not contribute to the verdict. [citations 

66 

 



  

omitted] If there remains a possibility that the 
constitutionally-proscribed evidence impacted on the 
ultimate decisional process of the Jury, if the 
beneficiary of the error cannot refute that possibility 
beyond all reasonable doubt, constitutional errors can 
never be deemed harmless. 

831 F.2d at 1554. 

Thus, in Mr. McCleskey's case, the proper harmless error 

analysis looks less to the adequacy of the independent evidence 

which was a part of the State's case than to whether it can be 

said, beyond a reasonable doubt, that Evans' testimony itself did 

not contribute to the jury's verdict. 
  

Even if the appropriate analysis called for a weighing of 

the State's independent evidence on the murder charge, because of 

the very flimsiness of that other evidence -- (i) the 

inconclusive testimony of Ben Wright's girlfriend about who was 

carrying the murder weapon and (ii) the {nherertly compromised 

testimony of co-defendant Ben Wright -- it cannot be said that 

the State has met its burden, beyond a reasonable doubt, of 

showing that Offie Evans' testimony was harmless. 

67 

 



  

IV. 

THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION 

IN DENYING WARDEN ZANT'S RULE 60(b) MOTION FOR 

RELIEF FROM JUDGMENT 

Warden Zant's last-ditch defense is his argument under Rule 

60(b) that the District Court abused its discretion by denying 

his motion to alter or amend the judgment. When the District 

Court's factual findings are properly considered, no abuse of 

discretion can be found. 

A. Zant Failed To Show The Evidence Is "Newly Discovered" 
  

The District Court found that Offie Evans' testimony, the 

evidence which Zant seeks to present, is not newly discovered. 

(R1Supp-40-5.) Zant concedes that the District Court is correct, 

according to the "traditional definition." (Resp. Br. 85). Under 

the law of this Circuit, no further inquiry need be made. 

Scutieri v. Paige, 808 F.2d 785 (11th Cir. 1987). 

B. Zant Failed To Exercise "Due Diligence" 
  

Zant has no better response to the District Court's finding 

that he "did not make any efforts to track down Offie Evans 

during the summer of 1987." (R1lSupp.=-40-7). Warden Zant's only 

excuse is to claim that he relied on the efforts made by Mr. 

McCleskey and his counsel to locate Evans in June and early July 

of -1987. If anything, however, those efforts demonstrated that 

Offie Evans had been in the Atlanta area and had been in direct 

contact with two of his sisters (whose addresses and telephone 

numbers were provided to Zant by McCleskey). If Zant truly had 

68 

 



  

wanted to present Offie Evans's testimony in 1987, why didn't he 

take a single step -- even a telephone call =-- to attempt to 

contact him? 

The District Court granted Zant a month between the July and 

August federal hearings precisely for such a purpose -- to give 

Zant time to locate all those witnesses whose testimony Zant 

believed critical to his case. According to his own admission, 

Zant did absolutely nothing in that month to determine whether 

Evans might be available for the August hearing. 

Zant now tries to deflect attention from his own failure by 

pointing out the resources made available to Mr. McCleskey by 

the District Court. zant “fails to clarify for this Court, 

however, that those resources were made available for a single 

day only, while counsel for Mr. McCleskey were on trial. (R1-13- 

1). Zant, by contrast, had nearly a month not only to look 

himself, but to mobilize the investigative and law enforcement 

resources of Fulton County and the State of Georgia, including 

Russell Parker and Detective Dorsey -- both of whom had "special 

relationships" with Offie Evans. 

The chief reason Warden Zant didn't find Offie Evans, we 

submit, is that he never looked. His strategy in 1987 plainly 

did not include the use of Offie Evans' testimony. Only after 

his initial strategy failed did Zant seize upon Rule 60(b). That 

rule however, does not exist merely to give unsuccessful 

litigants a second try. It should be available only to those who 

meet its stringent conditions. Zant has met none of them. 

69 

 



  

Cc. There Is No Likelihood That The Proffered 
Evidence Would Produce A Different Result 
  

The most fundamental flaw in Zant's Rule 60(b) motion, is 

not his lack of diligence but the manifest untrustworthiness of 

Offie Evans's testimony. Evans's lack of credibility is clearly 

revealed in his deposition, proffered by Zant in support of his 

Rule 60(b) motion. After reviewing that deposition, the 

District Court correctly found that 

[tlhe credibility or believability problems with his 
testimony are evident. He has a strong motivation for 
saying he was not an informant, not only because of 
recriminations from his associates, but also in order 
to stay in favor with the police and prosecutors who 
have used him to testify in the past. The numerous 
contradictions within his deposition also lead the 
court to the conclusion that his testimony would not be 
believable. See Petitioner's Brief in Response to 
Respondent's Supplement to Rule 60 (b) Motion. 2 

.. Therefore, Evans' testimony is not likely to change 
the credibility of Worthy's testimony or the fact that 
petitioner showed by a preponderance of the evidence 
that a Massiah violation had occurred. 

(R1Supp.=-40-9). This Court should not disturb that finding. 

The District Court likewise ruled that Warden Zant had shown 

no exceptional circumstances outside those discussed in the Rule 

  

29 Evans' 1988 deposition testimony showed at least 15 
substantial inconsistencies between statements therein and either 
other statements in the same deposition, earlier statements of 
Evans, or statement of the other witnesses at this habeas 
proceeding. (Supp.R.1-38-8 through 14) That deposition 
testimony also showed Evans in at least four other miscellaneous 
lies (Supp.R.1-38-14 through 16), and a remarkable ability to 
recall what it was convenient to recall, but not recall other 
substantial details. (Supp.R.1-38-16 through 17) A review of 
that testimony makes evident that Evans is unable to distinguish 
truth from fiction. 

70 

 



  

60(b) (2) motion that would justify relief under Rule 60(b) (6). 

No other finding could have been justified on the factual record 

presented by Zant. Had Offie Evans been a credible witness with 

a convincing explanation of all the contrary evidence, perhaps 

the District Court might have exercised its discretion to hear 

him. As it was, he is a well-worn and all-too-predictable 

quantity, eager to mitigate the new criminal charges he faced in 

1988 by, once again, telling the police or prosecutors anything 

they wanted to hear. 

Evans had already told his story three different ways-- 

first to Russell Parker in August of 1978; then later, during Mr. 

McCleskey's trial; still later, during state habeas corpus 

proceedings. By the time he tried out a fourth version of the 

facts during his 1988 deposition, Evans found himself caught in a 

mesh of lies and contradictions. 

The District Court's order denying Rule 60(b) relief is 

fully warranted on this record. 

71 

 



  

CONCLUSION 
  

For all of the reasons set forth above, the judgment of the 

District Court should be affirmed on both appeals. 

$ Dated: June 26, 1989 Respectfully submitted, 

i ROBERT H. STROUP 

141 Walton Street 
Atlanta, Georgia 30303 
(404) 522-8500 

JULIUS L. CHAMBERS 
JOHN CHARLES BOGER 

99 Hudson Street 
New York, New York 10013 
(212) 219-1900 

ATTORNEYS FOR PETITIONER-APPELLEE 
WARREN McCLESKEY 

BY: 
  

72 

 



  

CERTIFICATE OF SERVICE 

I hereby certify that I am one of the attorneys for 

petitioner-appellee Warren McCleskey on this appeal, and that I 

am admitted to the bar of this Court. I served the annexed Brief 

for Petitioner-Appellee on respondent-appellant Walter D. Zant by 

placing copies in the United States mail, first class mail, 

postage prepaid, addressed as follows: 

Mary Beth Westmoreland, Esq. 
Senior Assistant Attorney General 
132 State Judicial Building 
40 Capitol Square, S.W. 
tlanta, Georgia 30334 

All parties required to be served have been served. Done 

this ___ day of June, 1989. 

  

John Charles Boger 

73 

 



 



  

Certificate of Service 
  

I, STEVEN M. GOLDSTEIN, hereby certify that the foregoing 

brief was served on counsel for the parties herein by mailing a 

copy, first class mail, to counsel for respondent, MARY BETH 

WESTMORELAND, at 132 State Judicial Building, 40 Capitol Square 

S.W., Atlanta, Georgia 30334, and to counsel for petitioner, 

JOHN C. BOGER, at 99 Hudson Street, 16th Floor, New York, New 

York 10013, this day of December, 1989. 

  

STEVEN M. GOLDSTEIN 

 



  

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December 2, 1989 

Robert H. Stroup 
141 Walton Street 
Atlanta, Georgia 30303 

Warren McCleskey v. Walter D. Zant, 
No. 88-8085 and 89-8085 
  

Dear Bob: 

Enclosed are the first !! 22 !! pages of our l5-page 

rehearing petition. Moreover, this draft doesn't yet include 

what I would estimate will be a 3-page legal section on harmless 

error. This draft nonetheless represents a half-day to edit this 

monster down to size. What I have concluded, as you have 

doubtless guessed by now, is that we should ask the Court for 

leave to file a petition of 25 pages. It seems to me impossible 

to provide the necessary factual picture without spend 12-13 

pages. Think about it once you've read this through. 

You may also have questions about the draft's tone, 

which gets somewhat blunt at times. If you do (and I've checked 

the most heated sentences with George, who gives them his 

imprimatur), you might call on Mr. Myer, our reliable mutual 

friend and paragon of attorney conduct, to determine whether our 

citiations for contempt are likely ever to be lifted once this 

petition is filed. (As Warren says in his letters, "Just 

joking. ") 

I'11 be out of town until Tuesday afternoon after 4:00 

P.M. Why don't you call me at your convenience late Tuesday or 

early Wednesday. Best regards. 

Sincerely, 

J§n Charles Boger 

 



  

DRAFT: 12/02/89 

IN THE UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT 

Nos. 88-8085 

89-8085 

  

WARREN McCLESKEY, 

Petitioner-Appellee, 

-against- 

WALTER D. ZANT, Superintendent, 
Georgia Diagnostic & Classification 
Center, 

Respondent-Appellant. 

  

On Appeal From The United States District Court 
For The Northern District Of Georgia 

Atlanta Division 

  

SUGGESTION FOR REHEARING IN BANC ON BEHALF OF 
PETITIONER-APPELLEE WARREN McCLESKEY 

  

Petitioner-appellant Warren McCleskey, by his undersigned 

counsel, respectfully requests the full Court of Appeals to 

rehear his appeal in banc, pursuant to Rule 35 of the Federal 

Rules of Appellate Procedure. The judgment of the panel was 

rendered on November 22, 1989. This suggestion is being filed 

within 20 days of the date of that judgment. 

A. INTRODUCTION 
  

This appeal centers on a violation of Massiah v. United 
  

States, 377 U.S. 201 (1964) -- the seminal Supreme Court decision 

condemning surreptitious State questioning of a criminal 

defendant already in custody or under indictment. The District 

 



  

Court, after three days of evidentiary hearings, found (i) that 

State officials had clearly violated the rule in Massiah in this 

case, (ii) that the fruits of the violation, an ostensible 

"confession" made by Mr. McCleskey to the State's jailhouse 

informant -- was a critical component of the State's case at 

trial, and (iii) that McCleskey was consequently entitled to 

habeas relief. 

A panel of this Court has reversed that judgment on appeal. 

The panel did not reach the merits of the Massiah claim. 

Instead, it held that Mr. McCleskey's failure to assert the 

Massiah claim in his initial federal petition constituted an 

abuse of the writ of habeas corpus; and (ii) that the State's use 

of the unconstitutional evidence was harmless beyond a reasonable 

doubt. 

Since both of these holdings contravene well-established 

Supreme Court and circuit precedent, Mr. McCleskey suggests that 

the full Court should rehear his appeal in banc. 

B. The Facts Underqgirding McCleskey's Massiah Claim 
  

At the heart of this appeal lies evidence of a successful 

scheme by State officials to procure an illegal confession. 

According to the express findings of the District Court, one or 

more officers of the Atlanta, Georgia, Bureau of Police Services 

entered into a conspiracy with a known jailhouse informant, Offie 

 



  

Evans, to secure a confession from Mr. McCleskey.l 

To accomplish their mission, these rogue officers obtained 

the cooperation of a Fulton County, Georgia jailor, who agreed to 

move Offie Evans, the informant, from another portion of the 

Fulton County Jail to the cell directly adjacent to Warren 

McCleskey's. The officer[s] explicitly instructed the informant 

to question McCleskey about the crime. They gave him crucial 

facts about the case not known to the public. 

A remarkable, 2l-page written narrative -- hidden by the 

State from 1978, accidentally revealed only during McCleskey's 

1987 habeas proceedings -- demonstrates that Evans did just as 

State officials requested: he initiated a three-day series of 

conversations with McCleskey about the crime; he repeated lied to 

McCleskey about his own identity, about his knowledge of the 

crime, about his relationship with McCleskey's co-defendant, and 

about details of the police investigation. Evans skillfully 

allayed McCleskey's suspicions and drew him out on the details of 

the crime, especially the identity of the triggerman. 

His mission accomplished, informant Evans then secretly 

notified his State agents, who summoned an Assistant District 

Attorney and other officers for a jailhouse interview. To perfect 

their scheme, the guilty officer[s] conspired to cover up their 

  

H Their motive was to substantiate capital murder charges 

against McCleskey, one of the four co-defendants who had captured 

after an armed robbery. All four defendants had clearly been 

participants in the armed robbery; the police had no clear 

evidence, however, on which defendant had fatally shot policeman 

Frank Schlatt as he arrived at the robbery scene. 

3 

 



  
1 
4 

| 
§ 
i 
1 

misconduct not only from defense counsel, but from other, 

unsuspecting State officials working on the case as well. 

Informant Evans freely cooperated in this coverup, lying 

over and over again -- first during Mr. McCleskey's trial in 

1978 -- where he told the jury that McCleskey had confessed to 

the police killing and bragged that he would have killed a dozen 

officers if necessary -- then again during his state habeas 

corpus proceedings in 1981, and finally, even after the 

conspiracy had been uncovered, during his federal deposition in 

19088. As the web of deception began to unravel during 

McCleskey's 1987 federal hearing, moreover, one or more of the 

Atlanta police officers committed perjury during the federal 

habeas proceedings in a vain attempt to protect both their 

coverup and the underlying Massiah violation. 

The factual findings of the District Court fully support 

each of these basic points. 2 

C. The Issue of Abuse Of The Writ 
  

31. Counsel's Investigation Of A Possible Massiah 

Violation 
  

  

At the outset of state habeas proceedings in 1981, although 

lacking anything more than an unsubstantiated suspicion of a 

  

2 After extensive findings on the sequence of events and 

the credibility of all the principal witnesses, (see R3 22- 15- 

31), the District Court summarized its findings as follows: 

"Unfortunately, one or more of those investigating Officer 

Schlatt's murder stepped out of line. Determined to avenge his 

death the investigator(s) violated clearly-established case law 

« «+ +» +» In so doing, the investigator(s) ignored the rule of law 

that Officer Schlatt gave his life in protecting and thereby 

tainted the prosecution of his killer." (R3- 31). 

4 

 



  

Massiah violation, counsel for Mr. McCleskey nonetheless included 

a Massiah «claim, as a precaution, among the twenty-two 
  

constitutional challenges asserted in the McCleskey's state 

petition. Attorney Robert Stroup followed up his allegation with 

an extensive investigation of the claim. He first met with 

members of the Atlanta police force (whom he had represented in 

unrelated Title VII cases ) for inside advice on the best way to 

uncover evidence of an illegal, jailhouse informant. Armed with 

their advice, he interviewed a number of key Jjailors at the 

Fulton County Jail. None of these jail officials knew anything 

about possible police misconduct in McCleskey's case. Attorney 

Stroup nonetheless persevered, tracing down a former jail 

official, Bobby Edwards, who had been in charge of all inmate 

cell placements at the time Mr. McCleskey had been incarcerated. 

By 1981, Mr. Edwards had retired and was living over 60 miles 

from Atlanta; Stroup managed to find and interview him, but 

Edwards had no knowledge suggesting evidence to support the claim 

of illegal misconduct. 3 

In an additional effort to secure possible evidence, Stroup 

  

3 At the time, the Fulton County Jail was staffed by three 
shifts of jailors, each shift comprising over 100 officers. 
[cite #***%***] Mr. Stroup did not personally interview each of 
these 300 jailors, some of them retired by 1981, who had been 
employed by the Fulton County Jail in 1978. He confined his 
investigations on this claim-- one of 22 separate constitutional 
issues which he, a pro bono volunteer attorney was then pursuing 
-- to the employees identified as most likely to have relevant 
information. None of those officers know of any evidence 
suggesting that a Massiah violation might have occurred. 

  

5 

 



  1 
| 
| 

made a broad request for the contents of the State's files.? In 

response, Stroup received a mass of documents from a Georgia 

Assistant Attorney General, accompanied by a letter assuring 

Stroup that he was receiving "a complete copy of the 
  

prosecutor's file resulting from the criminal prosecution of 
  

Warren McCleskey." (Fed. Exh. 7) (emphasis added). Informant 

Evans' crucial 2l1-page narrative statement was not included in 

the documents transmitted.® At no point, either then or later, 

did lawyers either for the District Attorney or for the Georgia 

Attorney General's office ever turn over Evans! 21-page 

  

4 prior to petitioner's trial, his defense attorney had 

filed a written motion seeking all written or oral statements 

made by petitioner to anyone, and all exculpatory evidence. After 

an in camera inspection, the trial court had permitted the State 

to withhold both (i) the 21-page statement made by informant 

Evans and (ii) even the fact that the State possessed such a 

statement. (R1-1, Exh. M; R4-73-81; R6-118). 

  

  

During mid-trial, defense counsel again moved for any 

documents in the State's possession that reflected statements 

made by McCleskey. (R1-1, Exh. O, 830-832; see Fed. Exh. 6). The 

motion was denied, and the trial court inexplicably suggested 

that the State possessed no undisclosed, written statements. 

(Judge: "I don't know that we are talking about any written 

statements.") (Id.) (emphasis added). 
  

  

Defense counsel nonetheless preserved this issue on 

appeal. The Georgia Supreme Court denied relief, holding that 

"(tlhe evidence [that the defense counsel] sought to inspect was 

introduced to the jury in its entirety." McCleskey v. State, 245 

Ca. 108, 263 85.E.2d4 146,:150 '{1930). Defense counsel was never 

shown the 21-page Evans statement; he later testified without 

contradiction that he "was never given any indication that such a 

statement existed." (St Hab. Tr. 77). 

  

  

5 Mr. Stroup has subsequently testified that, in reliance 

on these written representations of the State of Georgia, it 

simply did not occur to him that this representation was false, 

that a written statement existed, and that he was being misled. 

(R1-- 7-10). The District Court credited Mr. Stroup's testimony 

on this point. (R1-- 118-119; R3-- 22-25). 

6 

 



  

narrative. 

To complete his investigation, Mr. Stroup deposed the 

Assistant District Attorney who had prosecuted McCleskey. Under 

oath, he questioned the prosecutor about the State's relationship 

with its key witness, Offie Evans: 

Q. [Mr. Stroup]: Okay. Were you aware at the time of the 
trial of any understandings between Evans and any Atlanta 
police department detectives regarding favorable 
recommendation [sic] to be made on his federal escape charge 
if he would cooperate with this matter? 

A. [Assistant District Attorney]: No, sir. 

Q. Let me ask the question another way to make sure we 
are clear. Are you today aware of any understanding 
between any Atlanta police department detectives and 

Offie Evans? 

A. No, sir, I'm not aware of any. 

(Fed. Exh. 3, sey SC 

On cross-examination, the Assistant District Attorney 

broadened his testimony: 

Q. Do you have any knowledge that Mr. Evans was 
working as an informant for the Atlanta Police or any 
police authorities when he was placed in the Fulton 
County Jail and when he overheard these conversations 

of Mr. McCleskey? 

A. I don't know of any instance that Offie Evans had 
worked for the Atlanta Police Department as an 
informant prior to his overhearing conversations at the 
Fulton County Jail. 

(Fed. Exh. 3, 14-15). 

Mr. Stroup subsequently testified that, following 

  

   



    

McCleskey's state habeas proceedings, he had concluded that the 

Massiah claim could not be substantiated: 

... I looked at what we had been able to develop in 

support of the claim factually in the state habeas 

proceeding and made the judgment that we didn't have 

the facts to support the claim and, therefore, did not 

bring it into federal court. 

(R4- 44). 

2. The Discovery Of The State's Coverup 
  

offie Evans's 2l-page statement first came to light in June 

of 1987 -- six years after Mr. McCleskey's initial federal habeas 

petition was filed -- following a fortuitous development in an 

unrelated Georgia case.’ Mr. McCleskey immediately made that 

document the centerpiece of a Massiah claim which he included in 

his second federal petition filed in July of 1987. (See R1-9 & 

Exh. E). id 

Odd. federal hearing on that petit 55h! McCleskey's 

counsel adventitiously discovered the only witness to the illegal 

police conspiracy -- apart from the co-conspirators themselves. 

This surprise witness, Ulysses Worthy, was a retired jailor who 

  

7 In that case, Napper v. Georgia Television Co., 257 Ga. 

156, 356 S.E.2d 640 (1987), the Supreme Court of Georgia appeared 

to hold, for the first time, that police investigative files 

would be deemed within the compass of the Georgia Open Records 

Act, 0.C.G.A. § 50-18-72(a). Mr. Stroup immediately cited that 

then-recent decision, still pending before the Georgia Supreme 

Court on rehearing, in support of a request directly to the 

Atlanta Bureau of Police Services, seeking the original police 

files in McCleskey's case. (R1-7-6). Because Napper was still 

pending on rehearing, attorneys for the Atlanta Bureau were 

reluctant to disclose the entire police file, but on June 10, 

1987, they agreed to provide Mr. Stroup with one document-- 

which proved to be the 2l1-page statement made by Offie Evans. 

{R1=7-7). 

  

 



Oypldian haw (orto dau 
Lee gol Ge ars. 

appeared serendipitously during the waning hours of McCleskey's 

  

  | 
1987 federal hearing. He appeared in response to one of dozens 

of subpoenas issued to everyone mentioned in every document 

uncovered during the course of the two-day federal hearings. (R4- 

21). 

Mr. Worthy testified that he had been present during a 

meeting at the Fulton County Jail in 1978, between Atlanta Police 

Detective Sidney Dorsey and Offie Evans. (R5-148) Worthy 

recalled that he overheard Detective Dorsey (or perhaps some 

other "officer on the case") request Evans "to engage in 

conversations" with Warren McCleskey, who was being held in 

isolation awaiting trial following his indictment for murder and 

armed robbery. (R5 148-189). 

Jailor Worthy remembered that the police officers had then 

asked him to move Evans to a cell directly adjacent to Warren 

McCleskey's cell: 

Q. [By the State]: Mr. Worthy, let me see if. T 

understand this. Are you saying that someone 

asked you to specifically place Offie Evans 

in a specific location in the Fulton County 

Jail so he could overhear conversations with 

Warren McCleskey? 

A. Yes, ma'am. 

(R5-153). As Mr. Worthy later explained to the District Court: 

Judge, may I clarify that?.. . . in this 

particular case this particular person was 

already incarcerated. They just asked that 

he be moved near where the other gentleman 

was. 

 



  

(R5-155) rg 

3. The Findings Of The District Court On Abuse 
  

After receiving documentary evidence and hearing live 

testimony from attorney Robert Stroup, the Assistant District 

Attorney, and the Atlanta detectives, the District Court made 

comprehensive findings on the issue of abuse of the writ. The 

Court first «considered the State's defense of deliberate 

abandonment: 

[Pletitioner cannot be said to have intentionally 
abandoned this claim. Although petitioner did raise a 

Massiah claim in his first state petition, that claim 
was dropped because it was obvious that it could not 
succeed given the then-known facts. . . Abandoning a 
claim whose supporting facts only later become evident 
is not a abandonment that "for strategic, tactical, or 
any other reasons . . . can fairly be described as the 
deliberate by-passing of state procedures." Fay V. 
Noia, 3272 U. 8. 391, 439 (1963), quoted in Potts Vv, 
zant, 638 :F./24.727, 743 (8th Cir. 1981). + . This is 

not a case where petitioner has reserved his proof or 

deliberately withheld his claim for a second petition. 
C. Sanders v. United States, 373 U.S." 1, 18 (1963). 

  

  

(R4 118-119). Turning to the issue of "inexcusable neglect," the 

Court observed that 

. Worthy s agcgunt of 
orsey/ and Off Evans, fol) wed by Bvans' ove ,to\ a 

to’ McCles ey, followed by Eyans' © A i 
with Mr. McCle key, culmina g /in Evans' 

ith Parker at Atlanta police officers, h s to exp 

ajor puzzle aboyt the basic structure and con nt of Evans' 

pa e written state ent. Although Eyans was arre 
¥1 on July 3, 1978 (R5-/101- 1 

is absolutely silent concerning any 
ey during the ‘four-day period ‘between July 
nly / beginning ‘on the 8th of July does Evans¥ 

in’ to report am gonvgEsations etween eset 
partner Bernard Dupree. Pet.j/8, at 1). 
Evans report. that he fixst / introduced hy 
claiming that 

  

  

   
   

   

      

   

        

   

   

    

      

   
   

  

Detective 
cell’ nex 

   

   

   

  

   

  

   

   

  

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was Ben Wri t's uncle "Charl Ss." (Pet. 

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there is . . . no inexcusable neglect unless "reasonably 
competent counsel" would have discovered the evidence prior 
to the first federal petition. This court [has] concluded . 
. «. that counsel's failure to discover Evans' written 
statement was not inexcusable neglect. [R4-118-119]. The 
same is true of counsel's failure to discover Worthy's 
testimony. . . [C]lounsel did conduct an investigation of a 
possible Massiah claim prior to the first federal petition, 
including interviewing "two or three jailers." . . . The 
state has made no showing of any reason that petitioner or 
his counsel should have known to interview Worthy 
specifically with regard to the Massiah claim. 

(R3-22- 24-25). 

D. The Issue Of Harmless Error 
  

There were absolutely no eyewitnesses to the shooting of 

Officer Schlatt. Although Mr. McCleskey initially entered the 

furniture store from the front, and the three co-defendants from 

the rear, the four co-defendants successfully carried out an 

agreed-upon plan to herd all the employees to several offices 

near the back, force them to lie face-down on the floor, and 

carry out the robbery. These plans were well underway when 

Officer Frank Schlatt entered from the front door. No employee 

was able to testify which of the four co-defendants -- all of 

whom were together in the office area -- went forward to engage 

Officer Schlatt. 

The State offered two witnesses, however, who told the jury 

that Warren McCleskey had confessed to the shooting: one was Ben 

Wright, McCleskey's co-defendant. Wright had been the leading 

force in the robbery; he had directed the other participants, and 

was a highly likely suspect in the shooting. The other witness 

the jury heard, howeyer, was Offie Evans, an apparently neutral 

third party who told the jury of McCleskey's ostensible jailhouse 

 



  

confession. 

  

Apart from these two witnesses, the State relied on upon 

circumstantial evidence to place the murder weapon in McCleskey's 

hand. That evidence was gravely flawed: co-defendant Ben 

Wright and Wright's girlfriend testified that McCleskey had been 

carrying a pearl-handled, silver .38 pistol 1linked to the 

homicide. (Tr. T.. 6497 727). Yet on cross-examination, Wright 

admitted that he, not McCleskey, had personally been carrying 

the .38 pistol for several weeks prior to the crime. (Tr. T. 

682). Moreover, while Wright's girlfriend initially testified 

that McCleskey had taken the .38 pistol on the morning of the 

crime, she admitted under cross-examination that she had 
  

informed police, on the day Wright was arrested, that it was 
  

Wright, not McCleskey, who had been carrying the .38 pistol the 
  

day of the furniture store robbery. (Tr. T. 607; 631-634) .° 
  

The District Court, reviewing this evidence, concluded that 

Offie Evans' "testimony about petitioner's incriminating 

statements was critical to the state's case, " and that its 

admission could not be deemed harmless: 

  

9 Both in the panel's initial description of the crime 
(slip op. 2) as well as its analysis of the harmless error issue 
(slip op.24). these record facts, drawn directly from the trial 
transcript, were overlooked or disregarded. (The panel instead 
drew from the initial description of the crime contained in the 
1980 opinion of the Supreme Court of Georgia on Mr. McCleskey's 
direct appeal, written seven years prior to the District Court's 
factfindings, at a time when no Massiah challenge had been 
presented to any court.) 

The panel likewise disregarded the District Court's 
explicit findings, after a factual hearing, that these additional 
facts cast the State's circumstantial evidence case into grave 
doubt. 

12 

 



  

There were no witnesses to the shooting and the murder 
weapon was never found. The bulk of the state's case 
against the petitioner was three pronged: (1) evidence 
that petitioner carried a particular gun on the day of 
the robbery that most likely fired the fatal bullets; 
(2) testimony by co-defendant Ben Wright that 
petitioner pulled the trigger; and (3) Evans' testimony 
about petitioner's incriminating statements. As 
petitioner points out, the evidence on petitioner's 
possession of the gun in question was conflicting and 
the testimony of Ben Wright was obviously impeachable. 
. . .[Tlhe chronological placement of Evans testimony 
[as rebuttal evidence] does not dilute its impact-- 
"merely" impeaching the statement "I didn't do it" with 
the testimony "He told me he did do it" 1s the 
functional equivalent of case in chief evidence of 
guilt. . . . Because the court cannot say, beyond a 
reasonable doubt, that the jury would have convicted 
petitioner without Evans' testimony about petitioner's 
incriminating statements, petitioner's conviction for 
the murder of Officer Schlatt must be reversed pending 
a new trial. 

(R3~-22- 29-31). 

E. The Holding of the Panel 
  

1. Abuse Of The Writ 
  

The panel held that Mr. McCleskey's Massiah claim was an 

abuse of the writ because McCleskey had "deliberately abandoned" 

his Massiah lain after the initial state habeas proceedings. 

(Slip op. 14) The panel did not hold that McCleskey's attorneys 

had been guilty of "inexcusable neglect" by McCleskey's 

attorneys, nor did it disagree with the District Court's finding 

that McCleskey and his counsel had not known, in 1981, of the 

State's hidden 2l1-page statement or the existence of Ulysses 

Worthy. (I4.). 

Instead, the panel held that the District Court had 

"misconstrue[d] the meaning of deliberate abandonment." 

13 

 



  

Pointing out that the legal issue, at least, had been known to 

Mr. McCleskey's attorneys in 1981, (slip op. 15), the panel held 

that it "must assume that . . . counsel had determined that there 

was some factual basis for a Massiah claim." (Id.). Since the 

attorneys, the panel reasoned, knew that Evans had been in the 

adjacent cell and that "some sort of relationship existed between 

Evans and the police" their decision not to go forward with the 

Massiah claim in federal court "constitutes prima facie evidence 

of deliberate abandonment." (Slip op. 16). 

As part of their analysis of "deliberate abandonment," the 

panel went on to fault the investigative efforts by McCleskey's 

counsel during state habeas proceedings as "somewhat lacking." 

The panel stressed that McCleskey's counsel had never interviewed 

the detectives who were ultimately implicated in the coverup or 

another jail official who testified during McCleskey's trial. 10 

After reciting these omissions, the panel held that "[a]bandon- 

ing a «claim after initial investigatory efforts prove 

unsuccessful cannot insulate a petitioner from abuse of the 

writ." (Slip op. 18) 

McCleskey has not presented any reason why counsel would 

have been unable to contact Ulysses Worthy back in 1981 when 

the first federal habeas petition was filed. Nor has he 

shown that a more extensive effort at that time to track 

down persons with information as to what transpired in the 

  

10 The panel overlooked the District Court's express 

factual finding that this failure was not inexcusable under all 

the circumstances, and that "[g]iven that all three [State 

officers] denied any knowledge of a request to move Evans next to 

McCleskey, it is difficult to see how conducting such interviews 

would have allowed petitioner to assert this claim any earlier." 

(R3-22- 25). 

14 

 



  

E
R
E
 county jail during the summer of 1978 would not have turned 

up Worthy. A petitioner and his counsel may not circumvent 

the abuse of the writ doctrine by failing to follow through 

with an investigation and then later claiming that the claim 

could not have succeeded earlier on the facts as then known. 

It will only be possible to avoid piecemeal litigation if 

counsel if required to make a thorough investigation of the 

facts at the time of petitioner's first petition for habeas 

corpus. 

{31ip op. 19). 

2. The Panel's Holding On Harmless Error 
  

ARGUMENT 
  

I 

DID NOT ABUSE ITS DISCRETION BY FINDING THAT 
)} etl] UNDER THESE CIRCUMSTANCES, THE DISTRICT COURT 

’ PETITIONER'S MASSIAH CLAIM SHOULD BE ENTERTAINED 

1S ON ITS MERITS. PETITIONER CANNOT BE HELD TO HAVE 

(sds "DELIBERATELY ABANDONED" A CLAIM WHOSE FACTUAL 

PREMISES WERE DELIBERATELY CONCEALED FROM HIM BY 
AN ELABORATE POLICE COVERUP. THE STATE SHOULD NOT 

PREVAIL SIMPLY BECAUSE THE COVERUP BY STATE 

OFFICIALS AND THEIR CO-CONSPIRATORS REMAINED 

SUCCESSFULLY HIDDEN DURING PETITIONER'S INITIAL 

STATE AND FEDERAL PROCEEDINGS 

The panel's decision completely rewrites the law of abuse of 

the writ. Fifty years of Supreme Court precedent have been 

silently overruled; two decades of precedent in this Circuit are 

swept away with scarcely a trace. Both the will of Congress-- 

expressed in 28 U.S.C, § 2244 (bh) and Rule 9(b) -- and :the 

Supreme Court's recent decision in Amadeo v. Zant must be 
  

overlooked or disregarded to justify the panel's decision. 

For the past fifty years, at least, the Supreme Court has 

held insisted that a defendant cannot be held to have waived a 

constitutional right absent a finding of "an intentional 

15 

 



  

relinquishment or abandonment of a known right or privilege," 

Johnson Vv. Zerbst, 304 U.S. 458, xxx (1938), cited in Potts v. 
  

Zant, 638 F.2d 727, 741 (5th Cir. Unit B 1981). 

This general rule has been faithfully observed by the Court 

in reviewing second federal habeas petitions. The Court's 

decisions in Price v. Johnston, 334 U.S. 266 (1948), Sanders Vv. 
  

  

United States, 373 U.S. 1, (1963), and Smith v. Yeager, 393 U.S. 
  

  

122 (1968) (per curiam) all turned upon the presence or absence 

of actually knowledge by the habeas applicant of the facts to 

support his constitutional claims. The claim in Price, for 

example, had not been asserted until the applicant's fourth 

federal petition. Although the trial record had given the 

applicant a strong basis from the outset to suspect State 

misconduct, the Supreme Court overturned the lower courts!’ 

dismissal of his claim, distinguishing other cases in which a 

petitioner had full access to "proof [of the claim] which was 
  

accessible at all times." 334 U.S. at 289.11 

By contrast, McCleskey's panel did not allow its judgment to 

turn on the evidence actually known to McCleskey's counsel in 

1981; instead, it held baldly that counsels' failure to go 

forward into federal court with nothing more than unsubstantiated 

suspicions constituted "prima facie evidence of deliberate 

  

ll The Court refused to "assume that petitioner [Price] has 
acquired no new or additional information since the time of the 
trial or the first habeas corpus proceeding that might indicate 
fraudulent conduct on the part of the prosecuting attorneys." 334 

U.S. at 290, 

16 

 



§ 

5 

| 

i 
: 
] 
2 

4 

| 
£ 

i 
i   

abandonment." 

The most definitive Supreme Court statement on this issue 

arguably came in Sanders, where the Court presented, as the 

paradigm of deliberate abandonment, the case of Wong Doo V. 
  

United States 265 U.S. 239 (1924). Wong Doo had a "full 
  

opportunity to offer proof" at an initial hearing but 

deliberately "reserve[d] the proof for use in attempting to 

support a later petition." 373 U.S. at 10. Once again, by 

contrast, the panel had no evidence that McCleskey's counsel 

knew of, or deliberately reserved, proof of the police coverup or 

the secret agreement between Evans and the Atlanta police. 

McCleskey's panel held, however =-- contrary to the express 

findings of the District Court -- that counsels' 1981 

investigation had been "somewhat lacking," and that deliberate 

abandonment could be imputed to McCleskey -- even without any 

evidence that he had, in fact, knowingly and intelligently 

abandoned his claim. 

The panel's holding thus re-fashions Johnson Vv. Zerbst's 
  

venerable rule -- that waivers must be voluntary, knowing, and 

intelligent -- into a new two-pronged test: if a claim has 

voluntarily abandoned, federal courts will impute to the 

applicant all knowledge that might have been uncovered by further 
  

investigation -- whether or not the State has deliberately, 

maliciously even criminally withheld the evidence from defense 

counsel. This novel "objective attorney standard," whatever its 

wisdom, is profoundly at odds with prior precedent. For example, 

17 

 



  

in Smith v. Yeager, the Court reviewed a case in which initial 
  

habeas counsel had orally declined an invitation to conduct a 

federal hearing on a confession claim. After the applicant had 

been denied relief based upon his state court evidence, he later 

sought a full federal hearing in a second federal petition. The 

Supreme Court held that the applicant had not waived his 

opportunity for a federal hearing: 

Whatever the standards for waiver may be in other 

circumstances, the essential question here is whether the 

petitioner "deliberately withheld the newly asserted ground" 

in the prior proceeding, or "otherwise abused the writ." 

. . . Whatever counsel's reasons for this [earlier waiver of 

a federal hearing] . . ., we cannot now examine the state of 

his mind, or presume that he intentionally relinquished a 

known right or privilege, Johnson v. Zerbst, 304 U.S. 458, 

464, when the right or privilege was of doubtful existence 

at the time of the supposed waiver. 

  

Smith v. Yeager, 393 U.S. 122, 125-126 (1968) (per curiam). 
  

The panel's new rule simply cannot be squared with Price, 

  
  
  

Sanders, Wong Doo, or Smith v. Yeager. Nor can it find support 

in the prior decisions of this circuit. On the contrary, it 

flouts two decades of precedent. See, .e.q., Booker Vv. 
  

  

Wainwright, 764 F.2d 1371, 1376 (11th Cir. 1985) ( "The petitioner 
  

may avoid dismissal if he proves by a preponderance of the 

evidence that he was ignorant of facts necessary to support the 

new ground when he filed his prior habeas corpus petition"); 

Haley Vv. Egtelle, 632 F.2d 1273, 1275 (5th Cir. 1980) ("it ‘is 
  

clear that a petitioner cannot be charged with having abused the 

writ of habeas corpus if, at the time of his earlier petition, he 

was unaware of the facts on which his earlier claims are based"); 

18 

 



ETS Ron 
— 

nw do Potts v. Zant, 638 F.2d 727, 746 & n. 23 (5th Cir. Unit B 1981) 
  

(noting that even a knowing and intentional waiver does not 

necessarily render a subsequent petition an abuse absent "a 

showing that the prisoner secured some tactical advantage by not 

pressing his claim earlier"); Paprskar v. Estelle, 612 F.2d 1003, 
  

1006 (5th Cir. 1980) (approving Johnson v. Zerbst as the proper 
  

measure of deliberate bypass); see also Guice v. Fortenberry, 661 
  

F.2d 496, 507 (5th Cir. 1981) (en banc) (the failure of defense 

counsel to develop crucial facts in support of their jury 

challenge did not constitute deliberate abandonment for Townsend 
  

    

V. Sain purposes); Walker v. Lockhart, 763 F.2d 942, 955 n.26 

(8th Cir. 1985) the discovery of evidence suppressed by the State 

permits consideration of previously asserted claim in a 

successive petition); Sockwell wv. Maggio, 709 F.2d 341, 344 (5th 
  

Cir. 1983) (per curiam) ("[i]f a petitioner's unawareness of facts 

which might support a habeas application is excusable .. the 

subsequent filing is not an abuse of the writ") 

These circuit holdings carry out the plain intent of 

Congress which, in 1966, enacted 28 U.S.C. § 2244 (b) to govern 

the disposition of second petitions. In reporting out § 2244 

9(b), the Senate Judiciary Committee stated that §2244 (b) was 

designed to target those "applications . . . predicated upon 

grounds obviously well known to [habeas applicants] when they 
  

filed the preceding application." S. Rep. No. 1797, 89th Cong., 

2d Sess. 2 (1966). By way of contrast, the Advisory Committee 

that framed Rule 9(b) of the Rules Governing Section 2254 Claims 

i Bn VA free 
   



  

emphasized that when "newly discovered evidence" came to light, a 

district court should not dismiss but entertain a second federal 

petition on its merits. 

This new standard also offends against the Supreme Court's 

recent opinion in Amadeo v. Zant, _ U.S.__., 100 L.Ed.2d 249 
  

(1988). There, as here, the District Court found as fact that 

State officials had promoted the selection of an unconstitutional 

jury pool and then hid their misconduct. A panel of this Court, 

however, reread the record, concluding that trial counsel had 

deliberately abandoned any jury challenge, and that their failure 

to uncover and assert the jury fraud amounted to "cause" for 

denying habeas counsel the right to pursue it later. 

On certiorari, the Supreme Court unanimously reversed. it 

faulted the panel for substituting its own factual conclusions 

for those of the District Court without a finding under F.R. Civ. 

P. Rule 52 that the lower court's findings were "clearly 

erroneous." After referring to its prior opinion in Murray v. 
  

Carrier, 477 U.S. 478, 488 (1986 -- which held that "interference 

by [State] officials" would excuse a defense attorney's to have 

asserted a claim -- the Court clearly indicated that both 

"deliberate bypass" and "cause" were issues of fact; the Court 

concluded that if there was a factual record before the District 

Court sufficient to permit a conclusion that a claim had not been 
  

deliberately bypassed, "the court of appeals may not reverse it 

even though convinced that had it been sitting as the trier of 

fact, it would have weighed the evidence differently." Amadeo Vv. 
  

20 

 



  

Zant, 100 L.Ed. 2d at 260-261. We respectfully suggest that the 

panel in McCleskey's case ran seriously afoul of Amadeo when it 

(I) imputed an objective, "reasonable attorney" standard into the 

consideration of McCleskey's "deliberate abandonment" inquiry and 

(ii) then ignored the District Court's express factual finding 

that counsel's investigation did not amount to inexcusably 

neglect. 

* * * * ® se - i * a a 

As shown above, the panel's opinion jettisons entire bodies 

Of law -- Supreme Court decisions, circuit court holdings, 

Congressional authority. But it does far more than that. it 

turns the equitable foundations of the Great Writ inside out:12 

a proven, decade-long pattern of State misconduct, capped by 

perjury, merits not a single word of reproach. Forgetting the 

basic insistence that he who seeks equity must do equity-- 

equity's fundamental requirement of "clean hands" -- the panel 

has transmogrified that venerable maxim into its opposite: if 

the State manages successfully to hide its misconduct, it will go 

unpunished. Condemnation is reserved, not for the violator, but 

for the investigator, for the habeas counsel who fails to ferret 

out State misconduct soon enough. 

Henceforth, the sworn testimony of State officials is 

  

ti "[H]abeas corpus has traditionally been regarded as 
governed by equitably principles. United States ex rel. Smith v. 
Baldi, 344 U.S. 561, 573 . . . Among them is the principle that a 
suitor's conduct in relation to the matter at hand may disentitle 
him to the relief he seeks." Sanders v. United States, 373 U.S. 
at 17. 

21 

 



  

functionally worthless; defense attorneys will rely upon it only 

at their client's peril. Every good faith effort to investigate 

constitutional claims, every good faith decision about whether to 

continue a fruitless investigation, must be guided by the most 

cynical of assumptions: witnesses are perjured, State officials 

all dupes or frauds, every blind alley the goad to further 

effort. Ten depositions cannot suffice where an eleventh might 

uncover fraud; to close a state or federal hearing with a single 

witness left unsummoned is no less than an act of reckless 

lawyering.13 

In short, this new rule will, without the slightest doubt, 

prompt a fundamental change in the conduct of every responsible 

defense attorney who 1litigates habeas corpus cases in this 

Circuit. If this Court is truly inclined to countenance this new 

rule, it should do so only after a full opportunity to consider 

its full implications on rehearing in banc. 

  

13 This circuit has, in the past, firmly resisted any 
inclination to adopt such a harsh and inequitable rule. See, 
€.dg., Freeman v. State of Georgia, 599 F.2d 65, 71-72 {5th Cir. 
1979) (when police officer submitted a false report that lied 
about whereabouts and testimony of key witness, habeas 
applicant's failure to locate witness did not constitute a waiver 
of claim); Ross v. Kemp, 785 F.2d 1467, 1477 (11th Cir. 1986) 
(when county clerk denied, under oath, having jury records later 
shown to have been in his possession, habeas applicant entitled 
to a further hearing). 

  

  

22 

 



  
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iclusion can one draw 

praisals, a practice that 

tend” to hasten house 
1 the view of the majori- 

to have caused or accel- 
on in Area A? Supra at 

s to me irrelevant that 

e no longer used in Area 

7, since, of course, the 
tration can reinstitute 

wuse John Doe appraisals 

sales, the reimplementa- 

e in Area B might con- 

re resegregation of that 
racing the threat of re- 

: potential use of John 

wrea B may be too specu- 

on which to base stand- 

n the apparent dearth of 

such appraisals had in 

uncounseled VA loans, 

liscounted the testimony 
that the existence of the 

oan assistance programs 

5 of resegregation. To 

ars do exist, the district 

ey were “mistaken” be- 
before the court did not 

connection between VA- 
cing and white flight. 

ns Admin., 654 F.Supp. 

986). It is not clear to 
onality of the fears is 

lection may be created 

erceptions: if residents 

change and VA-guaran- 

‘ed, these perceptions by 
ce effects in the real 

urse, the district court 
ven this connection exist- 

trial, the court remained 

the availability of VA- 
ing was a substantial 

tion of white residents’ 

Id. 

not persuaded that the 
intiffs seek are without 

svernment violations of law, 
programs agencies establish 
:gal obligations. ... are rare 

iate for federal court adjudi- 

m d 

  

    a —_.--e. ~~ ams tha tm gi CA AL 

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“¢ 

% SRA uy 

BROWN v. FEDERATION OF STATE MEDICAL BOARDS OF US. 1429 
Cite as 830 F.2d 1429 (7th Cir. 1987) 

value as antidotes to resegregation, I be- 

lieve that, given the findings of the district 

court and the record developed below, we 

would not be justified in reaching a result 

different from that of the district court.! 

O ¢ KEY NUMBER SYSTEM 

—
~
“
m
E
 

Samuel W. BROWN, M.D., Plaintiff, 

David Neely, Appellant, 

Vv. 

FEDERATION OF STATE MEDICAL 

BOARDS OF THE UNITED STATES; 

Educational Commission for Foreign 

Medical Graduates; and The National 

Board of Medical Examiners, Defend- 

ants-Appellees. 

No. 86-2652. 

United States Court of Appeals, 

Seventh Circuit. 

Argued June 5, 1987. 

Decided Sept. 22, 1987. 

Rehearing and Rehearing En Banc 

Denied Nov. 18, 1987. 

Appeal was taken from order of the 

United States District Court for the North- 

ern District of Illinois, John F. Grady, 

Chief Judge, which imposed sanctions on 

attorney for filing frivolous civil rights 

claims. The Court of Appeals, Flaum, Cir- 

cuit Judge, held that: (1) determination of 

frivolousness was supported, but (2) in 

cases involving substantial award as sanc- 

tion, district court must state with some 

specificity the reasons for the imposition of 

the sanction. 

Affirmed in part and vacated and re- 

manded in part. 

1. I think that one of the plaintiffs’ more formid- 
able hurdles—but only as to Area A—is the 
apparent inadequacy of the record on remedies 

1. Federal Civil Procedure 2721 

If district court concludes that motion, 

pleading, or other document was not well 

grounded in fact or warranted by the exist- 

ing law, or was meant to harass, court 

must impose Rule 11 sanction. Fed.Rules 

Civ.Proc.Rule 11, 28 U.S.C.A. 

2. Federal Civil Procedure ¢=2721 

In reviewing order granting or denying 

Rule 11 sanctions, court must consider 

whether the district court correctly im- 

posed sanctions and whether the sanctions 

which the district chose to impose were 

appropriate. Fed.Rules Civ.Proc.Rule 11, 

28 U.S.C.A. 

3. Federal Courts 776, 870 

Findings of fact which district court 

has used to determine whether Rule 11 was 

violated are reviewed under the clearly er- 

roneous standard but district court’s legal 

conclusion that conduct in a particular case 

constitues a Rule 11 violation is reviewed 

de novo. Fed.Rules Civ.Proc.Rule 11, 28 

U.S.C.A. 

4. Federal Civil Procedure 2721 

Standard for imposing sanctions under 

Rule 11 is an objective determination of 

whether sanctioned party's conduct was 

reasonable under the circumstances, and 

subjective bad faith is not the crucial in- 

quiry. Fed.Rules Civ.Proc.Rule 11, 28 U.S. 

CA. 

5. Federal Civil Procedure 2721 

Two grounds for imposing Rule 11 

sanctions are frivolousness, based on a de- 

termination that the party or attorney did 

not make a reasonable inquiry into the 

facts or a reasonably inquiry into the law, 

or improper purpose. Fed.Rules Civ.Proc. 

Rule 11, 28 U.S.C.A. 

6. Attorney and Client 24 

To determine on motion for Rule 11 

sanctions whether attorney made reason- 

able inquiry into facts of case before filing 

pleading, court should consider whether the 

signer of the documents had sufficient time 

for investigation, the extent to which the 

as they relate to redressability. The majority, of 
course, notes but does not rely on this point. 
Supra at 1423. 

  

ch Ch ht an fh SD



v 

I... 

0 

1430 830 FEDERAL REPORTER, 2d SERIES 

attorney had to rely on his or client for the 
factual foundations underlying the plead- 
ing, whether the case was accepted from 
another attorney, complexity of the facts 
and the attorney’s ability to do a sufficient 
prefiling investigation, and whether dis- 
covery would have been beneficial to the 
development of the underlying facts. Fed. 
Rules Civ.Proc.Rule 11, 28 U.S.C.A. 

7. Attorney and Client &=24 

To determine on motion for Rule 11 
sanctions whether attorney made reason- 
able inquiry into the law before filing 
pleading, motion, or other paper, court 
should consider the amount of time which 
the attorney had to prepare the document 
and research the relevant law, whether the 
document contained a plausible view of the 
law, the complexity of the legal questions 
involved, and whether the document was a 
good-faith effort to extend or modify the 
law. Fed.Rules Civ.Proc.Rule 11, 28 U.S. 
C.A. 

8. Federal Civil Procedure ¢=2721 
Subjective bad faith is relevant in de- 

termining whether to impose Rule 11 sanc- 
tions in situations involving malicious pros- 
ecution of claims but not in situations 
where a party has repeatedly pursued the 
implausible claims. Fed.Rules Civ.Proc. 
Rule 11, 28 U.S.C.A. 

9. Federal Civil Procedure 2721 
Finding that civil rights pleading on 

behalf of unsuccessful applicant for medi- 
cal license was frivolous was supported by 
evidence that attorney failed to make ade- 
quate investigation and that he was the 
third attorney to represent the client, so 
that reasonable attorney would have in- 
quired as to why the previous attorneys 
had left the case, and that the client's 
claims were not supported by the facts. 
Fed.Rules Civ.Proc.Rule 11, 28 U.S.C.A. 

10. Attorney and Client 24 

Attorney failed to make reasonable in- 
quiry as to whether civil rights complaint 
filed on behalf of unsuccessful applicant 
for medical license was supported by exist- 
ing law, thus warranting sanctions, where 
age discrimination claim clearly lacked mer- 
it because there had been no complaint 

filed with the EEOC and where § 1983 and 
§ 1981 claims were untenable. 42 U.S.C.A. 
§§ 1981, 1983; Fed.Rules Civ.Proc.Rule 11, 
28 U.S.C.A. 

11. Federal Civil Procedure ¢=2721 
District court should have specified 

why it believed that claims were sanctiona- 
ble in order to assist review of the imposi- 
tion sanctions. Fed.Rules Civ.Proc.Rule 
11, 28 US.CA. 

12. Federal Civil Procedure 2721 

District court’s lump-sum award of at- 
torney fees as to Rule 11 sanction for filing 
of meritless civil rights action was deficient 
without statement of specificity of the rea- 
sons for the imposition of the sanction. 
Fed.Rules Civ.Proc.Rule 11, 28 U.S.CA. 

13. Attorney and Client 24 

Federal Civil Procedure ¢=2721 
Due to the impact which Rule 11 sanc- 

tions may have on a party or an attorney’s 
career and personal well-being, they should 
not be lightly imposed. Fed.Rules Civ. 
Proc.Rule 11, 28 U.S.C.A. 

14. Federal Civil Procedure ¢=2721 
Although an important consideration, 

compensation is not the only purpose un- 
derlying Rule 11 and an even more impor- 
tant purpose is deterrence. Fed.Rules Civ. 
Proc.Rule 11, 28 U.S.C.A. 

15. Federal Civil Procedure 2721 

In cases involving substantial awards 
as a Rule 11 sanction, district judge must 
state with some specificity of the reasons 
for the imposition of the sanction and the 
manner in which the sanction was comput- 
ed; sanctions which are awarded must be 
quantifiable with some precision and prop- 
erly itemized in terms of the perceived mis- 
conduct and the sanctioning authority. 
Fed.Rules Civ.Proc.Rule 11, 28 U.S.C.A. 

16. Federal Civil Procedure ¢=2721 

Where deterrence is the purpose be- 
hind the Rule 11 sanction, trial court must 
strive to impose a sanction which fits the 
inappropriate conduct. Fed.Rules Civ. 
Proc.Rule 11, 28 U.S.C.A.  



  

re § 1988 and 
42 US.C.A. 

Proc.Rule 11, 

2721 

ave specified 
’re sanctiona- 
of the imposi- 

Civ.Proc.Rule 

e&=2721 

award of at- 

tion for filing 

was deficient 

ty of the rea- 

the sanction. 
28 US.CA. 

4 

2721 

Rule 11 sane- 

an attorney’s 

;, they should 

»d.Rules Civ. 

2721 

*onsideration, 
purpose un- 
more impor- 

ed.Rules Civ. 

2721 

antial awards 

t judge must 
f the reasons 

ction and the 

was comput- 

‘ded must be 

ion and prop- 
erceived mis- 

g authority. 
28 U.S.C.A. 

2721 

purpose be- 

i] court must 
‘hich fits the 

1.Rules Civ. 

17. Attorney and Client &24 

Federal Civil Procedure 2721 

In appropriate cases, district court 

should reflect upon equitable considera- 

tions in determining the amount of Rule 11 

sanctions and one equitable consideration is 

the sanctioned attorney’s or party’s assets; 

another is whether the party seeking fees 

caused litigation to be longer than neces- 

sary, as a duty of mitigation exists; other 

equitable factors may include the experi- 

ence of the attorney and whether the area 

of law was one which requires special ex- 

pertise. Fed.Rules Civ.Proc.Rule 11, 28 
U.S.C.A. 

18. Federal Civil Procedure ¢=2721 

In imposing attorney fees as Rule 11 

sanction, estimation of what amount of 

time was reasonably needed to defend 

against each of the frivolous claims should 

be made. Fed.Rules Civ.Proc.Rule 11, 28 

U.S.C.A. 

Bruce H. Bornstein & Alan M. Freed- 

man, Freedman & Bornstein, Chicago, Ill, 

for appellant. 

Helen E. Witt, Kirkland & Ellis, Chicago, 

I1., for defendants-appellees. 

Before COFFEY and FLAUM, Circuit 

Judges, and ESCHBACH, Senior 

Circuit Judge. 

FLAUM, Circuit Judge. 

The appellant, David Neely, appeals from 

the district court’s order imposing sanc- 

tions against him pursuant to Rule 11 of 

the Federal Rules of Civil Procedure. The 

district court's order required Neely, an 

attorney, to pay the three defendants over 

$30,000 in attorneys’ fees. On appeal, Nee- 

ly argues that Rule 11 sanctions should not 

have been granted, and that, even if it was 

proper for the district court to award sanc- 

tions, the court abused its discretion by 

granting such a large award. We conclude 

that, although the district court was cor- 

rect in imposing sanctions, the absence of 

an appropriately specific award requires a 

remand of this case for a redetermination 

of sanctions. 

BROWN v. FEDERATION OF STATE MEDICAL BOARDS OF U.S. 1431 
Cite as 830 F.2d 1429 (7th Cir. 1987) 

L. 

Samuel Brown, M.D., the named plain- 

tiff, received his medical education from 

the University of Graz, Austria. Brown 

attempted to pass various state licensing 

exams thirteen times between 1975 and 

1982. These exams were administered un- 

der the auspices of the defendants. See 

Brown v. National Board of Medical Ex- 

aminers, 800 F.2d 168, 169 (7th Cir.1986). 

Despite his studying, however, Brown nev- 

er passed the exams. See id. 

Apparently, Brown became convinced 

that the “testing organizations were en- 

gaged in some form of statistical manipu- 

lation.” Id. Brown pursued several nonle- 

gal channels seeking relief. Id. However, 

he soon became frustrated with these 

nonlegal routes. Consequently, on Decem- 

ber 2, 1982, Brown, with the aid of an 

attorney, Toole, filed a complaint against 

the defendants in federal court. Brown, a 

black man, was 51 years old at the time he 

filed this complaint. The complaint alleged 

violations of equal protection and due pro- 

cess, and alleged discrimination against 

medical school graduates over 35 years old. 

Brown requested review of his exams, in- 

cluding his test booklet. However, in June, 

1983, the district court dismissed the com- 

plaint for want of prosecution. 

The next month, the district court rein- 

stated the complaint. At the pretrial con- 

ference, the defendants informed Brown 

that his test booklet had been destroyed 

during the ordinary course of business. 

Id. at 170. The defendants offered to al- 

low Brown to review his answer sheets and 

compare them to the master answer key. 

“Brown found this approach unacceptable, 

because he contended that the booklets did 

still in fact exist and the booklets provided 

proof of his correct answers.” Brown v. 

Federation of State Medical Boards, No. 

82 C 7398, slip op. at 3 (N.D.IIl. May 31, 

1985) (footnote omitted) (memorandum 

opinion). 

Brown then filed an amended complaint, 

which he signed. Toole, however, did not 

sign this amended complaint which alleged 

“various constitutional deprivations and 

  

  

  

 



1432 

prayed for millions of dollars in damages.” 

Brown, 800 F.2d at 170. At this point, 

Toole withdrew as Brown’s counsel. 

Brown immediately retained new counsel, 

Walker. Walker, however, withdrew one 

month later. 

On March 30, 1984, David Neely ap- 

peared on Brown's behalf for the first time. 

Neely filed a second amended complaint. 

In the second amended complaint, Neely 

added claims of race discrimination, and 

violations of the Age Discrimination in Em- 

ployment Act (ADEA), 29 U.S.C. §§ 621-34 

(1982 & Supp. III 1985). The second 

amended complaint contained nine related 

claims: 

(1) intentional racial discrimination; (2) 

intentional age discrimination; (8) viola- 

tion of due process; (4) violation of the 

Privileges and Immunities Clause and 

equal protection; (5) violation of ADEA; 

(6) violation of 42 U.S.C. § 1981; (7) vio- 

lation of 42 U.S.C. § 1983; (8) violation 

of plaintiff's right to travel, right to con- 

tract and freedom of expression, and (9) 

intentional infliction of emotional dis- 

tress. 

Brown, No. 82 C 7398, slip op. at 4-5. 

Neely soon became concerned that impor- 

tant documentary evidence would be al- 

tered or destroyed. Consequently, he filed 

an emergency motion to produce doc- 

uments and have them placed under the 

court's seal. The district court held a hear- 

ing to determine the basis of Neely’s re- 

quest. The district court concluded that 

the motion was groundless, and assessed 

attorney’s fees of $2,538 against Neely. 

On appeal, we affirmed this award of attor- 

ney’s fees. Brown v. National Board of 

Medical Examiners, 800 F.2d 168 (7th Cir. 

1986). 

The district court, in the same order in 

which it sanctioned Neely for filing the 

emergency motion, dismissed the second 

amended complaint. The court dismissed 

the § 1983 causes of action because it con- 

cluded that there was no state action on the 

part of the defendants. The district court 

reasoned that the defendants were not 

state agencies and did not license the physi- 

cians; rather, the defendants only supplied 

830 FEDERAL REPORTER, 2d SERIES 

a service used by state licensing boards 

and examinees. The district court dis- 

missed the § 1981 claims because Brown 

neither identified the contract that formed 

the basis of the § 1981 claim nor alleged 

either intent or any type of actionable ac- 

tivity. The district court dismissed the 

ADEA claims because, inter alia, Brown 

had failed to file a complaint with the 

Equal Employment Opportunity Commis- 

sion. Finally, the district court dismissed 

the state claims, declining to exercise its 

pendent jurisdiction. The district court dis- 

missed the ADEA claims and the § 1983 

claims with prejudice. However, the court 

provided Brown an opportunity to amend 

the § 1981 counts within 30 days. 

After dismissing the complaint, the dis- 

trict court discussed the possibility of sanc- 

tions. The court noted that the ADEA 

claims had no basis in the law, and that the 

§ 1983 claims suffered from “legal infirmi- 

ties.” The district court did not at that 

time, however, make a finding as to wheth- 

er the § 1983 claims were unreasonable. 

Finally, the court noted that if no facts 

existed to warrant the § 1981 claims, then 

an amendment of these claims might be 

sanctionable. 

Brown decided not to amend his § 1981 

claims. Subsequently, on April 29, 1986, 

the district court ruled on the defendants’ 

petitions for fees. The district court con- 

cluded that Neely’s action in filing the sec- 

ond amended complaint was unreasonable, 

and that the defendants were entitled to 

their attorneys’ fees for defending against 

that second amended complaint. The court 

first reviewed the petition of the National 

Board of Medical Examiners (“National”). 

The court reduced the billing rates of one 

of National's attorneys from $140 and $150 

per hour to $100 per hour; the court ap- 

proved the $80 and $85 per hour rates of 

the other attorney. The court, without 

making any determination as to the amount 

of hours that National's attorneys spent 

defending each count of the second amend- 

ed complaint, concluded that the time spent 

was “reasonable” and awarded fees in the 

amount of $7,281.30. Under the court's 

order, Brown and Neely were jointly and  



  

ng boards 
court dis- 

se Brown 

at formed 

or alleged 
onable ac- 

rissed the 

ia, Brown 

with the 

- Commis- 

dismissed 
xercise its 

¢ court dis- 

he § 1983 

the court 

to amend 
VS. 

it, the dis- 

ty of sanc- 

he ADEA 

id that the 

ral infirmi- 

ot at that 
. to wheth- 

‘easonable. 

° no facts 

aims, then 

might be 

his § 1981 

29, 1986, 
efendants’ 

court con- 

1g the sec- 

‘easonable, 

entitled to 

ng against 

The court 

e National 

National”). 
tes of one 

0 and $150 

: court ap- 

ir rates of 

t, without 

‘he amount 

1eys spent 

nd amend- 

time spent 

fees in the 

he court's 

jointly and 

severally liable for the award. The court 

found, however, that the fee petition of the 

Educational Commission for Foreign Medi- 

cal Graduates, Inc. (“Commission”) and the 

Federation of State Medical Boards (‘“Fed- 

eration”) were lacking in specificity. The 

court, therefore, ordered these two parties 

to file more detailed petitions. They subse- 

quently filed revised fee petitions. 

On July 24, 1986, the district court issued 

another memorandum order. The court 

first considered both Brown and Neely’s 

objections to the Rule 11 sanctions. One of 

Neely’s objections to the fee petitions was 

his inability to pay the sanction. The dis- 

trict court rejected this claim, finding that 

although Neely’s expenses exceeded his in- 

come, he would be able to spread his pay- 

ments over time. Brown, No. 82 C 7398, 

slip op. at 10. The court refused to consid- 

er other equitable factors, such as the 

wealth of the defendants and Neely’s inex- 

perience, because the court believed that 

“the Seventh Circuit does not find eq- 

uitable factors relevant, save perhaps a 

sanctioned party’s indigency.” Id. 

The district court then considered Com- 

mission’s and Federation’s revised fee peti- 

tions. Federation had requested $41,- 

359.91. The court disallowed $641 in fees 

attributable to the first amended complaint. 

The district court also found that Federa- 

tion’s “petition include[d] excessive time 

for conferring, both among Federation's 

own counsel and with counsel for the other 

1. Rule 11 provides: 
Every pleading, motion, and other paper of 

a party represented by an attorney shall be 
signed by at least one attorney of record in 
his individual name, whose address shall be 
stated. A party who is not represented by an 
attorney shall sign his pleading, motion, or 
other paper and state his address. Except 
when otherwise specifically provided by rule 
or statute, pleadings need not be verified or 
accompanied by affidavit. The rule in equity 
that the averments of an answer under oath 
must be overcome by the testimony of two 
witnesses or of one witness sustained by cor- 
roborating circumstances is abolished. The 
signature of an attorney or party constitutes a 
certificate by him that he has read the plead- 
ing, motion, or other paper; that to the best of 
his knowledge, information, and belief 
formed after reasonable inquiry it is well 
grounded in fact and is warranted by existing 

BROWN v. FEDERATION OF STATE MEDICAL BOARDS OF U.S. 1433 
Cite as 830 F.2d 1429 (7th Cir. 1987) 

defendants.” Id. at 7. The court reduced 

Federations fee request from over $40,000 

to $20,000, and concluded that Neely was 

jointly and severally liable for $15,000 of 

the $20,000 in fees awarded to Federation. 

The court further concluded that Neely 

was jointly and severally liable to Commis- 

sion for fees attributable to the second 

amended complaint in the amount of 

$8,278.75. Thus, Neely was jointly and 

severally liable for $7,281.30 to National, 

$15,000 to Federation, and $8,278.75 to 

Commission. The district court did not as- 

sess costs against Neely. Final judgment 

was entered on these fee amounts, with 

interest, and Neely filed a timely notice of 

appeal. 

IL. 

[1] Rule 11 of the Federal Rules of 

Civil Procedure provides that if an attorney 

files pleadings that are not reasonably 

based on the law or in fact, or that are 

meant to harass, then “the court upon mo- 

tion or upon its own initiative, shall impose 

. an appropriate sanction.” Fed.R.Civ.P. 

11 (emphasis added); see Robinson v. Na- 

tional Cash Register Co., 808 F.2d 1119, 

1130 (5th Cir.1987).! If the district court 

concludes that the motion, pleading, or oth- 

er document was not well-grounded in fact 

or warranted by the existing law, or was 
meant to harass, then the court must im- 

pose a sanction. See, e.g, Szabo Food 

Service, Inc. v. Canteen Corp., 823 F.2d 

law or a good faith argument for the exten- 
sion, modification, or reversal of existing law, 

and that it is not interposed for any improper 
purpose, such as to harass or to cause unnec- 

essary delay or needless increase in the cost 
of litigation. If a pleading, motion, or other 
paper is not signed, it shall be stricken unless 

it is signed promptly after the omission is 
called to the attention of the pleader or mov- 
ant. If a pleading, motion, or other paper is 
signed in violation of this rule, the court, 

upon motion or upon its own initiative, shall 
impose upon the person who signed it, a rep- 
resented party, or both, an appropriate sanc- 
tion, which may include an order to pay to 
the other party or parties the amount of the 
reasonable expenses incurred because of the 
filing of the pleading, motion, or other paper, 
including a reasonable attorney's fee. 

Fed.R.Civ.P. 11. 

    

    
    
     

    
    
   
    
   
    
   

   

    

    

        

    
    
   
   
     
   

     

   
    
   
     

    

     
   

  

   

    

  

  

  
  

  

a 
—
—
 

  

    

   
      

  

    

    

   

   

   
    

    

  

  

      



( 

1434 

1073, 1082 (7th Cir.1987); Thomas v. Capi- 

tal Security Services, Inc., 812 F.2d 984, 
989 (5th Cir.1987); Shrock v. Altru Nurses 
Registry, 810 F.2d 658, 661 (7th Cir.1987); 

Golden Eagle Distrib. Corp. v. Burroughs 
Corp., 801 F.2d 1531, 1540 (9th Cir.1986) 
(citing FEastway Construction Corp. v. 
City of New York, 762 F.2d 243, 254 n. 7 

(2d Cir.1985)); cf In re TCI Ltd., 769 F.2d 
441, 446 (7th Cir.1985)) (“Rule 11 was 

amended in 1983 to make it easier for a 

court to award fees, indeed perhaps to 
make the award mandatory in some 
cases.”).? 

[2,3] Our review of an order granting 

or denying Rule 11 sanctions involves sev- 

eral discrete inquiries. First, we must con- 

sider whether the district court correctly 
imposed sanctions. We review findings of 

fact that the district court used to deter- 
mine whether Rule 11 was violated under 

the clearly erroneous standard. See, e.g., 

Kurkowski v. Volcker, 819 F.2d 201, 203 n. 

8 (8th Cir.1987); Zuniga v. United Can 

Co., 812 F.2d 443, 452 (9th Cir.1987); Rob- 
inson, 808 F.2d at 1126; Golden Eagle, 

801 F.2d at 1538. However, we review de 

novo the district court’s legal conclusion 
that conduct in a particular case constitut- 

ed a violation of Rule 11. See, e.g., Szabo 

Food Service, Inc., 823 F.2d 1073 (applying 

de novo standard without discussion); 

Kurkowski, 819 F.2d at 203 n. 8; Zuniga, 

812 F.2d at 452; Robinson, 808 F.2d at 

1126; Drews & Krump Mfg. Co. v. Interna- 

tional Ass'n of Machinists, 802 F.2d 247 

(7th Cir.1986) (applying de movo standard 

without discussion); Golden Eagle, 801 

2.) We agree with the Ninth Circuit that: 
- Nothing in the language of the Rule or the 

Advisory Committee Notes supports the view 
that the Rule empowers the district court to 
impose sanctions on lawyers simply because a 
particular argument or ground for relief con- 
tained in a non-frivolous motion is found by 
the district court to be unjustified. In short, 
the fact that the court concludes that one 
argument or sub-argument in support of an 
otherwise valid motion, pleading, or other pa- 
per is unmeritorious does not warrant a find- 
ing that the motion or pleading is frivolous or 
that the Rule has been violated. 

Golden Eagle, 801 F.2d at 1540-41. 

3. We note that there appears to be a split in this 
circuit regarding whether the decision to award 

830 FEDERAL REPORTER, 2d SERIES 

F.2d at 1538. Cf. Donaldson v. Clark, 819 

F.2d 1551, 1556 (11th Cir.1987) (en banc) 

(“Whether (1) factual or (2) dilatory or bad 

faith reasons exist to impose Rule 11 sanc- 

tions is for the district court to decide 

subject to review for abuse of discretion 

... [A] decision whether a pleading or mo- 

tion is legally sufficient involves a question 

of law subject to de novo review by this 

court.” (footnote omitted) (citing West- 

moreland v. CBS, Inc, T70 F.2d 1168, 

1174-75 (D.C.Cir.1985)).3 

Second, we must consider whether the 

sanction the district court chose to impose 

was appropriate. “The amount or type of 

sanction imposed is within the district 

court’s discretion.” Thomas, 812 F.2d at 

989. Therefore, we will reverse a district 

court’s choice of an amount or a type of 

sanction only if we find an abuse of discre- 

tion. See Cheek v. Doe, 828 F.2d 395, 397 

(7th Cir.1987) (per curiam); accord Don- 

aldson, 819 F.2d at 1557; Zuniga, 812 F.2d 

at 452; Robinson, 808 F.2d at 1126; Gold- 

en Eagle, 801 F.2d at 1538. 

We first discuss what constitutes a viola- 

tion of Rule 11. Then, following the two- 

step analysis outlined above, we conclude 

that the district court was correct in impos- 

ing sanctions against Neely. We must 

then determine whether the district court’s 

award constituted an abuse of discretion by 

failing to adequately specify the basis for 

the sanctions. We conclude that such an 

abuse of discretion occurred in this case, 

and therefore remand the case for further 
proceedings. 

sanctions is a question of law and subject to de 
novo review, because the rule contains manda- 

tory language, or whether the decision to im- 

pose sanctions is subject to an abuse of discre- 
tion standard. Compare Szabo Food Service, 
Inc., 823 F.2d at 1082 (mandatory) and Shrock 

v. Altru Nursing Registry, 810 F.2d 658, 661 (7th 
Cir.1987) (same) with R.K. Harp Inv. Corp. v. 

McQuade, 825 F.2d 1101, 1103 (7th Cir.1987) 

(decision to award sanctions is subject to an 

abuse of discretion). We believe that the better 

view is that of Szabo Food Service and Shrock, 

and that this is the emerging trend as evidenced 
by recent decisions from other circuits. We 
therefore adopt as the rule in this circuit that 
once a violation of Rule 11 is found, sanctions 
must be imposed.  



  

Clark, 819 

(en banc) 

ory or bad 
ile 11 sane- 

to decide 
¢ discretion 
ling or mo- 

: a-question 

ew by this 

ing West- 
F.2d 1168, 

‘hether the 
» to impose 

or type of 
he district 

12 F.2d at 

e a district 

a type of 
e of discre- 
2d 395, 397 

‘cord Don- 

a, 812 F.2d 

126; Gold- 

tes a viola- 
1g the two- 

‘e conclude 
:t in impos- 
We must 

rict court's 

scretion by 
e basis for 

at such an 

this case, 

for further 

subject to de 
tains manda- 

‘ision to im- 

ise of discre- 

ood Service, 

and Shrock 

558, 661 (7th 

Inv. Corp. v. 
’th Cir.1987) 

ubject to an 

1at the better 
and Shrock, 

as evidenced 

ircuits. We 

; circuit that 

1d, sanctions 

III. 

A. 

[4] The standard for imposing sanctions 

under Rule 11 is an objective determination 

of whether a sanctioned party's conduct 

was reasonable under the circumstances. 

See Dreis & Krump Mfg. v. International 

Ass'n of Machinists, 802 F.2d 247, 255 (7th 

Cir.1986) (collecting cases); Brown v. Na- 

tional Board of Medical Examiners, 800 

F.2d 168, 171 (7th Cir.1986); accord Kur- 

Lowski v. Volcker, 819 F.2d 201, 204 (8th 

Cir.1987); Robinson v. National Cash Reg- 

ister Co., 808 F.2d 1119, 1127 (5th Cir.1987) 

(collecting cases). Subjective bad faith is 

no longer the crucial inquiry. See, e.g. 

Brown, 800 F.2d at 171. The Advisory 

Committee Note, 97 F.R.D. 198 (1983), 

makes clear that it was the intent of the 

committee “to reduce the reluctance of 

courts to impose sanctions.” Id. The ob- 

jective standard incorporated into the 1983 

revisions was meant to be more stringent 

than the original good-faith formula, and 

thus it was expected that a greater range 

of circumstances would trigger its viola- 

tion. Id. at 198-99. As the Ninth Circuit 

has stated recently, “the [1983] amend- 

ments’ major purposes were the deterrence 

of dilatory or abusive pretrial tactics and 

the streamlining of litigation.” Golden 

Eagle Distrib. Corp. v. Burroughs Corp. 

801 F.2d 1531, 1536 (9th Cir.1986) (discuss- 

ing views of advisory committee members). 

[5] Rule 11 contains two grounds for 

sanctions. Each ground is concerned with 

eliminating abuses in the federal courts. 

The first ground is the “frivolousness 

clause.” Zaldivar v. City of Los Angeles, 

780 F.2d 823, 830 (9th Cir.1986); see Szabo 

Food Service, Inc. v. Canteen Corp., 823 

F.2d 1073, 1080 (7th Cir.1987). This por- 

tion of Rule 11 is composed of two sub- 

parts: whether the party or attorney made 

4. We have recently explained the adequate in- 

vestigation rule: 

The principal function of the 1983 amend- 

ment to Rule 11 was to add the requirement 

of adequate investigation before filing a com- 

plaint. It is not permissible to file suit and 

use discovery as the sole means of finding out 

whether you have a case. Discovery fills in 

BROWN v. FEDERATION OF STATE MEDICAL BOARDS OF US. 1435 

Cite as 830 F.2d 1429 (7th Cir. 1987) 

a reasonable inquiry into the facts, and 

whether the party or attorney made a rea- 

sonable inquiry into the law. See Thomas 

v. Capital Security Services, Inc., 812 

F.2d 984, 988 (5th Cir.1987). A violation of 

either subpart of the frivolousness clause 

constitutes a violation of Rule 11. See id. 

at 989. 

[6] To determine whether the attorney 

made a reasonable inquiry into the facts of 

a case, a district court should consider: 

whether the signer of the documents had 

sufficient time for investigation; the extent 

to which the attorney had to rely on his or 

her client for the factual foundation under- 

lying the pleading, motion, or other paper; 

whether the case was accepted from anoth- 

er attorney; the complexity of the facts 

and the attorney's ability to do a sufficient 

pre-filing investigation; and whether dis- 

covery would have been beneficial to the 

development of the underlying facts. See 

Advisory Committee Note, 97 F.R.D. at 

199: R.K. Harp Investment Corp. v. 

McQuade, at 1103-04 (7th Cir. June 23, 

1987); Thomas, 812 F.2d at 983 (citations 

omitted).! 

[71 To determine whether the attorney | 

in question made a reasonable inquiry into 

the law, the district court should consider: 

the amount of time the attorney had to 

prepare the document and research the rel- 

evant law; whether the document con- 

tained a plausible view of the law; the 

complexity of the legal questions involved; 

and whether the document was a good 

faith effort to extend or modify the law. 

See Advisory Committee Note, 97 F.R.D. 

at 199; Thomas, 812 F.2d at 988. Whether 

a party is appearing pro se may be relevant 

to either determination under the frivolous- 

ness clause. See Cheek v. Doe, 828 F.2d 

395, 397 (7th Cir.1987) (per curiam); Reis v. 

Morrison, 807 F.2d 112, 113 (7th Cir.1986) 

(per curiam). 

the details, but you must have the outline of a 

claim at the beginning. Rule 11 requires in- 

dependent inquiry. 

Szabo Food Service, 823 F.2d at 1083 (citations 

omitted). See also Federal Deposit Insurance 

Corp. v. Elefant, 790 F.2d 661, 667 (7th Cir. 

1986). In this case, Neely did not even have the 

outline of a claim. 

| 

| 

a 

N 

i 
i 

| 

a” 

x #) 

  
  

  

    

  

  

  

 



1436 

[8] The other prong of Rule 11, the 

“improper purpose” clause, Zaldivar, 780 
F.2d at 831, provides that a motion, plead- 

ing, or other document may not be inter- 

posed for purposes of delay, harassment, 

or increasing the costs of litigation. Fed. 
R.Civ.P. 11. Like the frivolousness clause, 

whether a party or attorney acted with TY 

improper purpose is based on an objective 

standard. However, we have noted that 

subjective bad faith or malice may be im- 

portant when the suit is objectively color 

able. See In re TCI Ltd., 769 F.2d 441, 445 

(7th Cir.1985). “The Rule effectively picks 

up the torts of abuse of process (filing an 

objectively frivolous suit) and malicious 

prosecution (filing a colorable suit for the 

purpose of imposing expense on the de- 

fendant rather than for the purpose of 

winning).” Szabo Food Service, 823 F.2d 

at 1083 (citations omitted). Subjective bad 

faith is relevant in situations involving ma- 

licious prosecution of claims, although not 

in situations where a party has repeatedly 

pursued implausible claims. See Hill v. 

Norfolk & W. Ry., 814 F.2d 1192, 1202 (7th 

Cir.1987). Cf. Garrett v. City and County 

of San Francisco, 818 F.2d 1515, 1521 (9th 

Cir.1987) (citing Zaldivar, 780 F.2d at 831- 
32). 

B. 

[9] In this case, the district court im- 

posed sanctions under both prongs of the 

frivolousness clause. The district court's 

conclusion that Neely failed to make an 

adequate inquiry into the facts of the case 

prior to filing the second amended com- 

plaint is correct. Also, the court was cor- 

rect in concluding that Neely did not make 

a reasonable investigation into the law. 

The ADEA claim was totally unsupported 

by the existing law, and the § 1983 claims, 

although a closer question, were not war- 

ranted by the law. Finally, the § 1981 

claims were legally insufficient. Thus, all 

of the counts in the second amended com- 

plaint failed the standards contained in 

Rule 11, and the district court correctly 
imposed sanctions. 

Neely failed to make an adequate investi- 

gation as to whether the second amended 

830 FEDERAL REPORTER, 2d SERIES 

complaint was supported by the facts. 

Neely was the third lawyer to represent 

Brown, and a reasonable attorney would 

have inquired as to why the previous attor- 

neys had left the case. Also, at the time 

Neely entered the case, the record demon- 

strated that Brown's claims were not sup- 

ported by the facts. Thus, because the 

record had been developed at the time Nee- 

ly became Brown's attorney, Neely did not 

have to rely on Brown for the factual foun- 

dation to support the case. Therefore, 

Neely must share responsibility for filing 

the second amended complaint. Moreover, 

the defendants produced what documents 

they had, and put forth unrebutted evi- 

dence that they routinely destroyed exam 

books. This information made clear that 

Brown had no claim. Furthermore, it is 

clear that the facts of this case were not so 

complicated as to cause a reasonable attor- 

ney to file a complaint such as the one 

Neely filed. Finally, Neely does not claim 

that he did not have sufficient time to 

investigate. Therefore, we conclude that 

Neely failed to make the reasonable in- 

quiry that Rule 11 requires to determine 

whether the second amended complaint 

was well-grounded in the facts of the case. 

Although Rule 11 does not require ‘“schol- 

arly exposition or exhaustive research,” 

Szabo Food Service, 823 F.2d at 1081, Nee- 

ly failed to make the minimal amount of 

inquiry incumbent on a competent attorney. 

[10] Neely also failed to make a reason- 

able inquiry as to whether the second 

amended complaint was supported by the 

existing law. The ADEA claim clearly 

lacked merit. Because Neely had failed to 

file a complaint with the EEOC, the district 

court lacked jurisdiction. See Mull wv. 

ARCO Durethene Plastics, Inc., 7184 F.2d 

284, 287 (7th Cir.1986); Posey v. Skyline 

Corp., 702 F.2d 102, 104 (7th Cir.), cert. 

denied, 464 U.S. 960, 104 S.Ct. 392, 78 
L.Ed.2d 336 (1983). 

[11] The § 1983 claim is more compli 

cated, however. The state action doctrine 

is complex and fluid. This is evidenced by 

the large number of Supreme Court cases 

on the subject in recent years. See gener- 

ally 2 R. Rotunda, J. Nowak, & J. Young,  



  

7 the facts, 

to represent 
orney would 
‘evious attor- 
. at the time 
>cord demon- 
‘ere not sup- 

because the 

he time Nee- 
leely did not 
factual foun- 

Therefore, 
ty for filing 

Moreover, 
¢ documents 
ebutted evi- 

royed exam 

e clear that 

rmore, it is 

were not so 

»nable attor- 

as the one 

es not claim 
ant time to 

nclude that 

isonable in- 

o determine 

1 complaint 

of the case. 

‘uire “schol- 

© research,” 

t 1081, Nee- 

amount of 

nt attorney. 

Ke a reason- 

the second 

rted by the 
aim clearly 
ad failed to 

the district 

e Mull ». 
>, 184 F.2d 

v. Skyline 

Cir.), cert. 

ot. 392, 78 

ore compli- 

on doctrine 

sidenced by 

Jourt cases 

See gener- 
7 J. Young, 

BROWN v. FEDERATION OF STATE MEDICAL BOARDS OF US. 1437 
Cite as 830 F.2d 1429 (7th Cir. 1987) 

Treatise on Constitutional Law Sub- 

stance and Procedure, ch. 16 (discussing 

state action). In this case, the district 

court dismissed the § 1983 claims for lack 

of state action, although it expressly did 

not decide whether the § 1983 claims were 

so “untenable” as to justify sanctions. See 

Brown v. Federation of State Medical 

Boards, No. 82 C 7398, slip op. at 18 (N.D. 
Ill. May 25, 1985). However, in the district 

court's April 29, 1986 order, it assessed 

fees apparently because the § 1983 claims 

were ‘‘untenable.” Although we agree 

with the court that the § 1983 claims were 

not supported by the law, and therefore 

subject to sanctions, the court should have 

specified why it believed these claims were 
sanctionable. Such an express finding 

would assist this court's review. 

The district court found that the § 1981 

claims were facially defective because 

Brown failed to allege intent, injury, or 

causation, and because Brown failed to in- 

dicate which of the four enumerated activi- 
ties in § 1981 was in issue. We agree with 

the district court that, as filed, the § 1981 

claims in the second amended complaint 

were legally deficient. Neely made an in- 

complete legal argument, and a reasonably 

competent attorney should have been 

aware of how to properly allege a § 1981 

claim. As with the § 1983 claims, we up- 

hold the award of sanctions, although an 

express finding that the § 1981 counts 

were sanctionable would have made our 

review simpler. 

Although we agree with the district 

court that this case warranted the imposi- 

tion of sanctions, we note that courts must 

be careful not to chill either creativity or 

objectively reasonable efforts to extend or 

change the law. See Szabo Food Service, 

823 F.2d at 1082 (“[A] court must take care 

not to penalize arguments for legal evolu- 

tion.”); TCI, 769 F.2d at 448. This holds 

true especially when constitutional doc- 

trines are involved, although we do not 

mean to suggest that any constitutional 

argument, regardless of its lack of merit, is 

shielded from Rule 11 sanctions.’ 

5. Because the district court did not address 
whether the second amended complaint was 

    

   
     

    
   

    

     

   
   
    

   

     
   
   

    
   
   

    
   

    
    

   

    

  

    

    

   

   

    

   
   
   
   
   

     

    

   
   

   

   

  

   
   

IV. 

[12] The next step in our analysis is to 

determine whether the district court's ac- 

tion constituted an abuse of discretion, be- 

cause it failed to state with some specificity 

the reasons for the imposition of the sanc- 

tion, and the manner in which it was com- 

puted. We conclude that the district 

court’s lump-sum award was deficient in 

this regard, because the court’s findings 

lacked the necessary specificity for this 

court to review and uphold the award. 

Therefore, we remand this case for a rede- 

termination of the amount of Rule 11 sanc- 

tions that should be imposed. 

A. 

[13] Due to the impact sanctions may 

have on a party or an attorney’s career and 

personal well-being, sanctions should not 

be lightly imposed. See Robinson v. Na- 

tional Cash Register Co., 808 F.2d 1119, 

1131 (5th Cir.1987). Thus, the basic princi- 

ple underlying Rule 11 is that “[i]n choos- 

ing a sanction ... ‘the least severe sanction 

[that is] adequate to serve the purpose 

should be imposed.” ” Cabell v. Petty, 810 

F.2d 463, 466 (4th Cir.1987) (footnote omit- 

ted) (quoting Schwarzer, Sanctions Under 

the New Federal Rule 11—A Closer Look, 

104 F.R.D. 181, 201 (1985); see Eastway 

Construction Corp. v. City of New York, 

637 F.Supp. 558, 565 (E.D.N.Y.1986), affd, 

821 F.2d 120, 123 (2d Cir.1987). 

Although a district court should always 

keep in mind this basic principle, it must do 

so in light of Rule 11's several related 

purposes. In In re TCI, Ltd., 769 F.2d 441 

(7th Cir.1985), we explained that one of the 

goals of Rule 11 is to impose costs on the 

careless or reckless lawyer. Compensation 

is one thrust of Rule 11, we noted, primari- 

ly because Rule 11 was designed to imple- 

ment the “bad faith exception to the Ameri- 

can Rule ... that in a system requiring 

each party to bear its own fees and costs, 

courts will ensure that each party really 

does bear the costs and does not foist ex- 

also filed for a harassing or vexatious purpose, 
we do not address that issue on appeal. 

  

=
 

    
    
    

       



1438 

penses off on its adversaries.” Id. at 446; 

see also Thornton v. Wahl, 187 F.2d 1151, 

1154 (7th Cir.), cert. denied, — U.S. —, 

107 S.Ct. 181, 93 L.Ed.2d 116 (1986) (“Coun- 
sel who puts the burden of study and illu- 

mination on the defendants or the court 

must expect to pay attorneys’ fees under 
Rule 11.”) (citations omitted). 

[14] Compensation, although an impor- 
tant consideration, is not the only purpose 

underlying Rule 11. An even more impor- 

tant purpose is deterrence. “Widespread 

concern over frivolous litigation and abu- 

sive practices of attorneys led to the 

amendment in 1983 of Rule 11....” 

Schwarzer, 104 F.R.D. at 181; see also 

Dreis & Krump Mfg. Co. v. International 

Ass'n of Machinists, 802 F.2d 247, 255 (7th 

Cir.1986) (Collecting cases from this circuit 

imposing sanctions for “groundless litiga- 

tion.”). Sanctions under Rule 11 have the 

function of deterring both the individual 

attorney (or party) and other members of 

the bar (or other potential litigants) from 

taking the same frivolous course of action. 

As we recently stated: “Rule 11 is de- 

signed to discourage unnecessary com- 

plaints and other filings....” Szabo Food 

Service, Inc. v. Canteen Corp., 823 F.2d 

1073, 1077 (7th Cir.1987) (citations omitted); 

see Kurkowski v. Volcker, 819 F.2d 201, 

204 (8th Cir.1987); Matter of Yagman, 796 

F.2d 1165, 1184 (9th Cir.1986). As the Sec- 

ond Circuit recently has noted, “an award 

of attorney’s fees to a prevailing defend- 

ant, under either section 1988 or Rule 11, 

serves not only as compensation ... but 

also as a sanction against the [offending 

partyl” Eastway Construction Corp. 
821 F.2d at 122. 

B. 

The general principles that underlie Rule 

11 should be considered in fashioning any 

Rule 11 sanction. Precisely how the dis- 

trict court should impose a sanction, how- 
ever, requires further discussion. 

In Szabo Food Service, we noted that: 

Twice in recent months we have en- 

countered cases in which district judges 

denied substantial motions for sanctions 

without giving reasons. Twice we have 

830 FEDERAL REPORTER, 2d SERIES 

remanded for more complete considera- 
tion. Shrock v. Altru Nurses Registry, 
810 F.2d 658 (7th Cir.1987); Dreis & 
Krump Manufacturing Co. v. Machin- 
ists & Aerospace Workers, 802 F.2d 247 
(7th Cir.1986). 

Szabo Food Service, 823 F.2d at 1075. We 
followed the same course in Szabo Food 
Service and remanded, declining at that 
time to join the Fifth Circuit “in requiring 

judges to make findings and give explana- 

tions every time a party seeks sanctions 

under Rule 11.” Id. at 1084 (citing Thom- 

as v. Capital Security Services, Inc., 812 
F.2d at 989). 

[15] Unlike the district court in Szabo, 
the district court in this case granted the 

motion for sanctions. However, here we 

conclude that the district court did not pro- 
vide adequate specificity in the award of 

sanctions. In light of the need for this 

court to again remand for more particular 

findings, we now request that in cases in- 

volving substantial awards a district judge 

state with some specificity the reasons for 

the imposition of a sanction, and the man- 

ner in which the sanction was computed. 

What is a “substantial” award is an inquiry 
that will have to be made on a case by case 

basis, but will generally involve cases in 

which the award involves a large sum of 

money or is large in relation to the offend- 

ing conduct. Moreover, the sanctions 

awarded must ‘be quantifiable with some 

precision and properly itemized in terms of 

the perceived misconduct and the sanction- 

ing authority.” Matter of Yagman, 796 

F.2d at 1184. What we mean by “quantifi- 

able with some precision” is an award that 

sufficiently incorporates the district court’s 

findings and conclusions so that a review- 

ing court can effectively review the justifi- 

cation for granting the award. If the dis- 

trict court makes specific determinations, 

then the appellate court can clearly follow 

the path that the district court took. “It is 

difficult [for an appellate court] to assess 

the reasonableness of a lump-sum sanc- 

tions award ... which is intended to cover 

a myriad of misconduct over a period of 

time and is based upon a variety of authori 

ty.” Matter of Yagman, 796 F.2d at 1184;  



  

e considera- 

es Registry, 
); Dreis & 

v. Machin- 

302 F.2d 247 

it 1075. We 

Szabo Food 

ing at that 
in requiring 
ve explana- 

ks sanctions 
iting Thom- 

28, Inc., 812 

rt in Szabo, 

granted the 
er, here we 
did not pro- 

ie award of 
‘ed for this 

‘e particular 
in cases in- 
istrict judge 

reasons for 

nd the man- 

3 computed. 

Ss an inquiry 
>ase by case 

ve cases in 
irge sum of 
the offend- 

> sanctions 

: with some 

in terms of 
‘he sanction- 

gman, 796 

y “quantifi- 
award that 

strict court's 
at a review- 

» the justifi- 
If the dis- 

srminations, 

early follow 

took. “Itis 

t] to assess 

»sum sanc- 

led to cover 

a period of 

r of authori- 

2d at 1184; 

BROWN v. FEDERATION OF STATE MEDICAL BOARDS OF US. 1439 

Cite as 830 F.2d 1429 (7th Cir. 1987) 

see Oliveri v. Thompson, 803 F.2d 1265, 

1275 (2d Cir.1986); cf. Munson v. Friske, 

754 F.2d 683, 697 (7th Cir.1985) (same rule 

in § 1988 cases). 

[16] In some cases, the district court 

may choose to give a small portion of the 

fees requested as a sanction. Compensa- 

tion would not be the primary motivating 

force behind such a sanction; rather, deter- 

rence of the frivolous litigation would be 

the court's purpose. Rule 11 is the appro- 

priate vehicle to punish those who abuse 

their right of access to the federal courts. 

The Advisory Committee Note makes clear 

that the “detection and punishment of a 

violation ... is part of the court’s responsi- 

bility for securing the system’s effective 

operation.” Advisory Committee Note, 97 

F.R.D. at 200 (emphasis added). The spe- 

cific findings requirement would not be ap- 

propriate when the imposition of modest 

sanctions is solely for the purpose of deter- 

rence. See Ordower v. Feldman, 826 F.2d 

1569, 1575-76 (7th Cir.1987). In a case 

where deterrence is the purpose behind the 

sanction, the trial court must strive to im- 

pose a sanction that fits the inappropriate 

conduct. 

[17] Finally, in appropriate cases, a dis- 

trict court should reflect upon equitable 

considerations in determining the amount 

of the sanction. Although equitable con- 

siderations are not relevant to the initial 

decision to impose sanctions (because that 

is a question of law), once a court deter- 

mines that sanctions are appropriate, eq- 

uitable factors may be an ingredient in the 

discretionary aspect of Rule 11—fashioning 

an award. 

One equitable consideration, perhaps rel- 

evant to this case, is the sanctioned attor- 

ney’s (or party's) assets. See Oliveri, 803 

6. We note that the defendants justify the great 

amount of time they spent at trial by stating that 

“the appellees take their responsibilities under 

the law extremely seriously and believe that the 

integrity of medical licensure in the United 

States might be critically harmed if claims 

groundless in fact, but dressed up as civil rights 

complaints, were allowed to proceed through 

trial for lack of a complete and effective de- 

F.2d at 1281 (collecting cases); Matter of 

Yagman, 796 F.2d at 1185; cf. Munson, 

754 F.2d at 697. Another consideration is 

whether the party seeking fees caused the 

litigation to be longer than necessary. See 

Matter of Yagman, 796 F.2d at 1188. A 

duty of mitigation exists, and a district 

court should ensure that the party request- 

ing fees has not needlessly protracted the 

litigation. See Schwarzer, 104 F.R.D. at 

203 (“A party having vigorously resisted a 

baseless claim may therefore find that the 

court, in making an award, will consider its 

expenditures to have been excessive.” 

(footnote omitted). Other equitable 

factors may include the experience of the 

lawyer, and whether the area of law was 

one that required special expertise. 

C. 

In this case, we conclude that the district 

court’s action constituted an abuse of dis- 

cretion, because the court, in its decision to 

award a substantial lump-sum payment to 

each of the defendants, did not provide 

sufficient specificity for the basis of its 

decision. Therefore, the district court's 

findings are inadequate for this court to 

review. 

[18] On remand, if the district court 

reimposes such a substantial sanction, it 

should state with some specificity the rea- 

son for the imposition of the sanction, and 

the manner in which it was computed. An 

estimation of what amount of time was 

reasonably needed to defend against each 

of the frivolous claims should be made, 

including an examination of each submitted 

fee petition, with the district court making 

appropriate adjustments.® Finally, the dis- 

trict court may wish to further reflect upon 

equitable factors in fashioning its award. 

fense.” Df. Br. at 15. We understand that a 

party will want to vigorously defend its posi- 

tion. Nevertheless, a party should always re- 

member that, in seeking to support its views, it 

should not protract or complicate frivolous liti- 

gation. Clearly frivolous litigation may be re- 

butted quite simply without a flurry of doc- 

uments. 

  

  
 



1440 

In TCI we quite clearly stated that 

“[lJawyers who litigate recklessly must 
now take the consequences.” TCI 796 
F.2d at 446. The consequences are that if 
an attorney imposes high costs on the other 

party, he or she will have to pay them. 

However, in TCI we did not say that the 

offending attorney or party would always 

be required to pay all the fees and costs 

that could be assessed. Instead, costs and 

fees must be assessed in light of the pur- 

poses of Rule 11. As we have stated, “fee 

awards are an equitable matter, thereby 

permitting the district court to consider the 

relative wealth of the parties.” Munson, 
754 F.2d at 697. 

Y. 

Rule 11 has created a burgeoning body 

of law, despite the advisory committee's 

plea that litigation over fees not become 
“satellite litigation.” See Advisory Com- 
mittee Note, 97 F.R.D. at 201; see also 

Golden Eagle, 801 F.2d at 1541. Unfortu- 
nately, as in so many other cases, see, e.g. 

Golden Eagle, 801 F.2d at 1541, the satel- 

lite Rule 11 litigation in this case has taken 
over. 

To avoid prolonging and complicating 

such Rule 11 satellite litigation, we have 

sought to provide the district courts with 

some guidance as to the criteria this court 

will use in evaluating a Rule 11 award. 

District courts should provide specific find- 

ings when awarding substantial compensa- 

tory sanctions. However, because Rule 11 

serves a deterrence function as well, such 

findings are not always necessary. Fur 

thermore, when formulating the sanction, 

the district court should consider both the 

purposes of Rule 11 that are to be served 

and equitable factors. We fully recognize 

the heightened responsibilities that this 

opinion requires of district court judges. 

We believe, however, that it is in accord- 

ance with the policy behind Rule 11. Also, 

our holding should advance the goal of 

efficient judicial administration by lessen- 

7. The defendants have requested that we impose 
sanctions, pursuant to Federal Rule of Appellate 
Procedure 38, against Neely for filing a friv- 

830 FEDERAL REPORTER, 2d SERIES 

ing the need to remand future cases for 
further findings. 

As we have stated: “judges should al- 
ways seriously reflect upon the nuances of 
the particular case, and the implications the 
case has on the nature of the legal repre- 
sentation, before imposing sanctions.” 
Brown, 800 F.2d at 173. Nevertheless, 
attorneys and laypersons who use the fed- 
eral courts may not “proceed with impunity 
when [an] argument has no merit.” Rob- 
inson, 808 F.2d at 1131. As Judge Posner 
recently stated: 

Mounting federal caseloads and growing 
public dissatisfaction with the costs and 
delays of litigation have made it impera- 
tive that the federal courts impose sane- 
tions on persons and firms that abuse 
their right of access to these courts. 
The rules, whether statutory or judge- 
made, designed to discourage groundless 
litigation are being and will continue to 
be enforced in this circuit to the hilt... . 

Dreis & Krump Mfy., 802 F.2d at 255 
(citations omitted); see Szabo Food Ser- 
vice, 823 F.2d at 1082 (“We take Rule 11 
and its counterpart Fed.R.App.P. 38 seri- 
ously and expect district judges, lawyers, 
and litigants to do the same.” (citations 
omitted)). 

The portions of the district court’s orders 
granting Rule 11 sanctions are AFFIRMED. 
The portions of the district court’s orders 

determining the amount of sanctions are 

VACATED, and the case is REMANDED for 

proceedings consistent with this opinion.’ 

O & KEY NUMBER SYSTEM 

olous appeal. As our disposition of this case 
makes clear, this appeal was not frivolous.  



      

ere true by stipulation cit, 
1 and 26(g); Li 
ing of a psychologist and 3 
as experts to show ep. 

:8s claimed to have been 
1e alleged libel and slander 
ting Rules 11, 26(g) and 28 
27; and 

her improprieties Connect- 
gations in the defendant’g 
,, including an accusation 
id Mr. & Mrs. Gaik (the 
BA) had hired someone to 
ueller’s home, and an alle- 

the defendants were 
‘lowed or harassed. 

lanner granted IBA’s ini- 
sanctions and assessed 

contesting whether or not 
iployee of IBA. Addition. 
led in favor of IBA on its 
ion for sanctions, and or- 
mal assessment against 
mnt of $31,902, half of the 
warded to IBA. 

I Request for Sanctions 

r not Martin was an em- 
as a crucial issue in the 
es that he reasonably dis- 
not Martin was employed 
he record did not clearly 
er-employee relationship. 
his only source of infor- 

r Martin was an employ- 
Martin himself. Martin 
n, Gavin argues, numer- 

: he also testified at trial 
um of independent con- 
Gavin further contends 

1s of marketing group insur- 
ither acted as an advisor and 
537.) 

worked for a number of 

1s in which Casey Gaik had 
did not perform services ex- 

(Tr. 535, 537.) 

observed his own hours, and 

his own discretion, without 

ntrol. (Tr. 540.) 

‘as not treated like the other 

intiff. (Tr. 535.) 

  

2 i Rie roe BE —__.=. 

Cori 
. Wom J. £20 “i Y) {1 Wm 

Th ROHR ATTCAIALYD LIMYNLIYS 

INSURANCE BEN. ADMINISTRATORS, INC. v. MARTIN 1357 
Cite as 871 F.2d 1354 (7th Cir{1989) 

that he could not rely upon IBA’s owners 

or upon documents supporting this ar- 

rangement because there was no agree- 

ment reduced to writing. 

[BA argues in response that evidence 

adduced during discovery and offered by 

IBA at trial established that although Mar- 

tin initially was retained on a free-lance 

basis in late 1981, he became a salaried 

employee in January 1982, was placed on 

[BA’s payroll and began to have income 

and Social Security taxes withheld from his 

pay. He was given a title and an office, 

and a staff was hired to work under him. 

Martin himself conceded at trial that he 

was an employee of IBA. 

Quite aside from the trial testimony it- 

self, however, IBA points out that it estab- 

lished Martin's employee status at trial 

mainly through documentary evidence that 

had been available to Gavin before he 

signed the pleadings in question. W-2 

forms provided to Martin by IBA listed 

Martin as “employee” and IBA as his “em- 

ployer.” In October, 1985, Martin filed a 

wage claim application with the Illinois De- 

partment of Labor seeking recovery of 

wages, payment for “two weeks notice” 

(presumably this is severance pay) and for 

unpaid vacation and sick leave. He listed 

his “employer” as IBA, stated that he was 

its “Advertising Director,” and “salaried,” 

and that he worked an eight-hour day. 

These documents were noted by Judge Get- 

zendanner in her opinion. 

In addition, a new W—4 form filled out by 

Martin in July, 1983, listed IBA as “em- 

ployer” and was signed by Martin in the 

space marked “employee.” Beginning in 

1982, moreover, Martin was paid with IBA 

payroll checks, and IBA withheld Social 

Security and income taxes therefrom. 

Martin's performance was appraised by 

(vi) That Gaik advised Martin to keep Gaik's 
interests and activities confidential from the 

employees of Plaintiff. (Tr. 535.) 
(vii) That Martin entered into a verbal agree- 
ment with Gaik to establish an advertising 
agency in which they were to be partners. 
(Tr. 570-72.) 

3. A note of caution is warranted. If Gavin had 
asserted that he deliberately was misled by Mar- 
tin into making a denial of employment, we 
would have an entirely different, and very seri- 

871 F.2d—31 

IBA in 1982 and 1983 on forms identifying 

him as “employee,” which forms were 

signed by him in a space marked “employ- 

ee’s signature.” 

Gavin does not deny that these doc- 

uments existed, nor does he claim that they 

were not available to him before he signed 

any of the pleadings in question. Rather, 

he claims that these were “factors” to be 

weighed against other “incidents of the 

[employee-employer] relationship” in order 

to determine employee status, citing NLRB 

v. United Ins. Co. of Am., 390 U.S. 254, 

258 88 S.Ct. 988, 999, 19 L.Ed.2d 1083 

(1968). We disagree. 

Gavin, as discussed above, relied on Mar- 

tin’s statements for the facts he claims 

support Martin's claim of independent con- 

tractor status.® Yet these documents, 

which clearly belie this claim, existed and 

were available to Gavin at that time. Cf. 

Brown v. Federation of State Medical 

Bds., 830 F.2d 1429, 1436 (7th Cir.1987) 

(where record was developed by the time 

third lawyer was substituted in the case, it 

was not necessary for him to rely on his 

client for the factual foundation). 

Under Rule 11, attorneys are required to 

make a reasonable inquiry to determine 

whether pleadings or other documents they 

sign are well-grounded in fact and warrant- 

ed by existing law. If the district court 

concludes that the motion, pleading, or oth- 

er document was not well-grounded in fact 

or warranted by the existing law, or was 

meant to harass, then the court must im- 

pose a sanction. Fed.R.Civ.P. 11; Brown, 

830 F.2d at 1433. 

There are two grounds for sanctions in 

Rule 11: the “frivolousness clause” and 

the “improper purpose clause.” As set 

forth in Brown, the frivolousness clause of 

—~— 
~ 

ous problem. Such an assertion would pit the 

attorney against his client to enable the attorney 

to defend against the request for sanctions. 

This scenario obviously presents far-ranging im- 

plications which we do not face in this case. 

See, e.g, Calloway v. Marvel Entertainment 

Group, 854 F.2d 1452, 1471, 1475-77 Qd Cir, 

1988), cert. granted sub nom. Pavelic & LeFlore 

v. Marvel Entertainment Group, — U.S. —, 

109 S.Ct. 1116, 103 L.Ed.2d 179 (1989).



1358 

Rule 11 has two subparts: whether the 

party or attorney made a reasonable in- 

quiry into the facts, and whether the party 

or attorney made a reasonable inquiry into 

the law. Brown, 830 F.2d at 1435-36. 

Similar to the district judge in Brown, the 

trial court’s ruling here seems to be based 

on Gavin's failure to make reasonable in- 

quiries into either the facts or the law, 

which violated the two subparts of the friv- 

olousness clause. See Thomas v. Capital 

Security Services, Inc., 812 F.2d 984, 988 

(5th Cir.1987), aff'd in part, vacated and 

remanded in part, 836 F.2d 866 (5th Cir. 

1988) (en banc). 

In Brown, we analyzed the inquiries a 

district court must make in determining 

whether an attorney’s conduct has violated 

the frivolousness clause thus: 

To determine whether the attorney 

made a reasonable inquiry into the facts 

of a case, a district court should consider: 

whether the signer of the documents had 

sufficient time for investigation; the ex- 

tent to which the attorney had to rely on 

his or her client for the factual founda- 

tion underlying the pleading, motion, or 

other paper; whether the case was ac- 

cepted from another attorney; the com- 

plexity of the facts and the attorney's 

ability to do a sufficient prefiling investi- 

gation; and whether discovery would 

have been beneficial to the development 

of the underlying facts.... 

To determine whether the attorney in 

question made a reasonable inquiry into 

the law, the district court should consid- 

er: the amount of time the attorney had 

to prepare the document and research 

the relevant law; whether the document 

contained a plausible view of the law; 

the complexity of the legal questions in- 

volved; and whether the document was a 

good faith effort to extend or modify the 

law. 

Brown, 830 F.2d at 1435 (citations omitted). 

We review the factual findings made by 

the district court in deciding whether Rule 

4. The opinions employing the abuse of discre- 

tion standard have noted that they have done so 

because whether a party has violated Rule 11 is 

a judgment call. Central Ice Cream, 836 F.2d at 

1052. Trial courts, moreover, have “an intimate 

familiarity with the relevant proceedings,” R.K. 

871 FEDERAL REPORTER, 2d SERIES 

11 was violated under the clearly erroneous 

standard. Stotler & Co. v. Able, 870 F.2d 

1158, 1166 (7th Cir.1989); Borowski v. De 

Puy, Inc., 850 F.2d 297, 304 (7th Cir.1988); 

Brown, 830 F.2d at 1434; Szabo Food Ser- 

vice, Inc. v. Canteen Corp., 823 F.2d 1073, 

1082 (7th Cir.1987), cert. dismissed, — 

U.S. —, 108 S.Ct. 1101, 99 L.Ed.2d 229 

(1988). 

Whether or not there was a Rule 11 

violation, however, has been subject to ap- 

pellate review in this circuit under two 

different standards. Some opinions have 

employed the abuse of discretion standard. 

See, e.g., FDIC v. Tekfen Constr. & Instal- 

lation Co., 847 F.2d 440, 443 (7th Cir.1988); 

In re Ronco, Inc., 838 F.2d 212, 217 (Tth 

Cir.1988); In re Central Ice Cream Co. 

836 F.2d 1068, 1072 (7th Cir.1987); Ordow- 

er v. Feldman, 826 F.2d 1569, 1574 (7th 

Cir.1987); R.K. Harp Investment Corp. v. 

McQuade, 825 F.2d 1101, 1103 (7th Cir. 

1987). Other cases in this circuit have em- 

ployed a de movo standard of review in 

addressing whether a party or attorney 

violated Rule 11. See, e.g., Fred A. Smith 

Lumber Co. v. Edidin, 845 F.2d 750, 751 

(7th Cir.1988); Brown, 830 F.2d at 1429 

(citing Szabo Food Service, 823 F.2d at 

1082); Shrock v. Altru Nurses Registry, 

810 F.2d 658, 661 (7th Cir.1987) (applies de 

novo standard without discussion).! In 

this case, however, it does not matter 

which standard of review we employ: we 

conclude that Rule 11 was violated under 

either standard. Magnus Electronics, Inc. 

v. Masco Corp. of Ind., 871 F.2d 626, 630 

(7th Cir.1989); Stotler & Co., 810 F.2d at 

1166-67. 

[2] If a determination is properly made 

that sanctions are warranted, the district 

court shall impose a sanction. Frantz v. 

United States Powerlifting Fed'n, 836 

Harp, 825 F.2d at 1103. Thus, they urge that 

“the ultimate findings regarding sanctions 

should receive deference and be rejected only if 

the district court has abused its discretion.” 

Tekfen, 847 F.2d at 443.   on B55 Fs BI Mnf crim ists is ac



  

ar the clearly erroneous 

% Co. v. Able, 870 F.24 

1989); Borowski v. De 

297, 304 (7th Cir.1988); 

1434; Szabo Food Ser- 

n Corp., 823 F.2d 1073, 

, cert. dismissed, — 

.. 1101, 99 L.Ed.2d 229 

there was a Rule 11 

has been subject to ap- 
this circuit under two 

Some opinions have 

. of discretion standard. 

ekfen Constr. & Instal- 
1 440, 443 (7th Cir.1988); 

838 F.2d 212, 217 (7th 

‘entral Ice Cream Co. 

) (7th Cir.1987); Ordow- 

6 F.2d 1569, 1574 (7th 

rp Investment Corp. v. 

od 1101, 1103 (7th Cir. 

; in this circuit have em- 

standard of review in 

or a party or attorney 

See, e.g., Fred A. Smith 

lidin, 845 F.2d 750, 751 

own, 830 F.2d at 1429 

d Service, 823 F.2d at 

Altru Nurses Registry, 

(7th Cir.1987) (applies de 

ithout discussion). In 

er, it does not matter 

‘ review we employ: we 

e 11 was violated under 

Magnus Electronics, Inc. 

f Ind., 871 F.2d 626, 630 

otler & Co., 870 F.2d at 

aination is properly made 

o warranted, the district 

e a sanction. Frantz v. 

dowerlifting Fed'n, 836 

1103. Thus, they urge that 

ndings regarding sanctions 

erence and be rejected only if 

has abused its discretion.” 

at 443. 

F.2d 1063, 1065 (7th Cir.1987). The district 

judge has, however, a wide range of sanc- 

tions that he or she may impose. Available 

sanctions range from such judicial actions 

as an off-the-record reprimand to repri- 

mand on the record, to monetary assess- 

ments or penalties. Cf. Frantz, 836 F.2d 

at 1066. The type of sanction devised by 

the court should, of course, relate to the 

severity of the violation. In any event, a 

finding that a sanction is warranted does 

not necessarily require a monetary assess- 

ment. Such a finding requires only that 

some remedial action be taken by the court. 

[3] Once a violation is found and sanc- 

tions are warranted, whether the type of 

sanctions imposed (and, if a monetary as- 

sessment is imposed, the amount imposed) 

is proper is subject to the abuse of discre- 

tion standard of review. Tekfen, 847 F.2d 

at 433 n. 3; Frantz, 836 F.2d at 1066; 

Brown, 830 F.2d at 1434 and cases cited 

therein. To facilitate an appropriate re- 

view, the district court should impose sanc- 

tions with some precision. 

Rule 11 does not require lawyers to con- 

duct “exhaustive research.” Szabo Food 

Service, 823 F.2d at 1081. It does, how- 

ever, require them to make a reasonable 

inquiry into the facts. Mere good faith 1s 

not enough. Ordower, 826 F.2d at 1574. 

It is clear that Gavin did not make a rea- 

sonable inquiry here. Thus, we affirm 

Judge Getzendanner’s ruling that the deni- 

al of the allegation that Martin was an 

employee of IBA violated Rule 11. 

In this case, moreover, we do not think 

that the amount of the sanction imposed, 

$3,000, constituted an abuse of discretion. 

As this circuit has pointed out in other 

cases, Rule 11 permits the imposition of 

monetary penalties (apart from those for 

expenses and attorneys’ fees) for frivolous 

conduct. Cf. Cheek v. Doe, 828 F.2d 395, 

397-98 (7th Cir.), cert. denied, — U.S. 

——, 108 S.Ct. 349, 98 L.Ed.2d 374 (1987). 

We do not feel that the district judge 

abused her discretion in this case. The 

amount of the penalty imposed by the dis- 

trict court appears roughly commensurate 

5. See supra note 1. 

INSURANCE BEN. ADMINISTRATORS, INC. v. MARTIN 1359 

Cite as 871 F.2d 1354 (7th Cir. 1989) 

with the frivolous nature of Gavin's denial, 

and with the burden imposed on IBA in 

proving the employee issue at trial. Or- 

dower, 826 F.2d at 1576 (collecting cases); 

Cheek, 828 F.2d at 397. 

III. IBA’s Supplemental Request 

for Sanctions 

[4] We now turn to IBA’s second re- 

quest for sanctions. The court granted 

this supplemental motion for sanctions and 

assessed Gavin over $31,000. Gavin ar- 

gues both that the sanction was unwarrant- 

ed and that it was excessive and unduly 

harsh. 

Thus, we must first address whether 

Gavin's conduct was in fact sanctionable. 

We find that Judge Getzendanner failed 

adequately to specify the authority or au- 

thorities under which she imposed this 

sanction upon Gavin. Because of the con- 

fusion as to which conduct was being sanc- 

tioned under which statute or rule, it is not 

entirely clear to us that all of Gavin's con- 

duct deemed improper was sanctionable. 

Hence, we remand this matter for redeter- 

mination by the district court of whether 

Gavin's conduct violated any statutes or 

rules regarding attorney conduct, and if so, 

a specification of which statutes or rules. 

The reason why the record in this case is 

confusing is this: IBA sought sanctions 

under Rules 11, 26(g) and 37 of the Federal 

Rules of Civil Procedure’ as well as 28 

U.S.C. § 1927 and common law “bad 

faith.” ® Judge Getzendanner’s order im- 

posing sanctions, however, stated that IBA 

requested “an award of fees against John 

W. Gavin under both Rule 11 and Rule 37 

of the F.R.Civ.P.” Following a discussion 

of her analysis of the various allegations of 

sanctionable conduct, Judge Getzendanner 

concluded: 

The court has determined that a substan- 

tial sanction must be imposed on Mr. 

Gavin. The court noted after the trial 

that Mr. Gavin's performance was inade- 

quate. Most of the problems stemmed 

from his unrealistic view of the facts and 

6. See infra note 8. 

 



     
ZRIES 

Scott Brainerd talked tq the 
clerk who then spoke to the 
Inder the impression that tp, 
had asked for a letter, tp, 

‘ote to the district judge ang 
| presented the letter to him, 
idge, however, stated that pe 
y upon a letter obtained ex 
erred the motion to the mag. 

magistrate realized that the 
had not himself requesteq 
magistrate became irritateq 

scott Brainerd had misrepre. 
‘uation to obtain the letter. 
‘e wrote in his subsequent 
less the district judge hag 
juested the letter, the magis. 

>ver have written this hasty 

itters worse, the magistrate 

nus was not cooperating ip 
cording to the magistrate, 
tedly challenged his orders 
us motion to reconsider, re. 

a witness available for depo. 
> magistrate so ordered, re. 
nation that the magistrate 
ready been provided, ang 
atters involving personality 
ie issues of the case. The 
d enough. He sanctioned 
[, the firm, and the client 
Rules of Civil Procedure 11 
ir actions during discovery 
a frivolous motion to recon- 
very order. 

ial incident needs to be add- 

. as it bears on some of what 

believed to be the Brain- 

ous arguments. Andrew 

2d that Masco’s counsel dis- 

a public elevator following 

z. Andrew Brainerd moved 

1 evidentiary hearing on the 

statements made,” but the 

ied the motion because he 

ate. Unless specifically noted, 
2 to the second magistrate when 
magistrate’s” statements or ac- 

inion. 

MAGNUS ELECTRONICS v. MASCO CORP. OF INDIANA 629 
Cite as 871 F.2d 626 (7th Cir.(1989) 

pelieved that a hearing would be a misuse 
of judicial resources and a waste of time. 
Despite the magistrate’s ruling, the inci- 

dent remained on Andrew Brainerd’s mind, 
became one of the issues in the motion to 
reconsider, and resurfaced again in this 
appeal. 

On May 29, 1986, the Brainerds voluntar- 

ily withdrew as counsel for Magnus; Mag- 

nus’s new counsel eventually settled the 

case. Under the terms of the settlement, 
Magnus dismissed the suit and the defen- 

dants waived the $2,762.12 in sanctions as- 
sessed against Magnus. 

The Brainerds objected in the district 

court to the magistrate’s sanctions. The 
district judge adopted the magistrate’s rec- 
ommendation of $4,031.13 in sanctions and 
added some sanctions of his own. 118 F.R. 

D. 443. The district judge awarded Masco 
$2,600 in attorneys’ fees for defending the 

motions brought in the district court and 

added an extra $1,000 to Masco’s request in 

order to penalize the Brainerds. Scott 

Brainerd and his firm appeal the district 

court's award of attorneys’ fees; Magnus 
takes no part in this appeal. 

II. ANALYSIS 

The district judge adopted the magis- 

trate’s recommendation to sanction Mag- 

nus’s counsel pursuant to both Rule 11 and 

Rule 37 and added his own sanctions under 

Rule 11. Because the bulk of the sanctions 

come under Rule 11, we will begin by ana- 
lyzing the claims under Rule 11 and discuss 
Rule 37 when it becomes pertinent. 

[1] Under Rule 112 the district judge 
must determine, based on the objective 
record, whether a sanctioned party took a 
reasonable position under the circumstanc- 

3. Specifically, Rule 11 states in part: 
The signature of an attorney or party consti- 
tutes a certificate by the signer that the signer 
has read the pleading, motion, or other paper; 
that to the best of the signer’s knowledge, 
information, and belief formed after reason- 
able inquiry it is well grounded in fact and is 
warranted by existing law or a good faith 
argument for the extension, modification, or 
reversal of existing law, and that it is not 
interposed for any improper purpose, such as 
to harass or to cause unnecessary delay or 

es. Service Ideas, Inc. v. Traex Corp., 846 
F.2d 1118, 1126 (7th Cir.1988). A position 
is unreasonable if it is frivolous or improp- 
er. Id. An attorney takes a frivolous posi- 
tion if he fails to make a reasonable inquiry 
into facts (which later prove false) or takes 
a position unwarranted by existing law or a 
good faith argument for its modification. 
See Flip Side Productions, Inc. v. Jam 
Productions, Ltd., 843 F.2d 1024, 1036 (7th 
Cir.), cert. denied, — U.S. —, 109 S.Ct. 
261, 102 L.Ed.2d 249 (1988). An attorney 
takes an improper stance if he files a paper 
for any inappropriate purpose, including a 
desire to delay the suit, harass the other 
party, or increase the costs of litigation. 
Id. Once the court has determined the 
reasonableness of the sanctioned party’s 
position, it then must impose an “appropri- 
ate” sanction. See Brown v. Federation 
of State Medical Bds., 830 F.2d 1429, 1434 
(7th Cir.1987). 

A. The Standard of Review 

We first must examine what standard of 
review to apply to a district judge’s deci- 
sion to impose sanctions under Rule 11. 
We have previously stated that in deter- 
mining whether the sanctioned attorney vi- 
olated Rule 11 we will review questions of 
fact using a clearly erroneous standard but 
will examine questions of law de novo. 
Beeman v. Fiester, 852 F.2d 206, 209 (7th 
Cir.1988); see, e.g., S.A. Auto Lube, Inc. v. 
Jiffy Lube Int'l, Inc., 842 F.2d 946, 948 
(7th Cir.1988); Brown, 830 F.2d at 1434. 
Once we have examined the issue of wheth- 
er the attorney violated Rule 11, we will 
then review the appropriateness of the 
sanction under an abuse of discretion stan- 
dard. See Brown, 830 F.2d at 1434. 

needless increase in the cost of litigation. . .. 
If a pleading, motion, or other paper is signed 
in violation of this rule, the court, upon mo- 
tion or upon its own initiative, shall impose 
upon the person who signed it, a represented 
party, or both, an appropriate sanction, which 
may include an order to pay to the other 
party or parties the amount of the reasonable 
expenses incurred because of the filing of the 
pleading, motion, or other paper, including a 
reasonable attorney's fee. 

Fed.R.Civ.P. 11. 

 



630 

This circuit and other circuits, however, 

have recently questioned whether it is ap- 

propriate to review de novo a district 

judge’s decision regarding the frivolity of a 

particular position taken by the sanctioned 

party. Although this court's precedents 

presently remain unsettled, we are not pre- 

cluded from deciding the issues set before 

us in the present case. See Mars Steel 

Corp. v. Continental Illinois Nat’l Bank 

and Trust Co., No. 88-1554 (7th Cir. Feb. 

16, 1989) (order setting en banc hearing on 

issue of applicable standard of review in 

sanctions cases). Applying any of the vari- 

ations of the standard of review currently 

deemed appropriate in this circuit, we 

would reach the same decision regarding 

the district court’s sanctions of the Brain- 

erds. 

B. The Magistrate's Sanctions 

1. Discovery Related Matters 

Having jurisdiction to review the district 

judge’s decision pursuant to 28 U.S.C. 

§ 1291, we will discuss the sanctions origi- 

nally recommended by the magistrate sepa- 

rate from those added by the district judge. 

The magistrate recommended that the dis- 

trict judge sanction Magnus’s counsel for 

two veins of activity. First, the magistrate 

ordered sanctions against both Scott Brain- 

erd and his firm for moving to reconsider 

the magistrate’s discovery order and fail- 

ing to cooperate in the related discovery; 

and second, the magistrate suggested sanc- 

tions against Scott Brainerd for communi 

cating with the magistrate ex parte. 

[2] We find that the motion to reconsid- 

er violated Rule 11. A motion to reconsid- 

er is frivolous if it contains no new evi- 

dence or arguments of law that explain 

why the magistrate should change an origi- 

nal order that was proper when made. Cf. 

Unioil, Inc. v. E.F. Hutton & Co., 809 F.2d 

548, 559 (9th Cir.1986), cert. denied, — 

U.S. —, 108 S.Ct. 83, 98 L.Ed.2d 45 (1987) 

(motion to reconsider with no new evidence 

is frivolous if district judge previously held 

that old evidence was insufficient); Brown 

v. National Bd. of Medical Examiners, 

800 F.2d 168, 173 (7th Cir.1986) (motion to 

reconsider sanctions that merely reproduc- 

871 FEDERAL REPORTER, 2d SERIES 

es the original motion to produce violateg 

Rule 11). The magistrate described with 

commendable detail a number of incidentg 

that indicate that his orders were we] 

grounded in law and fact but that the 

Brainerds’ motion to reconsider was not, 

We need not discuss each of the Brainerd’ 

claims in detail; we will, however, describe 

an incident that illustrates our decision, 

The Brainerds refused to produce Rosa. 

lind and Frank Reinhard in Chicago for 

their depositions and moved to reconsider 

the magistrate’s order that the Reinhards 

should be produced. The law supported 

the magistrate’s order that the Brainerds 

produce the Reinhards as corporate offi- 

cers in Chicago, Magnus’s principal place 

of business. See Salter v. Upjohn Co., 593 

F.2d 649, 651 (5th Cir.1979); Zuckert ov, 

Berkliff Corp., 96 F.R.D. 161, 162 (N.D.IIl. 

1982) (“As a general rule, the deposition of 

a corporation by its agents and officers 

should be taken at its principal place of 

business.”): 8 C. Wright & A. Miller, Fed- 

eral Practice & Procedure § 2112, at 410 

(1970); 4 J. Moore, J. Lucas & G. Grotheer, 

Jr., Moore's Federal Practice 11 26.70[1.-4) 

(2d ed. 1987). The facts indicated that the 

Reinhards were officers of Magnus: In 

Magnus’s 1984 and 1986 tax returns both 

Frank and Rosalind Reinhard were shown 

as officers of Magnus devoting 100% of 

their time to the corporation, and in Mag- 

nus’s response to Masco’s interrogatories, 

Frank Reinhard was listed as a person with 

knowledge of the facts of the complaint. 

Furthermore the Brainerds provided no evi- 

dence that the Reinhards had resigned 

from their previous positions. Despite 

these uncontroverted facts, the Brainerds 

asserted that the Reinhards were not offi- 

cers at the time at issue. The law estab- 

lished that Magnus’s officers should be de- 

posed in Chicago; the unrefuted facts 

showed that Frank and Rosalind Reinhard 

were officers: and yet, the Brainerds re 

fused to produce the Reinhards. The mag: 

istrate properly ordered the Brainerds to 

produce the Reinhards in Chicago. The 

Brainerds’ motion to reconsider was friv- 

olous because it reiterated their previous   

  

 



   
‘RIES 

'se, a substantial inference of 
Jose is warranted.” Id. at 

determination 

{ a memorandum addressing 
aestion and filed a motion to 

ad the initial opinion. The 
second memorandum opinion 
the Rule 11 issue and denied 
alter or amend.® The court 
& M had fallen far short of 

standard of Rule 11: 

of the essential objective 
s that: 

& Mason have and had no 

ment for their ‘consignment’ 

ver arguments they did raise 

roranda were both ground- 
leading. 

never really attempted to 

the lien hearing schedule, 

referring to assume they 

that process and then re- 

tter on appeal. 

district court noted that, in 

morandum, “Levit & Mason 

have a colorable argument 

actions by the debtors (as 

0 be treated—as to the sell- 

ot the buyers’ creditors—as 

rather than sale-or-return 

Id. The court stated: 

in the UCC or the case law 

position[;] ... [s]econd, the 

a] they now advance was 

ed at in their briefs before 

" Id. The district court 

“Levit & Mason have failed 

the requirement that their 

imittee’s behalf was well 

t and warranted by existing 

ith argument for the exten- 

on, or reversal of existing 

3. Accordingly, the district 
L & M to reimburse the 

ely at 105 F.R.D. 493 (N.D.IIL     

  
  
  

  

  
  

IN RE RONCO, INC. 217 
Cite as 838 F.2d 212 (7th Cir. 1988) 

Banks for attorneys’ fees attributable to 

the issues decided by the initial opinion. 

Id. 

II 

Discussion 

A. Rule 11 Sanctions 

[1,2] Rule 11 sanctions are properly im- 

posed when a “pleading, motion, or other 

paper” is not “well grounded in fact [or] 

warranted by existing law or a good faith 

argument for the extension, modification, 

or reversal of existing law, [or] ... is . 

interposed for any improper purpose, such 

as to harass or to cause unnecessary delay 

or needless increase in the cost of litiga- 

tion.” Fed.R.Civ.P. 11. “The test under 
Rule 11 is objective: litigation must be 
grounded in an objectively reasonable view 
of the facts and the law, and, if it is not, 
the lawyer or party proceeding recklessly 

must foot the bill.” Colan v. Cutler-Ham- 

mer, Inc., 812 F.2d 357, 360 n. 2 (7th Cir.) 

cert. denied, — U.S. —, 108 S.Ct. 79, 98 

L.Ed.2d 42 (1987). The standard for impos- 

ing sanctions is one of reasonableness un- 

der the circumstances. Brown v. National 
Bd. of Medical Examiners, 800 F.2d 168, 

171 (7th Cir.1986); see Thornton v. Wahl, 

787 F.2d 1151, 1154 (7th Cir.), cert. denied, 

— U.S. —, 107 S.Ct. 181, 93 L.Ed.2d 116 

(1986); Indianapolis Colts v. Mayor of 

Baltimore, 775 F.2d 177, 181 (7th Cir.1985). 

Rule 11 requires an attorney to make a 

reasonable inquiry into the factual and le- 

gal basis for the claims asserted. Brown, 

800 F.2d at 171-72. The failure of an 

investigation of the facts underlying a 

claim or the applicable law justifies the 

imposition of Rule 11 sanctions. 

6. See supra note 1. 

7. Of course, once the district court finds that 
conduct forbidden by Rule 11 has occurred, 
some sanctions must be imposed. See Szabo 
Food Serv., Inc. v. Canteen Corp., 823 F.2d 1073, 
1082 (7th Cir.1987); Shrock v. Altru Nurses Reg- 

istry, 810 F.2d 658, 661 (7th Cir.1987); see also 

Brown v. Federation of State Medical Bds., 830 
F.2d 1429, 1434 n. 3 (7th Cir.1987). 

B. Standard of Review 

As this court has recently noted in Or- 

dower v. Feldman, 826 F.2d 1569 (7th Cir. 

1987): 

We apply two different standards of 

review to a district court’s award of sane- 

tions. We may reverse the district 

court’s resolution of factual issues un- 

derlying the award only if its findings 

are clearly erroneous. Whether the deci- 

sion to award sanctions was appropriate 

under the factual background of the 

case, however, is subject to review for 

abuse of discretion. 

Id. at 1574 (citation omitted).” This court 

has also stated: ‘“The substantial familiari- 

ty of the trial court with the proceedings 

renders its decision to impose sanctions 

reversible only for an abuse of discretion.” 

Frazier v. Cast, 771 F.2d 259, 262-63 (7th 

Cir.1985); see District No. 8, Int'l Ass'n of 

Machinists & Aerospace Workers v. Clear- 

ing, 807 F.2d 618, 621 (7th Cir.1986); 

Brown, 800 F.2d at 169.8 If the district 

judge makes an error of law in assessing 

the legal merits of the party's case, that 

error may, of course, by itself, constitute 

an abuse of discretion. 

[3] Review under the abuse of discre- 

tion standard does not mean no appellate 

review. Rule 11 sanctions have significant 

impact beyond the merits of the individual 

case. Concerns for the effect on both an 

attorney’s reputation and for the vigor and 

creativity of advocacy by other members of 

the bar necessarily require that we exercise 

less than total deference to the district 

court in its decision to impose Rule 11 

sanctions. As we have stated: “Despite 

the increased license to impose sanctions, 

judges should always seriously reflect 

upon the nuances of the particular case, 

and the implications the case has on the 

8. While the bankruptcy court was sitting as an 
appellate tribunal, it derived its authority from 
an emergency transition order which permitted 
the district court to undertake de novo review. 
Therefore, we need not address whether under 
the new Bankruptcy Act, where the district 
court's appellate review powers are not as 
broad, similar deference to the district court's 
rulings on sanctions would be appropriate.



   

  

    
   
   
     

      
   

    

SRIES 

dependent contractors Perly noted that the a 
S was Mater, 
ry as MES, 
ary duty y,, 

loyment staty 
ail fraud theo 
ach of fiduci 
! that status. 

the plaintiff's pleag: 
‘clear Rule 11 Dens - 
ted that: 
1t erroneous] 
‘tual relationship }, 
movants and the pl 
facts surely were in 
lon before suit was 

i obviously were not 
is filed, and no other ¢ 
ort of the allegations 
offered by the Plaintiff there is a clear Rule 1 1€ movants shal] be award. 

curred in connection wit}, he facts concerning the ye. ’één movants and MESA 
nd briefing of the Rule 13 or the defense of the law. 
2 awarded.” 
d the defendants $1,500 in 
the preparation of their 

etweey, 
aintiff 

plain. 

filed. 

read 

Xpla- 
n the 

1S court to overturn the 
nection and overlook the 
itements contained in its 
2: (1) at least one of the 
‘6, was in fact a MESA 
ved fiduciary duties to 

ith argument for the exten. 
» Or reversal of existing law, 
nterposed for any improper 
> harass or to cause unnec- 
zedless increase in the cost 
pleading, motion, or other 

1, it shall be stricken unless 
rly after the omission is 
lion to the pleader or moy- 
. motion, or other paper is 
1 of this rule, the Court, 
on its own initiative, shall 
arson who signed it, a rep- 
both, an appropriate sanc- 
iclude an order to pay to 
parties the amount of the 
s incurred because of the 
8 motion, or other paper, 
able attorneys’ fee.” 

   

   

violati lolation » the 

y alleges a spe. 

  

MEDICAL EMERGENCY SERVICE ASSOCIATES v. FOULKE 399 
Cite as 844 F.2d 391 (7th Cir. 1988) 

(ESA (contrary to the other three defend- 

nts, Dr. Foulke’s contract specified that 
ho was an “employee” of MESA), (2) the 

remainder of the complaint was well 
grounded in fact, and (3) upon learning of 

«he mistake, MESA immediately contacted 
‘he defendants’ counsel in an attempt to 
resolve the problem. (The record reveals 
hat defense counsel decided to file a Rule 

11 motion rather than attempt a private 

resolution of the problem). MESA notes 
that the pleading error resulted from coun- 

cel's reviewing only Dr. Foulke’s employ- 

ment contract before alleging each defend- 
ant’s employment status (or lack thereof). 

In Brown v. Federation of State Medi- 

cal Boards, 830 F.2d 1429, 1434 (7th Cir. 
1987), we explained that our review of a 

trial judge’s order granting or denying 
Rule 11 sanctions involves several discrete 
inquiries: 

“First, we must consider whether the 

district court correctly imposed sanc- 

tions. We review findings of fact that 

the district court used to determine 
whether Rule 11 was violated under the 

clearly erroneous standard. See, e.g. 

Kurkowski v. Volcker, 819 F.2d 201, 203 

n. 8 (8th Cir.1987); Zuniga v. United 

Can Co., 812 F.2d 443, 452 (9th Cir.1987); 

Robinson [v. National Cash Register 

Co], 808 F.2d [1119] at 1126 [5th Cir. 
1987); Golden Eagle [Distributing 

Corp. v. Burroughs Corp.], 801 F.2d at 
[1531] 1538 [9th Cir.1986]. However, we 
review de novo the district court's legal 
conclusion that conduct in a particular 
case constituted a violation of Rule 11. 
See, e.g., Szabo Food Service, Inc., [v. 
Canteen Corp.], 823 F.2d 1073 [7th Cir. 
1987] (applying de novo standard without 
discussion); Kurkowski, 819 F.2d at 203 
n. 8; Zuniga, 812 F.2d at 452; Robinson, 
808 F.2d at 1126; Dreis & Krump Mfy. 
Co. v. International Ass'n of Machin- 
ists, 802 F.2d 247 (7th Cir.1986) (applying 
de novo standard without discussion); 
Golden Eagle, 801 F.2d at 1538. Cr 
Donaldson v. Clark, 819 F.2d 1551, 1556 
(11th Cir.1987) (en banc) (“Whether (1) 
factual or (2) dilatory or bad faith rea- 
sons exist to impose Rule 11 sanctions is 
for the district court to decide subject to 

  

review for abuse of discretion ... [A] 
decision whether a pleading or motion is 

legally sufficient involves a question of 
law subject to de novo review by this 
court.”) (footnote omitted) (citing West- 

moreland v. CBS, Inc., 770 F.2d 1168, 
1174-75 (D.C.Cir.1985)). 

Second, we must consider whether the 

sanction the district court chose to im- 

pose was appropriate. ‘The amount or 

type of sanction imposed is within the 
district court's discretion.” Thomas [v. 
Capital Sec. Services, Inc.] 812 F.2d 

[984] at 989 [5th Cir.1987]. Therefore, 
we will reverse a district court’s choice 
of an amount or a type of sanction only if 
we find an abuse of discretion. See 
Cheek v. Doe, 828 F.2d 395, 397 (7th 
Cir.1987) (per curiam); accord Donald- 
son, 819 F.2d at 1557; Zuniga, 812 F.2d 
at 452; Robinson, 808 F.2d at 1126; 

Golden Eagle, 801 F.2d at 1538.” 

Applying these guidelines, initially we note 
that there is no dispute as to the soundness 
of the district court’s factual finding that 
counsel for MESA failed to review each of 
its contracts with the defendants prior to 
filing its complaint, a review which would 
obviously have led to their discovery of the 
defendant’s true employment status. 
Thus, under Brown, we proceed to a de 
novo review of the question of whether the 
trial court properly found that this conduct 
constituted a Rule 11 violation. But see 
Matter of Central Ice Cream Co., 836 F.2d 
1068, 1072 (7th Cir.1987) (“[wle apply a 
deferential standard on review of the ques- 
tion whether the filing of a paper violated 
Rule 11”) (citing R.K. Harp Investment 

Corp. v. McQuade, 825 F.2d 1101, 1103 (7th 

Cir.1987)). 
~ 

[2] As we explained in Szabo Food Ser- 
vice, Inc. v. Canteen Corp., 823 F.2d 1073, 
1080 (7th Cir.), cert. dismissed — U.S. 
—, 108 S.Ct. 1101, 99 L.Ed.2d 229 (1988), 
Rule 11 contains several strands: 

“There must be ‘reasonable inquiry’ into | 
both fact and law; there must be good 
faith (that is, the paper may not be inter- 
posed ‘to harass’); the legal theory must 

be objectively ‘warranted by existing law 
or a good faith argument’ for the modifi- 

    

{ 

   



400 

4 cation of existing law; and the lawyer 
. must believe that the complaint is ‘well 

| grounded in fact’. The attorney filing 

the complaint or other paper must satisfy 
all four requirements.” 

MESA’s conduct in the instant case calls 

into question the first duty imposed under 

Rule 11: whether or not its attorney made 

a reasonable inquiry into the facts underly- 

ing its complaint. In making this determi- 

nation, a district court should consider: 

“whether the signer of the documents 

had sufficient time for investigation; the 

extent to which the attorney had to rely 

on his or her client for the factual foun- 

dation underlying the pleading, motion, 

or other paper; whether the case was 

accepted from another attorney; the 

complexity of the facts and the attor- 

ney’s ability to do a sufficient pre-filing 

investigation; and whether discovery 

would have been beneficial to the devel 

opment of the underlying facts.” 

Brown, 830 F.2d at 1435. Our review is 

based on an objective standard as to wheth- 
er, in light of these factors, the sanctioned 
party’s conduct was reasonable under the 
circumstances. Id. Considering the 
factors enumerated above, we note that: 
(1) MESA’s attorney plainly had “sufficient 
time for investigation” as a brief review of 
each defendant's contract of employment 
would have revealed the movants’ status as 
independent contractors; (2) Because the 
information about the defendants’ employ- 
ment status was contained on the face of 
their contracts with MESA, MESA’s attor- 
ney was not required to rely on its client 
for this part of the factual foundation un- 
derlying its complaint; (3) The facts under- 
lying the inquiry into the defendants’ em- 
ployment status were not complex and 
were readily available; and (4) Discovery of 
the information would have helped the 
plaintiff to develop and understand the un- 
derlying facts since its fraud claims were 
premised to a large degree on the defend- 
ants’ alleged status as “employees” of 
MESA. 

Based upon our examination of the 
factors set forth in Brown, we agree with 
the district court’s finding that the conduct 
of MESA’s lawyer in failing to investigate 

844 FEDERAL REPORTER, 2d SERIES 

each defendants’ employment status before 
naming them as “employees” in their com- 
plaint can only be described as careless. 
As the court noted, a simple review of each 
defendant's contract with MESA would 
have verified their employment status. Be- 

cause of the importance of that status to 

MESA’s fraud claim, we are convinced that 

“a reasonable inquiry” should have includ- 
ed such a review. Thus, under the objec- 

tive standard of Rule 11, the trial judge 
properly imposed sanctions upon MESA’s 
attorney. 

[3] MESA also urges this court to over- 
turn the trial court’s order imposing sanc- 
tions in light of defense counsel's failure to 

attempt a private resolution of the problem 

before filing the Rule 11 motion. While we 
do not condone the immediate filing of a 
Rule 11 motion as an automatic response to 
an opponent’s pleading error, we are con- 
vinced that under the circumstances of this 
case, the defendants’ decision to swiftly file 
the motion does not warrant overturning 
the district judge's findings. As the trial 

court properly noted, since the defendants’ 
true employment status was central to the 
plaintiff's fraud theory, the defendants 

were required to expend an unnecessary 

amount of valuable legal research and time 

defending those fraud claims that were 

premised on the defendants’ alleged status 

as “employees.” We agree with the trial 

court’s refusal to prohibit an award of 
sanctions on this basis. 

[4] The final step in our analysis is to 
determine whether the district court's 
award of sanctions in the amount of $1,500 
constitutes an abuse of discretion. Brown, 

830 F.2d at 1434. As we pointed out in 
Brown, Rule 11 is designed not only to 
compensate the wronged party, but also to 

deter frivolous litigation and the abusive 

practices of attorneys. Id. at 1437-38. In 

this case, the district judge specifically 

stated that “the court ... awards $1,500 

which the court estimates is the reasonable 

attorney’s fee for the preparation for the 

Rule 11 motion.” In our view, the amount 

of the sanction imposed by the district 

judge is most reasonable and comports  



   

  

3d SERIES 

  

apparently agitated by th his test booklet, refused the rug fer. ~ 
© sett    Month later an amendeq d pro se by Dr. Brown that a), _ Constitutional deprivation oi ‘or millions of dollars jp da ; '¢ defendants made efforts - 2 laint dismissed, Dy. Browns o, * @ motion to withdray, tet Dr. Brown immediately ret nsel who successfully itp ned ‘resentation one month later ew h 1984, David Neely appeareq me on behalf of Dy. Brow he ntly filed a new complaint, py, Ist two months of his represe u ly sought to correct vier certain jurisdictiong] defects ; nd, to this effect, consenteq “ liscovery pending regq 

3s. 

his period N eely commen 
gotiations with the Wy these discussions Neely Noted bort issued May 12, 1982, which © explain Dr. Brown's 1980 and results, at one point used th, uel N. Brown” rather than Sam. wn. This error led NBME te (s report and rescore the exam , 1984, a letter amending the port was prepared. This letter Samuel N. Brown was in faet 3rown and that other non-syh- "ansposition errors hag been 
the letter was meant to serve a to the May 1982 report, 
this letter represented “the “oke the camel's back Con- 1e letter represented a sudden sition by the defendants ang 

as a danger that necessary 
evidence would be altered or 
filed an emergency Motion to 
umenis and Place Under 
On June 19, 1984, Judge 

rearing on the motion where 
Neely on the basis for his 
defendants were going to 

hical obligations by altering 
ough his responses were 
ars that Neely believed the 

Mpla jpg 

lution of 

  

i 

z 

BROWN v. NATIONAL BD. OF MEDICAL EXAMINERS 171 
Cite as 800 F.2d 168 (7th Cir. 1986) 

May 31, 1984 letter and the destruction of 

he test booklets created this danger. Nee- 
w did not identify what evidence might be 
Jestroyed (it appears at one point that he 

o> concerned with the possible destruc- 
$e of Dr. Brown’s non-existent test book- 
or and, at oral argument before this 
4 he admitted that the motion was 
old of documentary support. The dis- 

erict court found this motion to be ground- 
less and thus violative of Rule 11. Neely 
was given an opportunity to respond within 
ve days and eventually the district court 
ontered an order assessing attorney's fees 
| : 22,538 against Neely. 

in July 1984, Neely retained the law firm 
,¢ Mitchell & Black in order to move for 
consideration of the Rule 11 sanctions. 
A motion for reconsideration was filed ac- 
companied by fifteen exhibits designed to 
jemonstrate that the Neely’s motion had 
merit These exhibits consisted of corre- 

«pondence between Dr. Brown and the test- 

ng organizations that, according to the 
motion, demonstrate the shifting stances 
.aken by the defendants. The chief piece 
of evidence is a letter saying that a repre- 
sentative of Dr. Brown could view “the test 
hooklet” as well as the other information. 
The motion claims that this establishes that 
Dr. Brown’s booklet was destroyed with 
knowledge that it was relevant to Dr. 
Brown's claim and that the organizations 

had changed their position about allowing 
access to the actual test booklet because 
this early letter did not refer to the “mas- 
ter” booklet. Judge Grady found, notwith- 
standing the additional submissions, that 
the motion for reconsideration was also 
groundless and assessed Mitchell & Black 
$250 in attorney’s fees under Rule 11. 
This appeal ensued. 

IL. 

Rule 11 of the Federal Rules of Civil 
Procedure provides: 
Every pleading, motion, and other paper 
of a party represented by an attorney 
shall be signed by at least one attorney 
of record in his individual name, whose 
address shall be stated. A party who is 
not represented by an attorney shall sign 
his pleading, motion, or other paper and 

800 F.2d—7 

state his address. Except when other- 
wise specifically provided by rule or stat- 
ute, pleadings need not be verified or 
accompanied by affidavit. The rule in 
equity that the averments of an answer 
under oath must be overcome by the 
testimony of two witnesses or of one 
witness sustained by corroborating cir- 
cumstances is abolished. The signature 
of an attorney or party constitutes a 
certificate by him that he has read the 
pleading, motion, or other paper; that to 
the best of his knowledge, information, 
and belief formed after reasonable in- 
quiry it is well grounded in fact and is 
warranted by existing law or a good 
faith argument for the extension, modifi- 
cation, or reversal of existing law, and 
that it is not interposed for any improper 
purpose, such as to harass or to cause 
unnecessary delay or needless increase in 
the cost of litigation. If a pleading, mo- 
tion, or other paper is not signed, it shall 
be stricken unless it is signed promptly 
after the omission is called to the atten- 
tion of the pleader or movant. If a 
pleading, motion, or other paper is signed 
in violation of this rule, the court, upon 
motion or upon its own initiative, shall 
impose upon the person who signed it, a 
represented party, or both, an appropri- 
ate sanction, which may include an order 
to pay to the other party or parties the 
amount of the reasonable expenses in- 
curred because of the filing of the plead- 
ing, motion, or other paper, including a 
reasonable attorney's fee. 

[1] The rule, as now constituted, repre- 
sents a significant relaxation from its pre- 
1983 version with regard to the standard 
for deciding whether sanctions are appro- 
priate. The standard for imposing sanc- 
tions under Rule 11 is no longer a determi- 
nation of subjective bad faith but is now an 
objective question of “reasonableness un- 
der the circumstances.” Fed.R.Civ.P. 11 
advisory committee note; accord Thornton 
v. Wahl, 787 F.2d 1151, 1154 (7th Cir.1986); 
Indianapolis Colts v. Mayor of Baltimore, 
175 F.2d 177, 181 (7th Cir.1985); Rodgers v. 
Lincoln Towing Service, Inc, 7171 F.2d 
194, 205 (7th Cir.1985); In re TCI Limited, 
769 F.2d 441, 445-46 (7th Cir.1985). Under 

 



172 

Rule 11 an attorney risks sanctions for 
failing to make a reasonable inquiry into 
both the factual and legal basis for the 
claim he asserts. See In re TCI, 769 F.2d 
at 446; see also FDIC v. Elefant, 790 F.2d 
661, 667 (7th Cir.1986). 

[2] Unlike much of our past precedent, 
the issue here is completely a question of 
factual investigation. The district court 
found that Neely brought a motion that 
carries the insinuation that the defendants 
were engaged in improper conduct without 
a supporting factual basis. After review- 
ing the record we conclude that this deter- 
mination was not an abuse of discretion. 
Hilgeford v. Peoples Bank, 176 F.2d 176, 
179 (7th Cir.1985); see also Rodgers, 171 
F.2d at 205. But see McCandless v. Great 
Atlantic and Pacific Tea Co. 697 F.2d 
198, 201 (7th Cir.1983). 

At oral argument Neely conceded that 
his motion lacked evidentiary support as 
submitted. Additionally, it lacked any indi- 
cation of the rationale for the motion or the 
type of document that he believed needed 
to be placed under seal. At the emergency 
hearing Neely was given full opportunity 
to explain the basis for his motion. His 
apparent logic was that the destruction of 
Dr. Brown's test booklet was improper and, 
when combined with the shift in defend- 
ants’ position evidenced by the May 31, 
1984 letter correcting the May 12, 1982 
report, established a reasonable fear that 
the remaining documents in Dr. Brown's 
test file would be altered or destroyed. 

The problem is that the premises do not 
support the conclusion. A careful review 
of the May 1984 letter makes it clear that 
the changes in the earlier report were tech- 
nical and non-substantive. This letter con- 
tains absolutely no basis for the conclusion 
that the defendant organizations were 
somehow changing their position, let alone 
about to alter evidence. The letter may be 
read as undermining the test evaluation 
methodology but it is not capable of being 
construed, as Neely attempted, as impugn- 
ing the integrity of the defendants. 

Similarly, the record is replete with refer- 
ences to the destruction of the individual 
test booklets in the ordinary course of busi- 

800 FEDERAL REPORTER, 2d SERIES 

ness. Neely’s motion reveals that he wag 
aware of this fact. No attempt was made, 
nor evidently could one be made, to estab- 
lish that this practice was generally not 
followed or was improper. The fact that 
an enterprise did destroy what is its accept- 
ed practice to destroy provides no support 
for the conclusion that the enterprise in- 
tends to destroy or alter other critical evi- 
dence that is not routinely discarded. The 
motion for reconsideration filed by Mitchell 
& Black seems to contend that pre-1983 
references to “the test booklet” by the 
defendants establish that the defendants 
acknowledged the need for Dr. Brown's 
test booklet to be reviewed, and then, be- 
fore it was produced, they destroyed it. 
Not only is this a tortured reading of the 
past correspondence, but it is also largely 
irrelevant to the motion. Even if the de- 
struction of the test booklet was improper 
it does not support an emergency motion to 
produce and seal unspecified documents be- 
cause this would prove merely that the 
defendants’ adherence to their practice of 
discarding the booklets was, under the cir- 
cumstances, erroneous; it does not logical- 
ly lead to the conclusion that wholesale 
destruction or alteration of other doe- 
uments was to follow. 

In filing his motion, Neely failed ade- 
quately to assess the nature of the record 
and how it related to and supported the 
motion. Notwithstanding his sincere be- 
liefs in the merits of his client's position, 
Neely had a duty to “ascertain the facts 
and review the law to determine whether 
the facts fit within a recognized entitle- 
ment to relief.” In re TCI 769 F.2d at 
446. In the present case Neely filed a 
motion accusing the opposition of serious 
misconduct based on little more than sup- 
position, and sanctions were thus appropri- 
ate. It should be noted that the district 
courts should be sensitive before assessing 
Rule 11 sanctions against an attorney, such 
as Neely, who is placed in the precarious 

role of replacing an earlier retained counsel 
in the middle of a case. These concerns 

are alleviated in the present case because 

the sanctions arose out of a motion brought 
initially by Neely, because the motion was 

based on a document, the May 31, 1984