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[NOT FOR PUBLICATION]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.
trustee of a

The appellant,

revocable trust established

Massachusetts.

The amended

description of

the state

that

the

C.D. Di Giambattista, was the

beneficiaries

Di Giambattista

settlor's estate.

as

of

complaint contains only a sparse

court proceedings, but
of

Giambattista's siblings, sued in

Mr.

under the laws

trustee

the

trust,

it appears

all

Mr.

Di

the Probate Court to remove

and

as

executor

of

the

The proceedings were rancorous, and at one

time

or another involved

appellees

McGovern,

beneficiaries

four judges of

Sullivan,

Leahy

were represented

the Probate Court:

and

by Richard

Highgas.

The

Liebman, who

is

also an appellee here.

In 1986 the Probate Court removed Mr. Di Giambattista as
trustee

and

affirmed

executor.

the judgment

Giambattista

The
in

had already

Massachusetts

June

1991.

filed this

Judges

McGovern,

attorney Liebman,

Act

(RICO),

18 U.S.C.

then,

and

Di

the United

and claimed that

et

Mr.

Highgas,

Influenced and Corrupt

1961

Court

of Massachusetts.

Sullivan, Leahy

as defendants,

violated the Racketeer

By

lawsuit in

States District Court for the District

named

Appeals

He
and

they had

Organizations

seq., by

conducting the

affairs of the Middlesex Probate Court through a

"pattern of

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racketeering

activity."

dismissed the complaint.

At

length,

the

district

This appeal followed.

The Judicial Defendants

_______________________

court

We affirm.

The district court

McGovern, Sullivan,

dismissed the claims

Leahy and

against Judges

Highgas because each

enjoyed

absolute

judicial immunity for the acts he or she is alleged

to

committed.

The

judges from

"civil

have

protects

routine judicial act."

liability for

jurisdiction will

in enacting

traditional

rule

argument by

citing

judges

may be

and

F.2d 1, 2 (1st
435 U.S.

taken in

deprive a

the

judge of

Id. (citing Stump, 435 U.S. at 357).

___
_____

Mr. Di Giambattista's principal

that Congress,

immunity

any normal

"Only judicial actions

of all

absolute immunity."

judicial

(citing Stump v. Sparkman,

_____
________

(1978)).

clear absence

of

Cok v. Cosentino, 876

___
_________

Cir. 1989) (per curiam)

349, 356-57

doctrine

the RICO statute,

of judicial

held

contention on appeal is

cases in

immunity.
which

abrogated the

He supports

courts have

criminally liable

said

for violating

his
that
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
common-law
were

principles of

incorporated into

proceeded on

the assumption

legislative and
our

that

judicial immunity

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).

_______
_____

common law, judges are

Under the

generally immune from civil liability

for judicial acts, subject to the conditions described above,

but

they do not enjoy immunity from criminal liability.

O'Shea v. Littleton,
______
_________
fact

that

violating
give

judges

414 U.S.
have

been

RICO in no way

488, 503 (1974).

held

criminally
__________

a remedy not

who sue judges under the common law.

these

of Congressional

judges of

Thus,

the

liable

for

suggests that Congress intended to

civil RICO plaintiffs

_____

indication

See
___

the immunity

And, as we see no other

intent,
to

available to those

we decline

which they

to deprive

are generally

entitled by settled legal principles.

Mr. Di
should not

Giambattista also contends that

be protected

by immunity

the judges here

because they

"the clear absence of all jurisdiction."

acted in

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

conducts

doff the cloak

proceedings over

which he

subject-matter

jurisdiction.

offered by the

Supreme Court

court,

invested

only

with

settlement of estates of
try parties

of immunity
lacks any

Thus,

in

authority over

he

semblance of

a classic

120 years ago,

example

"if a

probate

wills

and

the

deceased persons, should proceed to

for [criminal] offenses,

subject of offenses

only when

jurisdiction over

the

being entirely wanting in the court, and

-4-

this

being necessarily

would

afford no

usurped

known to

protection to

authority."

On the other hand,

convicts

defendant

of

subject-matter is invested

jurisdiction

holds, the

shall

be

Fisher, 80
______

even

his commission

the exercise

if a judge in

maintains his immunity, because

which he

him in

Bradley v.
_______

(1872).

court

its judge,

of the

U.S. 335,

352

a criminal court
________

non-existent

crime,

he

"where jurisdiction over the

by law

in the judge,

manner and

exercised

are

extent in
generally

or in

the

which the
as

much

questions

for

his

determination

involved in the case . . . ."

None of the

as

any

acts identified by Mr.

probate

courts

jurisdiction, M.G.L. c. 215

questions

Id.
___

actionably extra-jurisdictional according

Massachusetts

other

have

Di Giambattista was
to this

standard.

general

equity

6, and the removal of a trustee

or executor is an exercise of such equity jurisdiction.

e.g., Gorman v.
____ ______
Judge

Stein, 1 Mass. App.

_____

Sullivan's rulings

See,
____

Ct. 244 (1973).

Thus,

trial, whether

or not

during the

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

issuing orders that

over the

jurisdiction" by hearing

affected the

case, since

subject-matter [was] invested

court which he [held]."

motions and
"jurisdiction

by law . .

. in the

Bradley v. Fisher, 80 U.S. at 352.

_______
______

-5-

Nor were the orders

Leahy

after the entry

judges'

issued by Judge Sullivan

of final judgment

jurisdiction.

contends,
judgment

Although,

the taking
may "oust"

of

an

as

appeal

the trial

and Judge

clearly beyond the

Mr.

Di Giambattista

after entry

court of

of

final

jurisdiction under

most circumstances, probate judges retain power to make postjudgment rulings

expressly

in equity

provides

that an

equity decision "shall not

such order or decree

cases because
appeal

of

Massachusetts law
an probate

court's

suspend or stay proceedings under

pending the appeal."

M.G.L.

c. 215,

23.
Similarly,
Giambattista

Judge

produce

McGovern's
additional

proceeding with his appeal was

of

Procedure.

Mr.

transcripts

Di

before

Massachusetts law.

Probate

the Massachusetts Rules of Appellate

M.G.L. c. 215,

probate judges

trial

that

not clearly beyond the bounds

her jurisdiction as fixed by

appeals are governed by

order

authority

additional portions of the

10.
to

Mass. R. App. P. 8(b) gives

require

appellants

to

transcript in appropriate

order
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,
any

because the amended complaint

actionable

conduct

committed outside

failed to allege
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
judicial

to

argue that

immunity."

"Liebman

gets a

free

However, notwithstanding

ride on

the district

court's failure to justify independently its dismissal of the

RICO

claims

affirm.

against

Liebman,

court of

appeals

we find
"can

it

appropriate

affirm

on any

to

ground

presented by the record," Acha v. United States, 910 F.2d 28,

____
_____________
30

(1st Cir.

complaint
state a

1990),

convinces us

and

our

examination of

that Mr.

claim against Liebman

the

Di Giambattista

upon which relief

amended
failed to

could have

been granted.
In order to
must plead

make out

a civil RICO

claim, a

plaintiff

and prove that the defendant committed, or agreed

to commit, a "pattern

of racketeering activity."

18 U.S.C.

1962(a),
defined

(b), (c)

and (d).

"Racketeering activity"

precisely in 18 U.S.C.

involving

murder,

controlled

1961(1) to mean (A) any act

kidnaping,

bribery, extortion,

is

gambling,

arson,

dealing in obscene matter

substances that is a felony

robbery,

or dealing in

under state law, and

(B) any one of several enumerated federal crimes.

Mr.

Di

-7-

Giambattista

says

that

racketeering

acts

of

Liebman
fraud,

obstruction of justice, but the

committed
bribery,

predicate

extortion

and

facts alleged in his amended

complaint fail to bear out these conclusory charges.

Fraud
_____
committed
mail
1343,

Mr.

Di

Giambattista

four predicate

fraud, 18 U.S.C.
constitute

does not.
Cir.

acts of
1341, and

alleged

"fraud."

that

However, while

wire fraud, 18

"racketeering activity,"

Liebman

U.S.C.

common-law fraud

Fleet Credit Corp. v. Sion, 893 F.2d 441, 445 (1st

__________________
____

1990).1

Only

one

of

the

four

fraud

allegations

contained any reference to the mails: it charged that Liebman

had interfered with

__________
postal

employee

Giambattista,
furtherance
Di

the delivery

to

not

intercept
that

of the mail
a

Liebman

summons
had

of a scheme to defraud.

Giambattista has

by causing

sent

used
____

by

the

Mr. Di
mail

in

In statutory terms, Mr.

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
_______
alleging bribery

paragraphs in the amended complaint

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

suggestion that

Liebman

and

McGovern.

gave, offered,

None

contained any

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,

law, 18 U.S.C.

201(b).

Extortion
_________
paragraphs

of

Mr.

tortious

as

if

federal law, see

___

law,

made

but it

five

allegations of

paragraphs recounted

made during litigation.

groundless and

under state

identifies

containing

without exception these

demands which Liebman

even

Giambattista

his complaint

extortion, but

sue,

Di

2(a) and 3(a), and federal

in
is

bad

A threat

to

faith, may

be

not extortion

under

I.S. Joseph Co. v. J. Lauritzen A/S,

________________
_________________

F.2d 265 (8th Cir.

1984), and we think the

751

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
________________________
identifies

five

"obstruction

predicate crimes:
jurors

of

18 U.S.C.

United

(tampering
U.S.C.

of

a witness,

1513 (retaliating

RICO statute
offenses

as

(influencing officers or
18

U.S.C.

1510

of federal crimes); 18
of state

illegal gambling

with

the

justice"

courts);

(obstructing enforcement

facilitate an

Finally,

1503

States

(obstructing investigations
1511

law with

U.S.C.
intent to

business); 18 U.S.C.

1512

victim

or

informant); and

18

against

witness, victim

or

-9-

informant).

None of the several

alleged by Mr. Di

instances of "obstruction"

Giambattista fit the definition of

any of

those crimes.2
Having
it

surveyed the amended complaint, and finding that

failed to

allege that

Liebman committed,

or agreed

to

commit, even a single predicate racketeering act, we conclude

______
that the

district court

against Liebman as well.

Affirmed.
________

____________________

properly dismissed the

RICO claims

2. Mr. Di Giambattista also alleged that Liebman committed

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