Opinion
No. 99 C 4748
May 16, 2000
MEMORANDUM OPINION AND ORDER
Plaintiff William J. Benson ("Benson") brings this Bivens action against current and former federal prosecutors Joan Bainbridge Safford ("Safford"), Joel Bertocchi ("Bertocchi"), Fred Foreman ("Foreman"), Scott R. Lassar ("Lassar"), James B. Burns ("Burns"); federal probation officers Tony S. Morton, a/k/a Tony Smith ("Smith"), Raymond Raven ("Raven"), Michael A. Vlaming ("Vlaming"); and Financial Litigation Agent Kenneth Giles ("Giles") (collectively "Defendants"). Plaintiff was convicted on two misdemeanor counts of willful failure to file a tax return and one felony count of willful tax evasion. Defendants were involved in enforcing the terms of his probation when the district court judge vacated his conviction and ordered him released. Now before the court, in his two-count complaint, Benson alleges that Defendants (1) violated his Fifth Amendment right against double jeopardy and (2) conspired to deprive him of his First Amendment rights of speech, travel, and association. Defendants move for summary judgment on three grounds: (1) absolute and qualified immunity, (2) res judicata, and (3) waiver for failure to raise the double jeopardy issue trial. For the reasons discussed below, the court grants the Defendants' motion for summary judgment.
FACTUAL BACKGROUND
In December 1989, a jury convicted Benson of two misdemeanor counts of willful failure to file a federal tax return, 26 U.S.C. § 7203, and one felony count of willful tax evasion, 26 U.S.C. § 7206. (Plaintiff's Local Rule 56.1(b) Response to Defendants' Local Rule 56.1 Statement of Material Facts In Support of Summary Judgment ("56.1(b) Resp.") ¶ 1.) Judge Paul E. Plunkett of this court sentenced Benson to one-year terms on counts I and II (misdemeanors), and a four-year term on count III (felony). (Defendants' Local Rule 56.1 Statement of Material Facts in Support of Summary Judgment ("56.1 Statement") ¶ 2.) All three jail sentences were to run concurrently. ( Id. ¶ 3.)
Benson began serving his sentence on May 29, 1990. Benson v. United States, 969 F. Supp. 1129, 1130 (N.D. Ill. 1997). He was scheduled to be paroled on September 27, 1991. (Id.) Benson appealed and on September 3, 1991, the Seventh Circuit reversed Benson's convictions and remanded for a new trial on all charges. United States v. Benson, 941 F.2d 598 (7th Cir. 1991), as amended, 957 F.2d 301 (7th Cir. 1992). On September 4, 1991, the day after the opinion was issued, Defendant was released on bond. (Defs.' 56.1 Statement ¶ 5.) Up until that point, Benson had served 467 days in federal prison. ( Id.)
Defendant was sentenced under pre-sentencing guidelines regime, and thus became eligible for parole after serving one third of his sentence, with credit for "good time."
The Seventh Circuit held that the district court abused its discretion in admitting portions of opinion testimony from an Internal Revenue agent. United States v. Benson, 941 F.2d 598, 602 (7th Cir. 1991).
In February 1994, Benson was retried and convicted on the same three counts. ( Id. ¶ 6.) Judge John F. Grady sentenced Benson to the same concurrent terms of one year for his count II misdemeanor, and four years for his count III felony conviction. (Pl.'s 56.1(b) Resp. ¶ 7.) For the count I misdemeanor, however, unlike Judge Plunkett, Judge Grady sentenced Benson to five years probation to run consecutive to the sentences imposed on count II and III. (Defs.' 56.1 Statement ¶¶ 8, 10.) Judge Grady also imposed a criminal fine together with the costs of prosecution, the latter totaling $4,083, pursuant to 26 U.S.C. § 7201, 7201. ( Id. ¶ 9.) Benson and his criminal defense attorney never claimed during his sentencing hearing before Judge Grady that because Benson had already served more than 365 days in jail for his three concurrent sentences, the double jeopardy clause precluded the Judge Grady from entering a probation sentence on the count I. (Id.¶ 10.) Benson did, however, appeal his second conviction with respect to Count II and III. The Seventh Circuit affirmed his second conviction and sentence, rejecting Benson's sufficiency of the evidence and jury instruction arguments. United States v. Benson, 67 F.3d 641, 642 (7th Cir. 1995). Notably, neither Benson nor his counsel challenged his sentence on count I nor raised any double jeopardy arguments. (Defs.¶ 56.1 Statement ¶ 11.)
Benson began serving his second four-year sentence on November 10, 1994. ( Id. ¶ 12.) Because he had already served 467 days, and because his sentence was imposed under pre-guideline rules, Benson only served an additional 18 days in prison before being paroled in November 28, 1994 ( Id.) Shortly after being paroled, Benson requested permission from his parole officer, Officer Smith, to travel to California to speak on the invalidity of the Sixteenth Amendment. Benson v. United States, 969 F. Supp. 1129, 1131 (N.D. Ill. 1997). Officer Smith denied permission because Benson had failed to comply with various conditions of his parole. Id. Specifically, Officer Smith asserted that Benson had (1) failed to repay in full his assessment of costs attributable to his prosecution and (2) failed to provide certain financial information as required by the conditions of his parole. Id. Benson persisted with his requests, however, and on November 9, 1995, Officer Smith acceded in Benson s request to travel outside of the Northern District of Illinois as long as Benson adhered to his parole conditions. Id.
In return for his early release from prison, Benson agreed to certain conditions, including that he (1) would remain within the limits of the Northern District of Illinois and not leave the jurisdiction without permission of his parole officer; (2) would not violate any law; (3) would not associate with persons engaged in criminal activity; (4) would submit a complete and truthful monthly report as required by his parole officer; and (5) would make a diligent effort to satisfy the court's assessment of the costs of his prosecution and upon request, would provide financial information relevant to the payment of the assessment. Benson v. United States, 969 F. Supp. 1129, 1130 (N.D. Ill. 1997).
Notwithstanding the fact that he was granted permission to leave the Northern District of Illinois, Benson, in November of 1996, filed a two-count Bivens suit against Officer Smith, Deputy U.S. Attorney Safford, and several other individual1s alleging unconstitutional acts associated with his parole. See Benson v. United States, 969 F. Supp. 1129, 1131 (N.D. Ill. 1997). In Count I, Benson alleged that Officer Smith violated his First Amendment rights by threatening him with incarceration if he spoke out against the Sixteenth Amendment or traveled beyond the Northern District of Illinois to give speeches regarding the Sixteenth Amendment. Id. at 1131. In Count II, Benson alleged that Officer Smith, Deputy U.S. Attorney Safford, and several others, had engaged in three conspiracies under 42 U.S.C. § 1985: (1) releasing grand jury materials illegally in an attempt to prejudice the jury against Benson; (2) knowingly and falsely representing to the trial judge that Benson had more time to serve on his original four-year sentence; and (3) knowingly and falsely denying Benson his right to travel and speak out on matters of federal corruption by threatening Benson with incarceration. Id. Judge Alesia granted summary judgment in favor of the defendants. Id. at 1332. Rejecting Benson's constitutional allegations on numerous grounds, including absolute and qualified immunity, Judge Alesia wrote:
Because [Officer Smith] bore quasi-judicial responsibilities in deciding whether or not to allow Benson a reprieve from the travel restrictions imposed on him as conditions of parole and in enforcing the parole conditions, he should be accorded the same protection that is accorded judges and parole board members. Consequently, the court finds that [Officer Smith] is entitled to absolute immunity for his actions in enforcing the terms of Benson's parole, including his decision to deny Benson permission to travel outside of the Northern District of Illinois.Id. at 1133-34.
Benson's parole for his four-year count III sentence lasted until July 30, 1997, at which time Benson's five-year probation sentence for count I began. ( Id. ¶ 13.) On August 1, 1997, Benson began serving his five-year probation term for count I. ( Id.) In February 1998, less than seven months into Benson's probation, Defendant Deputy U.S. Attorney Safford filed a motion to have Benson's probation revoked for various probation violations, including Benson's failure to report certain financial information). ( Id. ¶ 14.) In October 1998, during a probation revocation hearing before Judge Grady, Benson argued for the first time that Judge Grady's earlier imposed probation sentence violated Benson's Fifth Amendment double jeopardy rights. ( Id. ¶ 15.) Specifically, Benson argued that the probation sentence on count I was improper because he had already sewed a one-year term associated with count I while awaiting the resolution of his first appeal. ( Id.) On March 18, 1999, approximately twenty months into Benson's probation, Judge Grady agreed with Benson and vacated his probation. ( Id. ¶ 17.) Judge Grady wrote:
While the record reveals that a condition of Benson's parole required him to provide such financial information, the record is unclear as to exactly what were the conditions of Benson's probation.
Judge Plunkett's initial sentence ordered Benson to serve his three sentences concurrently. While awaiting his initial appeal, Benson had served 467 days. Thus, according to Benson, he had served out his 1-year, or 365-day, term associated with count I.
The critical fact in this court's view is that the sentence defendant received from Judge Plunkett on Count I was concurrent with the four year sentence he received on Count III, so that, in serving 467 days on Judge Plunkett's sentence, the defendant necessarily sewed the 365 days imposed on Count I. . . . Much time and effort would have been saved, of course, had Benson raised his Double Jeopardy argument before he was resentenced. However, an illegal sentence can be challenged at any time, and this court has no alternative but to
vacate the probationary sentence imposed on Count I on April 29, 1994. (Judge Grady's March 18, 1999 Order, Ex. A to Plaintiff's Memorandum in Opposition to Defendants' Motion for Summary Judgment ("Pl.'s Opp'n").)
Soon thereafter, Benson brought this two-count complaint under the authority of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), seeking over $8 million from the various probation officers and prosecutors involved in either the supervision of his probation and/or the attempt to have it revoked. In Count I, Benson alleges violations of his Fifth Amendment rights against double jeopardy because: (1) U.S. Attorney Lassar and Deputy U.S. Attorney Safford filed numerous pleadings seeking to revoke Benson's probation and objected to Benson's motion to vacate (Complaint ("Compl.") ¶¶ 38, 44, 49); (2) U.S. Attorney Lassar, Deputy U.S. Attorney Safford, and Assistant U.S. Attorney Bertocchi appeared and prosecuted Benson during a probation revocation hearing seeking to imprison him for alleged probation violations (Compl. ¶¶ 46, 48); (3) between August 1, 1997 and October 16, 1998, Officer Smith supervised Benson as if he were on probation (Compl. ¶ 36); (4) Officer Smith, Officer Raven, and Officer Vlaming actively sought to revoke Benson's probation and have him sentenced to jail by preparing a special report regarding Benson's probation violations and testifying at Benson's probation revocation hearing (Compl. ¶ 37, 47-48); and (5) U.S. Attorney Lassar, Deputy U.S. Attorney Safford, Officer Smith, and Financial Litigation Agent Kenneth Giles collected $3,703.00 of the total $4,083.00 amount owed for the costs of prosecution which was imposed as a special condition of Benson's probation. (Compl. ¶ 50.)
In Count II, Benson alleges that, by supervising his probation and/or subsequently seeking to revoke it without the requisite jurisdictional authority, Defendants conspired to deprive him of his First Amendment rights to speak, travel, and associate. (Compl. ¶ 59.) Benson's First Amendment count is completely derivative of his Fifth Amendment count in that it is premised entirely on his probationary conditions. The court will discuss the counts contemporaneously.
Defendants now move for summary judgment, setting forth three defenses. First, Defendants allege that they are entitled to absolute or qualified immunity for their action. (Defendants' Memorandum in Support of Summary Judgment ("Defs.' Memo.") at 1.) Plaintiff contests this point. He concedes that the applicable immunity would be absolute, and not qualified, but urges that Defendants are not entitled to an immunity defense because they acted in "complete absence of jurisdiction." (Pl.'s Opp'n at 1.)
Second, Defendants assert that the First Amendment claim is barred by res judicata in that the same claim was previously litigated in the earlier case of Benson v. United States, 969 F. Supp. 1129 (N.D. III. 1997.) (J. Alesia). (Defs.¶ Memo. at 1.) Plaintiff counters arguing that "his causes of action embraced in the complaint before this Court hadn't even arisen at the time the first complaint was heard," and thus res judicata does not apply. (Pl.'s Opp'n at 2.)
Third, Defendants assert that Plaintiff has waived his right to seek damages because he had not previously objected to the imposition of his illegal sentence. (Defs.' Memo at 1.) Plaintiff asserts that "an illegal sentence can be challenged at any time," and thus "there is no waiver as a matter of law." (Pl.'s Opp'n at 2.)
For reasons set forth below, the court finds Defendants enjoy absolute immunity, and need not reach the remaining defenses.
DISCUSSION
Defendants claim that they are absolutely immune from suit. (Defs.¶ Memo., at 4-10.) Courts employ a "functional approach" to determine whether a governmental official is entitled to immunity. Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993). Under this approach, courts examine the "nature of the function performed" by the official when the alleged constitutional infringement occurred, not the title of the official in question. Wilson v. Kelkhoff, 86 F.3d 1438, 1443 (7th Cir. 1996). If the actions of an official are "quasi-judicial" in nature or "intimately associated with the judicial process itself," absolute immunity is appropriate. See, e.g., Imbler v. Pachtman, 424 U.S. 409, 423-24, 427 (1976) (prosecutors); Buckley v. Fitzsimmons, 509 U.S. 259, 270 (1993) (prosecutors); Walrath v. United Stares, 35 F.3d 277, 280-81 (1994) (probation officers) ("activities which are `inexorably connected with the execution of parole revocation procedures and are analogous to judicial action' are entitled to absolute immunity." (quoting Trotter v. Klincar, 748 F.2d 1177, 1182-83 (7th Cir. 1984).) Defendants maintain that both their supervision and their attempted revocation of Benson's probation were quasi-judicial activities for which they are entitled to absolute immunity. (Defs.' Memo., at 4-10.)
Plaintiff concedes that the nature of Defendants' conduct falls within the prosecutorial or quasi-judicial category covered by absolute immunity. (Pl.'s Opp'n at 2.) Specifically, Benson agrees that the "acts of the Defendants during trial and sentencing, even including the illegal sentencing" are ordinarily acts for which Defendants enjoy absolute immunity. (Id. at 4.) Plaintiff asserts, however, that an exception to absolute immunity exists when an official has acted in the "clear absence of all jurisdiction." ( Id. at 2-3 ( quoting Bradley v. Fisher, 80 U.S. 335, 351 (1871)). Benson contends that the probationary sentence Judge Grady imposed upon him, which was later vacated, violated his double jeopardy rights and thus was entered in the "clear absence of jurisdiction." (Pl.'s Opp'n at 3.) Benson thus concludes that all of Defendants" alleged acts taken after August 1, 1997 (the first day of Benson's probationary sentence) pursuant to this faulty sentence, were also conducted in the "clear absence of authority." ( Id. at 4.)
Plaintiff supports his claim by citing Bradley, 80 U.S. at 351-52, Stump v. Sparkman, 435 U.S. 349 (1978), and John v. Barron, 897 F.2d 1387 (7th Cir, 1990), all cases which articulate the general rule that judicial acts performed in the "clear absence of jurisdiction" are not protected by absolute immunity. Bradley, 80 U.S. at 351-52; Stump, 435 U.S. at 356-57; John, 897 F.2d at 1391. While indeed these case do enunciate this rule, these cases all reach holdings that are ultimately of no assistance to Plaintiff. For example, in Bradley, the Supreme Court held that a judge was immune for his judicial acts. Bradley, 80 U.S. at 351-52. The Court reasoned that although the judge's acts were performed in excess of his jurisdiction, they were not performed in the clear absence of jurisdiction. Id. The Court illustrated the distinction between lack of jurisdiction and excess of jurisdiction with the following examples:
if a probate court, invested only with authority over wills and the settlement of estates of deceased persons, should proceed to try patties for public offences, jurisdiction over the subject of offences being entirely wanting in the court, and this being necessarily known to its judge, his commission would afford no protection to him in the exercise of the usurped authority. But if on the other hand a judge of a criminal court, invested with general criminal jurisdiction over offences committed within a certain district, should hold a particular act to be a public offence, which is not by the law made an offence, and proceed to the arrest and trial of a party charged with such act, or should sentence a party convicted to a greater punishment than that authorized by the law upon its proper construction, no personal liability to civil action for such acts would attach to the judge, although those acts would be in excess of his jurisdiction, or of the jurisdiction of the court held by him, for these are particulars for his judicial consideration, whenever his general jurisdiction over the subject-matter is invoked.Id. at 352. Thus, where jurisdiction over the subject matter is vested in a judge, the manner and extent in which the jurisdiction shall be exercised are matters for the judge's determination; the availability of absolute immunity does not hinge on the correctness of these determinations. Id. 351-52.
Likewise in Stump, the Court held that a state trial judge had not acted in the absence of jurisdiction when he approved the plaintiff's mother's petition to allow a tubal ligation to be performed upon the plaintiff. Stump, 435 U.S. at 357. The Court stated:
A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the "clear absence of all jurisdiction. . . .
[T]his erroneous manner in which [the court's] jurisdiction was exercised, however it may have affected the validity of the act, did not make the act any less a judicial act; nor did it render the defendant liable to answer in damages for it at the suit of the plaintiff, as though the court had proceeded without having any jurisdiction whatever. ..Id. at 356, 359 ( quoting Bradley, 80 U.S. at 357.) A judge will not be deprived of immunity because his or her action was wrong, malicious, or in excess of his authority.
Finally, in John, the Seventh Circuit held that a state trial judge had absolute immunity from liability for his alleged violation of the plaintiff's right to a fair trial. Plaintiff alleged that the judge had unlawfully conspired to deprive him of his rights when he granted the petition of two other trustees to remove him from his position as trustee of a foundation. Because the judge's actions were undertaken in his judicial capacity and were within the subject matter jurisdiction of the court, the Seventh Circuit upheld dismissal of plaintiff's complaint. John, 897 F.2d at 1391-392.
Plaintiff argues that inasmuch as he had already served out his count I misdemeanor sentence, Judge Grady lacked jurisdiction to impose any additional sentence for that count; consequently, that sentence was void. (Pl. Opp'n., at 5.) Plaintiff contends when he was released from parole, and his probation for count I began, "[n]either the Probation Department, the Department of Justice, nor the Court had any jurisdiction whatsoever over Plaintiff." ( Id. at 6.) Thus, in supervising his probation, and later seeking to have his probation revoked, Defendants, like Judge Grady, acted in the absence of the jurisdictional authority. ( Id. at 6-7.) By acting pursuant to Judge Grady's jurisdictionally void probation sentence, Plaintiff contends Defendants forfeited their absolute immunity from suit. (Id. at 7.)
Notably, Judge Grady himself is not a defendant in this case. Thus, the case law concerning the absolute immunity available to a judge is applicable only by analogy.
Plaintiff's argument lacks merit. At the center of Plaintiff's argument is the assumption that a sentence later vacated on the account of double jeopardy concerns was initially imposed in the clear absence of authority. While federal district courts are courts of limited jurisdiction, it is well within the jurisdiction of a federal district judge to try criminal cases and impose sentences. Giardono v. Jones, 867 F.2d 409, 413 (7th Cir. 1989). Judge Grady had subject-matter jurisdiction to hear Plaintiff's case and similarly had subject matter jurisdiction to sentence him. The fact that Judge Grady later determined he had made an error, and consequently vacated the probation sentence, does not necessitate a finding that he initially acted in "clear absence of jurisdiction." To the contrary, it is well settled that "a judge will not be deprived of immunity because the action he took was in error . . . ." John Barron, 897 F.2d 1387, 1391 (7th Cir. 1990) ( citing Stump v. Sparkman, 435 U.S. 349, 356-57 (1978).
The cases Plaintiff relies on do not support the inference that a sentence placing a defendant in double jeopardy is void because the judge lacks the authority to hear the case. At most, they support the inference that a sentence that violates the double jeopardy clause is void because it is in excess of jurisdiction; that is, because the sentence exceeds the limits of the judge's discretion in the exercise of the court's subject-matter jurisdiction. Bradley, 80 U.S. at 351-52; Stump, 435 U.S. at 356-57, n. 7; John, 897 P.2d at 1391. The Bradley Court makes this point more or less explicitly: the probate judge who hears a criminal case acts in the absence of jurisdiction; but the criminal law judge who sentences "a party convicted to a greater punishment than that authorized by the law" acts in excess of jurisdiction. Bradley, 80 U.S. at 352.
At worst, therefore, Judge Grady's probation sentence exceeded his jurisdiction. The suggestion that this fact renders the Defendants' conduct unconstitutional is even weaker. Id.; Stump, 435 U.S. at 356-57; John, 897 F.2d at 1391. Plaintiff has not explained how the fact the judge imposed an improper sentence (if he did) would establish that Defendants acted improperly in carrying out the court's orders. Indeed, governmental officials, such as prosecutors, and probation officers who cannot be punished for seeking to enforce a facially valid criminal sentence, especially where the defendants' enforcement efforts all occurred before the criminal sentence is ultimately vacated. See Henry v. Farmer City State Bank, 808 F.2d 1228, 1238-39 (7th Cir. 1986) (non-judicial officials have absolute immunity in executing a facially valid court order); Patton v. Pryzbylski, 822 F.2d 697, 699 (7th Cir. 1987) ("Policeman can rely on the warrant — he doesn't have to cross-examine the judicial officer who issued it."); Carver v. Heisner, 986 F.2d 1424, (7th Cir. 1993) ("Generally, an arrest made pursuant to a facially valid warrant precludes section 1983 action for false arrest, false imprisonment, or malicious prosecution, even if the arrest warrant is later determined to have an inadequate factual foundation.") (citing Juriss v. McGowan, 957 F.2d 345, 350 (7th Cir. 1992).)
All of the alleged wrongful acts occurred before Judge Grady vacated the probation sentence. Had the alleged acts occurred after Judge Grady vacated the probation sentence, the outcome of this case might be different. But such are not the facts of the case before the court. To the extent that Defendants' alleged wrongful acts were executed pursuant to Judge Grady's facially valid probationary sentence, the court finds that Defendants are absolutely immune from suit. Defendants' motion for summary judgment is granted.
In fact, Judge Grady agreed with the United States that Benson had indeed violated the conditions of his probation
CONCLUSION
For the reasons discussed above, the court grants summary judgment (Doc. 8-1) in favor of Defendants.
.