
USCA1 Opinion

	




          September 4, 1992     [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 92-1168                                 C.D. DI GIAMBATTISA,                                Plaintiff, Appellant,                                          v.                             SHEILA E. MCGOVERN, ET AL.,                                Defendants, Appellees.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. A. David Mazzone, U.S. District Judge]                                             ___________________                                 ___________________                                        Before                                 Breyer, Chief Judge,                                         ___________                           Campbell, Senior Circuit Judge,                                     ____________________                               and Cyr, Circuit Judge.                                        _____________                                 ___________________               C.D. Di Giambattisa on brief pro se.               ___________________               Scott   Harshbarger,  Attorney   General  and   Michelle  A.               ___________________                             ____________          Kaczynski, Assistant Attorney General, on brief for appellees.          _________                                  __________________                                 __________________                  Per  Curiam.   This appeal  has its  origin in  a matter                 ___________            litigated several years ago in the Middlesex Probate Court in            Massachusetts.  The appellant,  C.D. Di Giambattista, was the            trustee of a  revocable trust established  under the laws  of            Massachusetts.  The amended  complaint contains only a sparse            description of  the state  court proceedings, but  it appears            that   the   beneficiaries  of   the   trust,   all  Mr.   Di            Giambattista's siblings, sued in  the Probate Court to remove            Mr.  Di Giambattista  as  trustee  and  as  executor  of  the            settlor's estate.  The proceedings were rancorous, and at one            time  or another involved  four judges of  the Probate Court:            appellees  McGovern,   Sullivan,  Leahy  and  Highgas.    The            beneficiaries  were represented  by Richard  Liebman, who  is            also an appellee here.                 In 1986 the Probate Court removed Mr. Di Giambattista as            trustee  and  executor.    The  Massachusetts  Appeals  Court            affirmed  the judgment  in  June  1991.    By  then,  Mr.  Di            Giambattista  had already  filed this  lawsuit in  the United            States District Court for the District  of Massachusetts.  He            named  Judges  McGovern,  Sullivan, Leahy  and  Highgas,  and            attorney Liebman,  as defendants,  and claimed that  they had            violated the Racketeer  Influenced and Corrupt  Organizations            Act  (RICO),  18 U.S.C.    1961  et  seq., by  conducting the            affairs of the Middlesex Probate Court through a  "pattern of                                         -2-            racketeering  activity."    At  length,  the  district  court            dismissed the complaint.  This appeal followed.  We affirm.                 The Judicial Defendants                 _______________________                 The district court  dismissed the claims  against Judges            McGovern, Sullivan,  Leahy and  Highgas because each  enjoyed            absolute  judicial immunity for the acts he or she is alleged            to  have  committed.    The  doctrine  of  judicial  immunity            protects  judges from  "civil  liability for  any normal  and            routine judicial act."  Cok v. Cosentino, 876  F.2d 1, 2 (1st                                    ___    _________            Cir. 1989) (per curiam)  (citing Stump v. Sparkman,  435 U.S.                                             _____    ________            349, 356-57  (1978)).   "Only judicial actions  taken in  the            clear absence  of all  jurisdiction will  deprive a  judge of            absolute immunity."  Id. (citing Stump, 435 U.S. at 357).                                 ___         _____                 Mr. Di Giambattista's principal  contention on appeal is            that Congress,  in enacting  the RICO statute,  abrogated the            traditional  rule  of judicial  immunity.    He supports  his            argument by  citing  cases in  which  courts have  said  that            judges  may be  held  criminally liable  for violating  RICO.            See,  e.g., United States v. Forsythe, 560 F.2d 1127 (3d Cir.            __________  _____________    ________            1977); United  States v.  Vignola, 464 F.Supp.  1091 (E.D.Pa.                   ______________     _______            1979).                 Federal courts "have  proceeded on  the assumption  that            common-law  principles of  legislative and  judicial immunity            were  incorporated into  our  judicial system  and that  they            should not be abrogated absent clear legislative intent to do                                         -3-            so."  Pulliam v. Allen, 466 U.S. 522, 529 (1984).   Under the                  _______    _____            common law, judges are  generally immune from civil liability            for judicial acts, subject to the conditions described above,            but  they do not enjoy immunity from criminal liability.  See                                                                      ___            O'Shea v. Littleton,  414 U.S.  488, 503 (1974).   Thus,  the            ______    _________            fact  that  judges  have  been  held  criminally  liable  for                                                  __________            violating  RICO in no way  suggests that Congress intended to            give  civil RICO plaintiffs  a remedy not  available to those                  _____            who sue judges under the common law.  And, as we see no other            indication  of Congressional  intent,  we decline  to deprive            these  judges of  the immunity  to  which they  are generally            entitled by settled legal principles.                 Mr. Di  Giambattista also contends that  the judges here            should not  be protected  by immunity  because they  acted in            "the clear absence of all jurisdiction."  The "scope of . . .            jurisdiction must be construed broadly where the issue is the            immunity of the judge,"  Stump v. Sparkman, 435 U.S.  at 356,                                     _____    ________            and a  judge will  doff the cloak  of immunity  only when  he            conducts  proceedings over  which he  lacks any  semblance of            subject-matter  jurisdiction.   Thus,  in  a classic  example            offered by the  Supreme Court  120 years ago,  "if a  probate            court,  invested  only  with  authority over  wills  and  the            settlement of estates of  deceased persons, should proceed to            try parties  for [criminal] offenses,  jurisdiction over  the            subject of offenses  being entirely wanting in the court, and                                         -4-            this  being necessarily  known to  its judge,  his commission            would  afford no  protection to  him in  the exercise  of the            usurped  authority."   Bradley v.  Fisher, 80  U.S. 335,  352                                   _______     ______            (1872).   On the other hand,  if a judge in  a criminal court                                                           ________            convicts  a  defendant  of  even  a  non-existent  crime,  he            maintains his immunity, because  "where jurisdiction over the            subject-matter is invested  by law  in the judge,  or in  the            court  which he  holds, the  manner and  extent in  which the            jurisdiction  shall  be  exercised  are  generally   as  much            questions  for  his  determination  as  any  other  questions            involved in the case . . . ."  Id.                                           ___                 None of the  acts identified by Mr.  Di Giambattista was            actionably extra-jurisdictional according  to this  standard.            Massachusetts    probate    courts   have    general   equity            jurisdiction, M.G.L. c. 215   6, and the removal of a trustee            or executor is an exercise of such equity jurisdiction.  See,                                                                     ____            e.g., Gorman v.  Stein, 1 Mass. App.  Ct. 244 (1973).   Thus,            ____  ______     _____            Judge  Sullivan's rulings  during the  trial, whether  or not            correct, fell within his purview as a probate judge, and even            Judge Highgas, though not the trial judge, did not act in the            "clear absence  of all  jurisdiction" by hearing  motions and            issuing orders that  affected the  case, since  "jurisdiction            over the  subject-matter [was] invested  by law . .  . in the            court which he [held]."  Bradley v. Fisher, 80 U.S. at 352.                                      _______    ______                                         -5-                 Nor were the orders  issued by Judge Sullivan  and Judge            Leahy  after the entry  of final judgment  clearly beyond the            judges'  jurisdiction.    Although,  as  Mr.  Di Giambattista            contends,  the taking  of  an  appeal  after entry  of  final            judgment  may "oust"  the trial  court of  jurisdiction under            most circumstances, probate judges retain power to make post-            judgment rulings  in equity  cases because  Massachusetts law            expressly  provides  that an  appeal  of  an probate  court's            equity decision "shall not  suspend or stay proceedings under            such order or decree  pending the appeal."  M.G.L.  c. 215,              23.                  Similarly,   Judge   McGovern's   order  that   Mr.   Di            Giambattista  produce  additional  trial  transcripts  before            proceeding with his appeal was  not clearly beyond the bounds            of  her jurisdiction as fixed by  Massachusetts law.  Probate            appeals are governed by  the Massachusetts Rules of Appellate            Procedure.  M.G.L. c. 215,   10.  Mass. R. App. P. 8(b) gives            probate judges  authority  to  require  appellants  to  order            additional portions of the  transcript in appropriate  cases,            and this means that Judge McGovern, whether she acted rightly            or  wrongly, did  not  act  in  the  "clear  absence  of  all            jurisdiction."                 In sum,  because the amended complaint  failed to allege            any  actionable  conduct  committed outside  the  defendants'            jurisdiction as probate judges, we conclude that the district                                         -6-            court   correctly  dismissed  the  claims  against  appellees            McGovern, Sullivan, Leahy and Highgas.                 Attorney Liebman                 ________________                 Attorney Liebman was not protected by judicial immunity,            and  the  absence of  a discussion  of  the viability  of the            claims against him in the district court's opinion led Mr. Di            Giambattista  to  argue that  "Liebman  gets a  free  ride on            judicial  immunity."   However, notwithstanding  the district            court's failure to justify independently its dismissal of the            RICO  claims  against  Liebman,  we find  it  appropriate  to            affirm.    A  court of  appeals  "can  affirm  on any  ground            presented by the record," Acha v. United States, 910 F.2d 28,                                      ____    _____________            30  (1st Cir.  1990),  and  our  examination of  the  amended            complaint  convinces us  that Mr.  Di Giambattista  failed to            state a  claim against Liebman  upon which relief  could have            been granted.                 In order to  make out  a civil RICO  claim, a  plaintiff            must plead  and prove that the defendant committed, or agreed            to commit, a "pattern  of racketeering activity."   18 U.S.C.               1962(a),  (b), (c)  and (d).   "Racketeering activity"  is            defined  precisely in 18 U.S.C.   1961(1) to mean (A) any act            involving  murder,  kidnaping,   gambling,  arson,   robbery,            bribery, extortion,  dealing in obscene matter  or dealing in            controlled  substances that is a felony  under state law, and            (B) any one of several enumerated federal crimes.  Mr.     Di                                         -7-            Giambattista   says   that   Liebman    committed   predicate            racketeering   acts   of   fraud,   bribery,   extortion  and            obstruction of justice, but the  facts alleged in his amended            complaint fail to bear out these conclusory charges.                 Fraud  -   Mr.  Di  Giambattista  alleged  that  Liebman                 _____            committed  four predicate  acts of  "fraud."   However, while            mail  fraud, 18 U.S.C.    1341, and  wire fraud, 18  U.S.C.              1343,  constitute  "racketeering activity,"  common-law fraud            does not.  Fleet Credit Corp. v. Sion, 893 F.2d 441, 445 (1st                       __________________    ____            Cir.  1990).1    Only  one  of  the  four  fraud  allegations            contained any reference to the mails: it charged that Liebman            had interfered with  the delivery  of the mail  by causing  a                __________            postal  employee  to  intercept  a  summons  sent  by  Mr. Di            Giambattista,  not   that  Liebman  had  used   the  mail  in                                                     ____            furtherance  of a scheme to defraud.  In statutory terms, Mr.            Di  Giambattista has  accused Liebman  not of  mail  fraud in            violation of 18 U.S.C.   1341, but of obstructing the mail in            violation of 18 U.S.C.   1701 -- a federal crime, to be sure,            but not "racketeering activity."                 Bribery - the three  paragraphs in the amended complaint                 _______            alleging bribery  concerned statements  that Liebman  made in                                            ____________________            1.  For  this reason,  Mr. Di  Giambattista failed  to charge            Judge  Sullivan with  committing  a predicate  crime when  he            alleged  that the  judge had  made a  false declaration  to a            federal  district  court  in   response  to  a  civil  rights            complaint that  Mr. Di Giambattista had  brought against him,            but failed  to allege  that the judge  had accomplished  this            "fraud" through use of the wires or mails.                                         -8-            court  to  Judges Leahy  and  McGovern.   None  contained any            suggestion that  Liebman  gave, offered,  or promised  either            judge anything of value.   All therefore failed to  allege an            essential element of the crime of bribery as it is defined by            both state law,  M.G.L. c. 268,    2(a) and 3(a), and federal            law, 18 U.S.C.   201(b).                 Extortion   -  Mr.   Di  Giambattista   identifies  five                 _________            paragraphs  of  his complaint  as  containing  allegations of            extortion, but  without exception these  paragraphs recounted            demands which Liebman  made during litigation.   A threat  to            sue,  even  if  groundless and  made  in  bad  faith, may  be            tortious  under state  law,  but it  is  not extortion  under            federal law, see  I.S. Joseph  Co. v. J.  Lauritzen A/S,  751                         ___  ________________    _________________            F.2d 265 (8th Cir.  1984), and we think the  same distinction            should be made with respect to demands made in the course of,            or threats to continue or intensify, ongoing litigation.                 Obstruction  of  Justice  -  Finally,  the  RICO statute                 ________________________            identifies   five  "obstruction   of  justice"   offenses  as            predicate crimes:  18 U.S.C.   1503  (influencing officers or            jurors   of  United   States  courts);   18  U.S.C.      1510            (obstructing investigations  of federal crimes); 18  U.S.C.              1511  (obstructing enforcement  of state  law with  intent to            facilitate an  illegal gambling  business); 18 U.S.C.    1512            (tampering  with  a witness,  victim  or  informant); and  18            U.S.C.     1513 (retaliating  against  a  witness, victim  or                                         -9-            informant).   None of the several  instances of "obstruction"            alleged by Mr. Di  Giambattista fit the definition of  any of            those crimes.2                 Having  surveyed the amended complaint, and finding that            it  failed to  allege that  Liebman committed,  or agreed  to            commit, even a single predicate racketeering act, we conclude                           ______            that the  district court  properly dismissed the  RICO claims            against Liebman as well.                  Affirmed.                 ________                                            ____________________            2.  Mr. Di Giambattista  also alleged that Liebman  committed            twenty-one predicate  acts of  "conspiracy."  Conspiracy,  in            and  of  itself, is  not  racketeering  activity, although  a            conspiracy to commit a  "pattern of racketeering activity" is            a violation  of the RICO statute.   18 U.S.C.    1962(d).  We            assume  that  Mr.  Di  Giambattista  meant  to   say  in  the            conspiracy allegations that Liebman  had agreed to commit, or            perhaps aided  and abetted the commission  of, predicate acts            undertaken  by others.   But  with few  exceptions, the  acts            "conspired to" were orders issued by the probate judges, none            of   which,  in   our   opinion,   even  remotely   resembles            "racketeering  activity" as  the  RICO statute  defines  that            term.                                         -10-
