author: JAMES C. FOX, District Judge.

text:
    Henry Z. SPELL, Plaintiff, v. Charles D. McDANIEL, Ind. & as patrolman, City of Fayetteville Police Department; William P. Dalton, Command Sergeant, City of Fayetteville Police Department; Roger T. Holman, Command Sergeant, City of Fayetteville Police Department; William C. Johnson, Director of Internal Affairs Division, City of Fayetteville Police Department; Daniel K. Dixon, Chief, City of Fayetteville Police Department; John P. Smith, City Manager, City of Fayetteville; and the City of Fayetteville, N.C., a municipal corporation, Defendants.
    No. 84-06-CIV-3.
    United States District Court, E.D. North Carolina, Fayetteville Division.
    March 12, 1985.
    See also, D.C., 591 F.Supp. 1090.

      H. Gerald Beaver, Fayetteville, N.C., for plaintiff.
    Robert C. Cogswell, Jr., Fayetteville, N.C., for Homan, Dalton, Johnson, Smith & City of Fayetteville.
    Bobby G. Deaver, Fayetteville, N.C., for McDaniel.
    Carl A. Barrington, Jr., Fayetteville, N.C., for Dixon.
   ORDER

JAMES C. FOX, District Judge.

On February 20, 1985, the jury returned its verdict in this action, finding defendants McDaniel, Dalton, Holman, Dixon, Johnson, and through the official supervisory defendants, the City of Fayetteville, liable for violating plaintiff’s constitutional rights and assessed compensatory damages at one thousand dollars. As a result of the jury’s verdict, the parties have filed numerous post-trial motions. Pending before the court are: (1) defendant City of Fayetteville’s motion for judgment notwithstanding the verdict or, alternatively, to amend the judgment or dismiss; (2) defendant Dalton, Holman, Dixon, Johnson and City’s motion for judgment notwithstanding the verdict and a new trial; (3) defendant McDaniel’s motion for judgment notwithstanding the verdict and for a new trial; and (4) plaintiff’s motion for a new trial solely on the issue of compensatory damages.

The parties have responded to all opposing motions and the court heard oral argument on each motion in Wilmington, North Carolina, on March 5, 1985. Thus, all post-trial motions are now ripe for disposition and will be addressed seriatim.

A. Defendant City of Fayetteville’s motion for judgment notwithstanding the verdict or, alternatively, to amend or dismiss

The defendant City contends the court’s instructions to the jury regarding the status of the City and the final judgment entered in this action were erroneous because: (1) there was no separate instruction given as to the City; (2) the verdict form made no independent reference to the City; (3) the jurors were told that the City could be held liable through the acts or omissions of the supervisory defendants sued in their official capacities; and (4) the final judgment holds the City liable as a co-defendant absent a separate finding of liability by the jury.

Defendant’s contentions represent a continuation of the argument made by defense counsel at trial, that the City should somehow be divorced from the actions of the supervisory defendants and, further, that even assuming the City was “responsible” for any monetary judgment imposed on the supervisory defendants, the City was not “liable.” The court rejected that argument at trial and continues to do so.

In an opinion published just prior to the beginning of trial, Brandon v. Holt, — U.S. -, 105 S.Ct. 873, 83 L.Ed.2d 878 (1985), the United States Supreme Court held that a § 1983 judgment against a public official “in his official capacity” imposes liability on the entity he represents. In Brandon, the court made explicit what was previously implied in Monnell v. New York City Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978); and Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980).

Applying the principles of the above-cited cases to this action, it seems clear that the actions of the supervisory defendants, sued and found liable in their official capacities, are fairly attributable to the defendant City. A municipality is an entity; it cannot and does not act by itself. It must act by and through its agents and employees. When a citizen’s constitutional rights are violated by a de facto policy or custom which a supervisor of a municipality’s Police Department either (1) developed or maintained or (2) was aware of or reasonably should have been aware of and which the supervisor had the authority to rectify or render ineffective, but, instead, in conformity with such policy or custom, the supervisor failed to act within the scope of his authority to do so and, further, where such action or failure to act amounts to gross negligence or deliberate indifference to the constitutional rights of the citizens, then the municipality as well as the supervisor should reasonably be held accountable.

The above instruction was essentially given to the jury. It is correct and in accordance with common sense and law. Defendant’s motion predicated on an attack on the validity of this instruction is therefore DENIED.

To the extent the defendant City argues it was not liable for any actions of any official of the Fayetteville Police Department, this argument is without merit. For the purpose of evaluating the City’s potential liability under § 1983, the actions of the Chief of Police and his subordinates, in their official capacities, clearly equates with the actions of the City itself. Brandon v. Holt, 105 S.Ct. at 878.

Finally, the City’s argument that it is not “liable,” even if it is “responsible” for any monetary judgment imposed is, in the Court’s view, illogical and in direct contradiction to the clear meaning of Brandon. Brandon unequivocally holds that a judgment against a public servant in his official capacity imposes liability, not simply monetary responsibility, upon the entity that servant represents. Id. at 878.

Accordingly, the City’s motion for judgment notwithstanding the verdict or, alternatively, to amend or dismiss is DENIED.

B. Defendants’ Motions for Judgment Notwithstanding the Verdict

Defendants next move for judgment notwithstanding the verdict pursuant to F.R. Civ.P. 50(b), arguing there was no evidence to support the finding of liability as to any defendant. Defendants moved for a directed verdict at trial which was denied and since Rule 50(b) simply allows a party to renew his motion for a directed verdict, defendants’ motions now require that the evidence be re-examined to determine whether the court’s prior rulings were correct.

The standard for granting a judgment notwithstanding the verdict is the same as the standard governing the direction of a verdict. Hallmark Industry v. Reynolds Metals Co., 489 F.2d 8, 13 (9th Cir.1973); cert. denied, 417 U.S. 932, 94 S.Ct. 2643, 41 L.Ed.2d 235 (1973); O’Neill v. W.R. Grace & Co., 410 F.2d 908 (5th Cir.1969). A motion for judgment notwithstanding the verdict presents a question of law as to whether or not, when all of the evidence is considered, together with all reasonable inferences therefrom in favor of the opposing party, there exists a failure or lack of evidence to prove any necessary element of the party favored by the verdict’s case. Ries v. Sanders, 34 F.R.D. 468, 470 (N.D.Miss.1964). In reviewing the evidence, the court may not weigh the evidence or the credibility of any witness. Singer Co. v. E.I. duPont de Nemours & Co., 579 F.2d 433 (8th Cir.1978). Essentially, a trial court may only grant a judgment notwithstanding the verdict “when the evidence points all one way and is susceptible to no reasonable inferences sustaining the position of the non-moving party.” Id. at 441; 5A Moore’s Federal Practice § 50.-07(2).

Defendants contend the evidence points to only one possible conclusion, namely that plaintiff was not kneed in the groin as alleged. The court disagrees.

Plaintiff presented twenty-six (26) witnesses at trial, all tending to prove either the assault in question or a pattern of misconduct within the Fayetteville Police Department (F.P.D.) The plaintiff and an eyewitness friend, Norman Williams, testified that an unprovoked assault by defendant McDaniel occurred in the basement of the Law Enforcement Center, proximately causing plaintiffs injury. Plaintiff’s complaints of pain and his subsequent account of the incident were corroborated, in varying degrees, by witnesses Radosivich, Hess and Herzog. In addition, the testimony of Dr. Steven Rochman, plaintiff’s treating physician, clearly supported plaintiff’s statement as to the cause and severity of his injury.

Seven (7) lay citizens of Fayetteville, eight (8) present and former police officers of the F.P.D., an assistant district attorney from the Twelfth Judicial District, an expert in police civil liability and the former police attorney all testified in support of plaintiff’s allegations regarding a de facto policy, practice or custom within the F.P.D. of brutality, cover-up and misconduct. In addition, hundreds of documents contained in the two exhibit notebooks, many of the exhibits being internal F.P.D. documents, clearly assisted plaintiff in establishing his major allegations of an unconstitutional quota system for arrest, failure to discipline officers, failure to investigate citizens’ complaints, failure to supervise officers, cover-up of police misconduct, and repeated acts of excessive force and brutality. As previously stated by this court in denying the supervisory defendants’ motion for summary judgment, genuine issues of material fact with regard to all of plaintiff’s allegations were “painfully obvious.”

In conclusion, the evidence in support of plaintiff’s allegations against all of the defendants, taken in a light most favorable to the plaintiff, was substantial. The jury’s verdict on the issues of liability was supported by the evidence, and was clearly reasonable. See infra at 647-648. Accordingly, defendants’ motions for judgment notwithstanding the verdict are DENIED.

C. Defendants’ motions for a New Trial on the ground that the verdict was against the weight of the evidence

F.R.Civ.P. 59(a) requires that the trial court set aside the verdict and order a new trial, even if the verdict is supported by substantial evidence, if the verdict is: (1) against the clear weight of the evidence; or (2) based on false evidence; or (3) will result in a miscarriage of justice. Wyatt v. Interstate & Ocean Transport Co., 623 F.2d 888, 891-92 (4th Cir.1980); Williams v. Nichols, 266 F.2d 389, 392 (4th Cir.1959). A motion for a new trial differs from that of a motion for judgment notwithstanding the verdict in that the court must weigh the evidence and the credibility of the witnesses. Wyatt v. Interstate & Ocean Transport Co., 623 F.2d at 891. The trial court is not required to take that view of the evidence most favorable to the verdict winner. Indeed, the court is required to weigh the evidence for itself.

Defendants having made the motion for a new trial, the court is obligated to briefly weigh the evidence and assess the credibility of the key witnesses at trial. This determination will not favor the defendants.

There were two issues of liability at trial, first as to whether defendant McDaniel assaulted the plaintiff by kneeing him in the testicles proximately causing plaintiffs injury and second, in shorthand form, whether the assault by McDaniel proximately resulted from a de facto policy, custom or practice developed or maintained by the supervisory defendants, or of which they reasonably should have been aware, and as a result of which, the supervisory defendants’ actions or omissions amounted to gross negligence or deliberate indifference to the constitutional rights of others.

Evidence in support of the jury’s verdict as to the first issue, defendant McDaniels’ liability, was substantial. McDaniel denied ever striking the plaintiff and rested his defense on the theory that plaintiff’s severe injury occurred earlier in the day when he allegedly fell on a rock or log on a riverbank, thereby rupturing his testicle. Having listened intently to all the testimony in the trial of this action, the court is frank to say this defense appeared to be based on pure speculation and conjecture. Little, if any evidence was presented in support of this theory and that which was presented conflicted with the theory itself. See infra at 648.

On the other hand, plaintiff presented a number of witnesses, who in varying degrees circumstantially corroborated his version of the events on November 19, 1983. The plaintiff, and eyewitness Norman Williams, testified McDaniel kneed plaintiff in the testicles without provocation or justification. Although stunned, plaintiff stated he felt little immediate pain. The pain began within minutes of the incident and increased rapidly, as did the swelling of his testicle. When asked why he didn’t report the assault to the state magistrate, whom he saw within minutes of the assault for probable cause and bond purposes, plaintiff testified he kept quiet because (1) the magistrate was a female and he was embarrassed due to the nature of the injury and (2) he was scared because he was still in McDaniel’s custody at the Law Enforcement Center. Although the court was somewhat dubious of plaintiffs testimony at first, his version of the post-incident facts was subsequently corroborated by a number of witnesses.

Louis Radosovich, a jailer, with no interest in the outcome of this case and clearly, given his profession, not a man likely to be aligned in plaintiffs corner, testified that as soon as he took custody of the plaintiff (within minutes of the assault), Spell told him (1) that he had just been kicked in the testicles by a Fayetteville police officer; (2) that he was experiencing a great deal of pain; and (3) the reason he failed to tell the magistrate of the assault was because he was embarrassed and scared. Radosovich further testified plaintiff appeared to be in distress when he filled out the intake sheets before taking plaintiff to the jail. The court finds Radosovich to have been extremely • credible and given the narrow time frame involved, finds it difficult to credit defendants’ argument that plaintiff had by this time already formulated a plan to blame his earlier injury on McDaniel as a means to get out from under his pending criminal charges.

Plaintiff also told his attorney, Paul Herzog, the same story two days later and Herzog’s testimony vividly described plaintiff’s increased pain and deteriorating physical condition. The court finds Herzog’s testimony to have been extremely credible.

Further support and critical support came from plaintiff’s treating physician, Dr. Steven Rochman, who testified he had only seen one injury this severe in his professional career and that, given the precise force required to cause such a severe injury, plaintiff could not, in his opinion, have sustained such an injury simply by falling on a rock or a log as defendants theorized. Dr. Rochman, a urologist, who was not hired by the plaintiff as an expert and who had no interest in the outcome of the case, was also extremely credible and his detailed testimony as to the probable causes of plaintiff’s injury and the severity of the injury gave significant credence to plaintiff’s testimony. In addition, Dr. Rochman’s testimony helped explain one weakness in plaintiff’s case, the lack of immediate pain at the time of the blow to the testicles.

In contrast to Dr. Rochman, defendants presented the testimony of a non-treating, non-examining expert physician, hired by the defendants, Dr. William Jordan. Dr. Jordan testified that, in his opinion, plaintiff definitely could have suffered the injury in a fall on a rock or a log. The court has no reason to doubt the sincerity of Dr. Jordan’s view; however, given the time scenario involved, it seems Dr. Jordan meets himself coming and going. Dr. Jordan testified that, even given plaintiff’s prior alcohol and drug consumption, plaintiff should have experienced extensive pain simultaneous with the blow to his testicles. Thus, defendants argued, plaintiff’s lack of such a showing of immediate pain as evidenced by the testimony of the plaintiff and Norman Williams, demonstrates the gap in plaintiff’s version of the facts.

The problem with this testimony by Dr. Jordan is that it makes the defense theory that plaintiff’s injury occurred earlier in the day even more implausible, given McDaniel’s prior testimony that when he arrested Spell, sometime after the injury supposedly occurred, plaintiff was not in pain or injured in any manner. If, according to Dr. Jordan, plaintiff should have experienced pain immediately upon the blow, then plaintiff should have been in excruciating pain a few hours later when McDaniel arrested him. It seems to the court much more reasonable that plaintiff’s pain began as plaintiff testified five to ten minutes after the assault, then a few hours after his alleged fall on a rock — coincidentally not ten minutes after plaintiff alleged McDaniel kneed him.

Finally, testimony from one of defendant McDaniels’ key witnesses concerning the events of November 19, 1983, Officer Kenneth Wioskowski, convinces the court that the jury’s verdict of liability on the first issue was clearly supported by substantial evidence. About the best that can be said for Officer Wioskowski is that he contradicted defendant McDaniel’s testimony, strongly contradicted his own prior deposition testimony and was convincingly impeached by the plaintiff on cross-examination through the use of documents of record. In so testifying, Wioskowski cast considerable doubt on McDaniel and L.D. McNair’s testimony, as well as destroying, his own credibility.

Although this recitation of the evidence on the first issue has been cursory, it is sufficient for purposes of determining defendants’ motion as it relates to the incident on November 19, 1983. Even without considering the substantial evidence of the atmosphere within the F.P.D. under which defendant McDaniel was trained and supervised, the court concludes the jury’s verdict on the first issue was not against the weight of the evidence and, in fact, was demonstrably supported by the evidence.

With regard to the second issue, the trial record is replete with testimony supporting the jury’s verdict against defendants Dixon, Dalton, Holman and Johnson. Plaintiff presented eight (8) present and former members of the F.P.D. whose testimony painted a fairly convincing and disturbing portrait of the policies and practices existing within the F.P.D. during the relevant time period. These witnesses, along with the documents contained in plaintiff’s exhibit 71, provided the backbone of plaintiff’s Monnell allegations. For the most part, the police witnesses had nothing to gain and everything to lose by testifying for the plaintiff. The testimony of Officers Livingston, Lushis, Gardner, Fischer, Freeman and Matthews was extremely credible. Their testimony, particularly with regard to plaintiff’s allegations of a quota system, failure to discipline, failure to supervise, and the creation of an atmosphere of coverup and abuse within the F.P.D. was convincing and, in many cases, uncontradicted.

The court also found the testimony of Jim Ammons, an assistant district attorney, highly relevant and probative on the issues of cover-up and discipline. His testimony of the Parker investigation or lack thereof by the F.P.D. was particularly damaging to defendants Dixon and Johnson.

Finally, the instances of confirmed and uncontradicted misconduct demonstrated in defendants’ own internal affairs documents was, in the court’s opinion, devastating to defendants’ case. Although Dr. Kirkham’s expert opinion was somewhat tainted by defendants’ effective cross-examination, his basic analysis of the evidence against the supervisory defendants contained in the documents within plaintiff’s Exhibit 71 was not. These documents alone provide ample support for the jury’s verdict on issue two.

Further recitation of the evidence would be redundant and serve no useful purpose. Defendants’ motions for a new trial on the basis that the verdict of liability was against the weight of the evidence are DENIED.

D. Defendants' motions for a New Trial on the basis of the admission of ■prejudicial evidence and erroneous jury instructions

F.R.Civ.P. 59(a) further allows a motion for a new trial on the basis that substantial errors were committed at trial in the admission or rejection of evidence or the giving or refusal of instructions. Neal v. Carey Canadian Mines, Ltd., 548 F.Supp. 357, 381 (D.Pa.1982); Diane Manufacturing Co. v. Sheffield Industries, 514 F.Supp. 185, 186 (D.Fla.1981).

Defendants contend the court erroneously admitted extrinsic evidence of acts of misconduct on the part of all defendants in violation of F.R.Evid. 404(a). The problem with defendants’ argument is that it considers any evidence of excessive force, brutality, or a failure to train, supervise or discipline on the part of any named defendant, evidence essential to proving plaintiff’s Monnell allegations, as evidence of the defendants’ character. Were the court to have sustained defendants’ objections to this evidence, plaintiff would have been utterly unable to prove his claims. The evidence of defendants’ misconduct lay at the heart of plaintiff’s complaint. It was not introduced to prove defendants’ character, rather it was introduced and admitted as substantive evidence in support of the Monnell allegations in plaintiff’s complaint. See Wood v. Breier, 54 F.R.D. 7, 13 (E.D.Wisc.1972). Therefore, defendants’ motion for a new trial on this basis is DENIED.

Defendants also argue that the court improperly instructed the jury in response to their question regarding whether they could consider evidence of the problems within the police department on the first issue. The court has reviewed its response to the jury and finds it correct and in accordance with law.

Essentially, the court simply repeated its prior instruction that the jury could consider any or all of the evidence as it related to the credibility of any witness. The court further instructed the jury that evidence could be considered substantively “if and only if” the evidence related to any action or inaction on the part of defendant McDaniel and reminded the jury that they were to consider the issue of defendant McDaniel’s liability independent of the supervisory defendants’ liability. Clearly, the jury could properly consider defendant McDaniel’s work environment in determining whether or not he committed the assault upon the plaintiff. The remainder of the response instruction was a duplicate of the court’s initial instructions on the first issue and the burden of proof.

Having found no error in this instruction, defendants’ motion for a new trial on this basis is DENIED.

E. Plaintiffs Motion for a New Trial on Compensatory Damages and Defendants’ Motions for a New Trial on the ground of Compromise

Having determined defendants’ motions regarding the sufficiency of the evidence, the court reaches the last and most troublesome issue before it; to-wit, plaintiff’s motion for a new trial on the issue of compensatory damages in conjunction with defendants’ motions for a new trial on the ground of compromise. Meritorious arguments abound on both sides of the issue; however, after much thought, a considered and reasoned analysis has led the court to reluctantly conclude that principles of justice and fairness dictate plaintiff’s motion be GRANTED and defendants’ motions be DENIED. Accordingly, for the reasons set forth herein, a new trial on the issue of compensatory damages is ORDERED for April 2, 1985, in Wilmington.

For purposes of discussion the court will consider plaintiff and defendants’ motions together, since an analysis of plaintiff’s motion must, of necessity, include a decision on whether the jury’s verdict was a compromise on its face.

Rule 59(a) of the Federal Rules of Civil Procedure provides that a new trial may be granted “on all or part of the issues.” A new trial may be limited to the issue of damages, Gasoline Products Co. v. Champlin Co., 283 U.S. 494, 51 S.Ct. 513, 75 L.Ed. 1188 (1931), and this power extends to granting a new trial because of inadequate damages. Spero-Nelson v. Brown, 175 F.2d 86 (6th Cir.1949).

In the case sub judice, plaintiff contends the jury’s award of $1,000 compensatory damages is so inadequate relative to the evidence and the injury suffered by the plaintiff that it shocks the conscious and to allow it to stand would be unreasonable. Plaintiff argues that once liability was established, he was entitled to compensation for his medical bills, pain and humiliation suffered, disfigurement and permanent loss. The award of compensatory damages, Spell contends, was inconsistent with the jury’s express finding that McDaniel had assaulted plaintiff, an assault so brutal that it ruptured plaintiff’s testicle. Plaintiff contends that, although the jury believed Spell had been kneed in the testicles, when it came time to award damages, it acted on the basis of impermissible considerations, such as an unwillingness to give money to an admitted and convicted drug felon.

Defendants agree that the verdict was inconsistent and concede the compensatory damages were unreasonable, but .urge that the jury, unable to conclude the issue of liability in favor of plaintiff, rendered a compromise verdict. As a result, defendants claim they were prejudiced and are now entitled to a new trial on all issues.

Plaintiff has responded, arguing that the original verdict definitively established liability, and that forcing him to re-litigate that issue places an unfair burden on him, given the severability of the evidence as to liability and damages. Plaintiff further argues that if any prejudice occurred, it was in favor of defendants, a young police officer and his supervisory officials, and not in favor of the plaintiff, a drug trafficker. Competing inferences having been advanced by both parties, the court must apply the law to the facts and decide between them.

A partial new trial on damages may not be granted if it would infringe upon a litigant’s Seventh Amendment right to a jury trial. Burger King Corp. v. Mason, 710 F.2d 1480, 1486 (11th Cir.1983). In Gasoline Products Co. v. Champlin Refining Co., supra, the Supreme Court enunciated the standard which governs partial new trial practice:

[Wjhere the practice permits a partial new trial, it may not properly be resorted to unless it clearly appears that the issue to be retried is so distinct and separable from the others that a trial of it alone may be had without injustice.

Id. at 500, 51 S.Ct. at 515.

Thus, a jury verdict influenced by an improper compromise, on its face, cannot stand and a complete new trial is required. See, e.g., Lucas v. American Manufacturing Co, 630 F.2d 291, 294 (5th Cir.1980; Bartholemew v. Universe Tankships, Inc., 263 F.2d 437 (2d Cir.1959). A compromise verdict results when jurors resolve their inability to make a determination with any unanimity as to liability by finding inadequate damages. See Freight Terminals, Inc. v. Ryder System, Inc., 461 F.2d 1046, 1053 (5th Cir.1972). In this Circuit, a new trial on all issues is required when a “totally inadequate verdict was rendered which could only have been a sympathy or compromise verdict ... [b]ut where there is no substantial indication that the liability and damage issues are inextricably interwoven ... a second trial limited to damages is entirely proper.” Great Coastal Express, Inc. v. International Brotherhood of Teamsters, etc., 511 F.2d 839, 846 (4th Cir.1975); Southern Railway v. Madden, 235 F.2d 198 (4th Cir.1956), cert. denied, 352 U.S. 953, 77 S.Ct. 328, 1 L.Ed.2d 244 (1956). (emphasis added) As stated by the Fifth and Eleventh Circuits, a compromise verdict “is one where it is obvious that the jury compromised the issue of liability by awarding inadequate damages.” Burger King Corp. v. Mason, 710 F.2d at 1487; Freight Terminals, Inc. v. Ryder System, Inc., 461 F.2d at 1053. (emphasis added).

In order to determine whether or not a compromise verdict was reached by the jury, in cases where an inadequate award of damages resulted, courts have considered a number of factors. These factors include (1) clarity of the jury instructions and verdict form; (2) length of the jury deliberations; (3) strength of the evidence as to liability; (4) questions and notes from the jury during deliberations; and (5) whether the case involved a sympathetic plaintiff and unsympathetic defendant. See, e.g., Mekdeci v. Merrell National Laboratories, 711 F.2d 1510 (11th Cir.1983). Starting from the proposition that a jury’s verdict is to be afforded every inference that it is proper and honest, the court will apply the above factors seriatim.

First, the court’s instructions to the jury clearly mandated that they decide the issues of liability prior to any consideration of damages. Absent compelling reasons to believe these instructions were not followed in this respect, the court is extremely reluctant to enter a finding that the jury violated its oath and departed from the order of issues outlined by the court.

Similarly, the verdict form used by the jury in this matter clearly set forth the order of the issues for determination. As completed by the jury, the form reflects a rational and orderly determination of the issues as evidenced by the determination of no liability as to defendant Smith.

Second, with regard to the length of jury deliberations, considering this was a three week trial in which forty-five witnesses appeared, hundreds of documents were introduced, and the jury had to determine four independent issues as to six individual defendants, the court concludes that thirteen (13) hours of jury deliberations was not extraordinarily long, and in fact, was quite reasonable. This is in sharp contrast to the major case cited by defendants, Mekdeci, supra, wherein the court found a compromise verdict in large part because the jury sent word to the trial court that it was “hopelessly deadlocked” after four days of deliberations and then returned an inadequate verdict on the fifth day immediately after receiving a modified Allen charge. Id. at 1515. See also Hatfield v. Seaboard Airline R.R. Co., 396 F.2d 721, 724 (5th Cir.1968).

The third element to be considered and perhaps the one given the greatest weight, is the strength of the evidence of liability.

As previously summarized in a cursory fashion, the evidence supporting the jury’s verdict on issues 1 and 2 was substantial and with regard to some defendants, overwhelming. In fact, as to the supervisory defendants, the evidence of liability was so clearly established that defendants in their motion suggest the jury was so incensed by their actions that they “jumped over” the issue of McDaniel’s liability to get at them. Defendants have had a fair trial on the issues of liability and the verdicts against them are reasonable in light of the evidence. As the Fifth Circuit has stated in Edwards v. Sears, Roebuck & Co., 512 F.2d 276, 282 (1975).

... even if the jury’s verdict in its entirety was affected by undesirable factors, if the fact of liability is nonetheless fairly demonstrable ... it will not be blindly assumed that the liability issue was wrongly decided. A jury’s finding as to liability can be binding even though its monetary award is found to be [inadequate] or even improperly influenced— our deference to and faith in the jury system demands at least this much. Cf. Pingatore v. Montgomery Ward & Co., 6 Cir.1969, 419 F.2d 1138, 1142-1143, cert. denied, 398 U.S. 928, 90 S.Ct. 1818, 26 L.Ed. 90 (1970) (grossly improper argument required new trial as to damages only; substantial evidence supported jury verdict on liability.) If passion, prejudice, caprice, undue sympathy, arbitrariness or more taints only the damage award and not the liability assessment, the proper response is ... a new trial addressed to damages alone.

With regard to the fourth element, questions from the jury, application of this factor to the case at bar likewise fails to lead to the conclusion that the verdict was a compromise. Only one question was received from the jury and that question indicated a proper consideration for the distinction between liability issues one and two. Unlike the jury in Mekdeci, supra, which sent the court five (5) notes, including one stating it was “hopelessly deadlocked” and another attempting to qualify its verdict, the jury’s communications with this court in the case sub judice were limited and reasonable.

Finally, the court must consider the fact that this case is not the typical case for the finding of a compromise verdict. In most of the cases cited by counsel where a compromise was found, there have been close questions as to liability with strong affirmative defenses which have been resolved against an “unsympathetic” defendant and in favor of a “sympathetic” plaintiff. See, e.g., Schuerholz v. Roach, 58 F.2d 32 (4th Cir.1932).

In this action, plaintiff is a five time convicted drug felon and trafficker. Defendant McDaniel is a young police officer and the remaining individual defendants were McDaniel’s supervisors. Evidence of possible sympathy for McDaniel is found in the jury’s question to the court as to whether they were to disregard “the problem within the police department” in determining McDaniel’s liability. It is plausible to suggest that some jurors were concerned about whether McDaniel should be held accountable for doing what he had been taught and encouraged to do by the supervisory defendants.

Furthermore, it is not unlikely that some jurors were concerned with assessing damages against the municipal defendant knowing or suspecting that the cost would be passed on to innocent taxpayers. In summary, this case is not one where the jury, manifestly, awarded plaintiff a small verdict out of sympathy for his suffering and without regard to the question of real liability. Southern Railway Co. v. Madden, 224 F.2d at 321, See also Young v. International Paper Co., 322 F.2d 820, 823 (4th Cir.1963).

Having reviewed the above factors and found that none of them indicate a verdict “which could only have been a sympathy or compromise verdict,” the court turns to defendants’ argument that the award of minimal damages is by itself, sufficient to prove a compromise. This assertion is simply not supported by the law.

A nominal or inadequate finding of damages by itself does not automatically mandate the conclusion that the award was the product of a compromise verdict. Burger King Corp. v. Mason, 710 F.2d at 1487; Hadra v. Herman Blum Consulting Engineers, 632 F.2d 1242, 1246 (5th Cir.1980), cert. denied 451 U.S. 912, 101 S.Ct. 1983, 68 L.Ed.2d 301 (1981). Indeed, if inadequate damages were the sole test for compromise, Rule 59(a) would serve no purpose. The inquiry must focus on indicia of compromise apparent from the record as delineated and discussed above. Burger King Corp. v. Mason, 710 F.2d at 1487; Mekdeci v. Merrell National Laboratories, 711 F.2d at 1513-1514.

In the cases cited by defendants, it was the unique circumstances taken together in each trial that provided sufficient indicia of compromise. For example, in Mekdeci, supra, it was a prolonged jury deliberation with a number of jury notes and the quick delivery of an inadequate verdict after a modified Allen charge that established a compromise. 711 F.2d at 1515. In Lucas v. American Manufacturing Co., supra, cited in Mekdeci, the jury returned an inadequate award for the plaintiff after the district court informed the jury of an approaching hurricane and admonished the jury either to finish their deliberations within a brief period of time or return at a later date. Id. at 1514.

By contrast, in the case at bar, there is no substantial indication that the jury’s verdict was the result of compromise of the liability and damage questions. It is just as reasonable to assume that the jury disregarded the court’s instructions on damages because it improperly considered (1) the effect of a substantial judgment on the taxpayers of Fayetteville or (2) plaintiff’s character and extensive criminal record.

The record contains absolutely no indicia of a compromise other than the low amount of damages. The jury reached its verdict within a reasonable period of time. It obviously was not deadlocked. The jury communicated only once with the court and that communication was reasonable. The jury did not attempt to qualify its verdict. Evidence of liability was substantial. Finally, the low award of damages can reasonably be explained by the jury’s consideration of other improper factors. The totality of the circumstances simply does not point unerringly to a compromise verdict.

In this action, then, the court concludes the issues of liability and damages are distinct and separable. See, e.g., Burger King Corp. v. Mason, 710 F.2d at 1487-88; Wheatley v. Beetar, 637 F.2d 863, 867-68, (2d Cir.1980); Ries v. Sanders, 34 F.R.D. at 477. An erroneous determination as to damages should not and will not affect the reasonable determination of liability. Evidence as to damages sustained by the plaintiff is severable from any evidence as to liability, for despite the number of defendants found liable, there is but one harm to the plaintiff and the jury should have awarded Spell reasonable compensation for his injuries. In view of the undisputed evidence of plaintiff’s medical expenses, which clearly exceeded the jury’s $1,000 verdict, it is evident that the jury did not comply with the instructions of the court in determining its award of compensatory damages. Defendants concede the jury’s award was grossly inadequate, given the finding of liability, and agree that it would shock the conscience to allow the present award to stand.

The jury, having failed to recognize, at a minimum, the undisputed facts concerning plaintiff’s injuries and expenses and to award him reasonable compensatory damages to which he was entitled, a new trial on the issue of damages is mandated. Brown v. Wacholz, Inc., 467 F.2d 18, 21 (10th Cir.1972).

[I]t would be grossly unfair to plaintiff, as well as contrary to the spirit of F.R. 59, to require a retrial of the question of defendant’s culpability which has already been decided by the jury in plaintiff’s favor. Moreover, a grave injustice would occur to a plaintiff if, having submitted the question of liability to a jury, and having obtained a favorable verdict, a plaintiff should be compelled to risk another trial, with a possibility of an adverse verdict, solely because a jury failed to take into consideration all of the elements of damages as clearly instructed by the court.

Wheatley v. Beetar, 637 F.2d at 867-68 citing Yates v. Dann, 11 F.R.D. 386, 394 (D.Del.1951). See also Devine v. Patteson, 242 F.2d 828, 832 (6th Cir.1957). This court is not willing to take away plaintiff’s hard fought and fairly won verdict of liability merely to correct an unjustly inadequate award of damages that was not clearly and substantially the product of a compromise. Accordingly, defendants’ motions for a new trial are DENIED and plaintiff’s motion for a new trial on the issue of compensatory damages is GRANTED.

F. Procedural and Scheduling Guidelines for New Trial on Damages

1. A new trial on the issue of compensatory damages will be held in Wilmington, commencing April 2, 1985, at 10:00 a.m. On the issue of damages, defendants may not deny liability as established by the jury on February 20, 1985. The new trial will be solely and strictly limited to the narrow issue of how much money will fairly and adequately compensate plaintiff for his damages. The jury will be instructed to accept as fact that defendant McDaniel kneed plaintiff in the testicles on November 19, 1983, proximately causing his injuries and that defendant McDaniel’s actions proximately resulted from a de facto policy, practice or custom of the supervisory defendants as set forth in issue two of the February 20 verdict form. The jury’s task simply will be to determine the extent of plaintiff’s injury, suffering and pain resulting from defendants’ actions and then to compensate him accordingly. Wheatley v. Beetar, 637 F.2d at 868.

2. As with the original trial, this action will be pre-tried as extensively as the law will allow in a concerted effort to provide the parties with an equitable and expeditious trial. The pre-trial hearing will be held before Magistrate Dixon on March 21, 1985, at 10:00 a.m. in Wilmington.

In accordance with Rule 16 of the Federal Rules of Civil Procedure, Magistrate Dixon is directed at the pre-trial conference to:

(1) formulate and simplify all legal and factual issues to be to be tried;
(2) discuss with counsel, at length, admissions of fact and documents so as to avoid unnecessary proof at trial;
(3) issue preliminary rulings by order, pursuant to 28 U.S.C. § 636(b)(1)(A) and Local Rule 62.03, on all foreseeable questions of admissibility of evidence. In this regard counsel should have prepared a pre-trial order by the date of the pre-trial conference which notes any and all foreseeable objections to documentary evidence, discovery or foreseeable anecdotal evidence;
(4) obtain, to the greatest extent possible, stipulations from counsel regarding the admissibility and authenticity of documents;
(5) identify and mark all exhibits;
(6) establish a final and binding witness list for plaintiff and defendants;
(7) discuss with counsel the need to adopt any special procedures for managing the conduct of this very limited new trial; and
(8) discuss any additional relevant matters set forth in F.R.Civ.P. 16 and Local Rule 25.00.

3. Given the extended pre-trial conference and concomitant final order by counsel and the magistrate, the local requirement for pre-trial briefs need not be complied with.

4. Since the defenses raised by defendant McDaniel in this limited trial will be exactly the same as those of the supervisory defendants, the court intends to hold all the defendants as one party throughout this new trial for purposes of challenges, examination, time limitations and argument.

5. Each party will receive three (3) peremptory challenges for jury selection at trial as mandated by law. 28 U.S.C. § 1870; Standard Industries, Inc. v. Mobile Oil Corp., 475 F.2d 220 (10th Cir.1973).

6. Proposed voir dire questions and jury instructions shall be submitted to the court by Thursday, March 28, 1985, at 4:00 p.m.

7. Again, it is the court’s intention to establish time limitations at this trial pursuant to Rule 611(a) of the Federal Rules of Evidence. These limitations are as follows:

(a) Total testimony time for the new trial on compensatory damages shall not exceed sixteen (16) hours;
(b) Plaintiff is allowed a total of eight (8) hours for direct and re-direct examination of his witnesses as well as cross and re-cross examination of defendants’ witnesses;
(c) Defendants are allowed a total of eight (8) hours for direct and re-direct examination of their witnesses as well as cross and re-cross examination of plaintiff’s witnesses.
(d) The above time limitations are exclusive of jury selection, opening and closing arguments.
(e) The clock to be used on all established time periods will be a running clock. Time records will be kept by the Deputy Clerk of Court. All time limitations established are absolute and definitive blocks of time guaranteed the parties. Barring extraordinary circumstances, these limitations are not subject to extension.

8. As in the original trial, the basic evidentiary guidelines set forth on pages 5-6 of this court’s January 7, 1985, order will govern the April 2 trial.

SO ORDERED.

      . In point of fact, the trial instruction favored the defendant City, for absent a finding against one of the other defendants in his official capacity, an independent finding against the City alone would have been invalid. By the same token, once a finding against a supervisory defendant was entered, an independent finding against the City was rendered meaningless, since the City, in this case, would only have acted or failed to act through one or more of the supervisory defendants.

      . The court notes the testimony at trial established that the plaintiff has never given a significantly different version of the assault at any time.

      . Plaintiff also introduced evidence of prior complaints of excessive force and misconduct on the part of McDaniel through a series of documents, citizen testimony and limited testimony of certain officers.

      . Statements made by jurors and not part of the trial record cannot be used to impeach their verdict. Extrinsic evidence, such as newspaper reports of juror’s post-trial statements may not be considered. Bartholomew v. Universe Tankships, Inc., 263 F.2d 437, 448 (2d Cir.1959).

      . This trial date is final and not subject to change since the grant of a partial new trial, in essence, vacates the prior judgment in this action and renders any appeal of the order granting the partial new trial interlocutory.

      . The Clerk of Court is directed to inform counsel of the filing of this order immediately upon receipt of the order.


source: Caselaw Access Project

author: JOSEPH H. YOUNG, District Judge.

license: Public Domain

text:
    UNITED STATES of America v. Samuel Loring MORISON.
    Crim. No. Y-84-00455.
    United States District Court, D. Maryland.
    March 12, 1985.

      J. Frederick Motz, U.S. Atty., and Michael Schatzow, Asst. U.S. Atty., Baltimore, Md., for plaintiff.
    Jacob A. Stein, Robert F. Muse, Rock-ville, Md., Armistead P. Rood, and Mark H. Lynch, Washington, D.C., for defendant.
   MEMORANDUM AND ORDER

JOSEPH H. YOUNG, District Judge.

Samuel Loring Morison is charged with releasing copies of three photographs, classified “secret,” to Jane’s Defense Weekly (“Jane’s”), a British magazine. Morison had been associated with Jane’s prior to the time that the photographs were released and was paid as an American “editor” of Jane’s. Count I of the Indictment charges that Morison wilfully caused the photographs, which allegedly related to the national defense, to be transmitted to a person not entitled to receive them, in violation of 18 U.S.C. § 793(d). Count II charges Morison with the theft or conversion of those same three photographs, in violation of 18 U.S.C. § 641.

Morison is also charged with two other counts arising out of a separate incident. During the spring of 1984 there was an explosion at Severomorsk, a Soviet naval base in the Kola Peninsula. Subsequently, analysts at the Naval Intelligence Support Center (“NISC”), where Morison was employed, did a report, based on classified information, concerning the nature and extent of the damage to the base. That analysis was reported in one of NISC’s “Weekly Wires.” When Morison’s residence was searched, pursuant to a warrant following his arrest, xeroxed pages containing that analysis were found in an envelope marked “Derek Wood.” Derek Wood was later found to be one of Morison’s contacts at Jane’s. When the typewriter ribbon from Morison’s office was analyzed it was discovered that Morison had typed a letter to Derek Wood summarizing the contents of that analysis. Count III charges Morison with unauthorized possession of classified documents, wilfully retaining them and failing to deliver them to the officer or employee of the United States entitled to receive them, in violation of 18 U.S.C. § 793(e). Count IV charges Morison with theft and disposal or conversion of government property, namely those “Weekly Wires” containing the intelligence analysis of the Severomorsk incident.

Defendant Morison has filed this motion to dismiss the Indictment based on a number of grounds. He claims that the law under which he is charged in Counts I and III of the Indictment, 18 U.S.C. § 793(d) and (e), is unconstitutionally vague and overbroad and that the law, which is part of the so-called “espionage act,” was intended to punish only “espionage” in the classic sense of divulging information to agents of a hostile foreign government and not to punish the “leaking” of classified information to the press. Morison also claims that 18 U.S.C. § 641, which punishes the theft or conversion of government property without authorization, does not apply to the theft of information and that therefore Counts II and IV should be dismissed.

The relevant law under which Morison is charged in Counts I and III is found in 18 U.S.C. § 793(d) and (e), part of a broader espionage statute. Section 793(d) provides that whoever, having authorized possession or control of a document or photograph, relating to the national defense, or information relating to the national defense, which information the possessor had reason to believe could be used to the injury of the United States, and who wilfully delivers it to any person not entitled to receive it, or wilfully retains it and fails to deliver it to the officer or employee entitled to receive it, is guilty of the offense. Section 793(e) is basically the same provision, except that it refers to situations where the defendant is in unauthorized possession. Defendant Morison is charged under § 793(d) with wilfully delivering the photographs to Jane’s, which was not entitled to receive them, and under § 793(e) with wilfully retaining and failing to return the Weekly Wires containing intelligence information. Morison’s possession of the intelligence reports at his home is said to be unauthorized-

Morison is also charged under 18 U.S.C. § 641 with theft of government property, the photographs and intelligence analysis which were allegedly sent to Jane’s. 18 U.S.C. § 641 is a general statute covering all thefts and embezzlements of government property or “things of value.” Penalties for violation of the statute are determined in part by the value of the property which the government alleges was greater than $100, based in part on the payments that Morison received from Jane’s for that information.

Morison alleges that 18 U.S.C. § 793(d) and (e) are impermissibly vague and over-broad, and that given their status as espionage statutes they are not properly applied to a “leak” case. He also asserts that § 793(e) is unconstitutional because it requires a surrender of one’s Fifth Amendment right against self-incrimination. Morison also alleges that 18 U.S.C. § 641 is impermissibly vague and overbroad as applied to the theft of government information. Finally, if all else fails, Morison seeks to reserve the right to present evidence on the issue of selective prosecution, acknowledging that he does not have a factual basis for that defense.

Morison’s first attack on Sections 793(d) and (e) is that the term “relating to the national defense” is impermissibly vague and fails to give fair warning of what documents are covered by the statute. This argument relies heavily on the Supreme Court’s reasoning in Gorin v. United States, 312 U.S. 19, 61 S.Ct. 429, 85 L.Ed. 488 (1941), which arose under the predecessor statute to § 793. In that case, the Court held there was no uncertainty in a statute prohibiting the delivery of information relating to the national defense where the statute contained obvious “delimiting words” requiring intent or reason to believe that the information is to be used to the injury of the United States. Morison argues that the Court in Gorin declined to hold the statute void for vagueness only because of the presence of the intent requirement, and that because §§ 793(d) and (e) do not contain such an intent requirement, the statutory provisions are void for vagueness.

The government has responded to this assertion by noting that the statute does contain an intent requirement, although not the same requirement that was contained in the Gorin statute. Sections 793(d) and (e) require that the acts be done “wilfully;” if the transmitted item is “information” “which information the possessor had reason to believe could be used to the injury of the United States.” That requirement is not present for the delivery or retention of photographs or documents. The government contends that if a defendant, “such as Morison, wilfully transmits photographs relating to the national defense to someone who is known by the defendant not to be entitled to receive it, the defendant has violated § 793(d) no matter how laudable his motives.” According to the plain language of the statute, the government’s interpretation is correct.

Thus, although there is an intent requirement, the “delimiting” intent to injure the United States is not present in this statute and defendant argues that it is therefore impermissibly vague. Unfortunately for the defendant’s argument, the Fourth Circuit has addressed this issue and found that a similar statute was not unconstitutionally vague. In United States v. Dedeyan, 584 F.2d 36 (4th Cir.1978), the Fourth Circuit construed 18 U.S.C. § 793(f), which provides that anyone with authorized possession of documents or writing relating to the national defense, having knowledge that the same had been illegally removed or abstracted and failed to report it, is guilty of a violation of the statute. The statute does not require any intent to injure the United States or any “guilty knowledge” that the document or writing was removed or abstracted by an enemy of the United States. Defendant in that case was charged with knowing that his cousin, later found to be a Russian agent, had photographed classified information, and with failing to report it. On appeal, the defendant charged that the term “relating to the national defense” was impermissibly vague unless a scienter requirement was added. The Court found that the scienter requirement in the statute was sufficient: knowledge of the document’s illegal abstraction. The Court concluded, “[t]he defendant’s claim of vagueness is directed at the phrase ‘relating to the national defense’ in the statute. We do not find this phrase vague in the constitutional sense.” That holding applies with equal force in this case, where the only scienter required is the wilful transmission or delivery to one not entitled to receive it. As the District Court noted in Dedeyan, “[cjertainly injury to the United States could be inferred from conduct of the sort charged,” whether that conduct involves photographing documents by one foreign agent or release of national defense information to the press and public, where many foreign agents and governments can have access to the information.

In his reply brief, defendant argues that the holding in Dedeyan should not be controlling because Dedeyan involved the classic espionage situation, while this case arguably does not. In Dedeyan, the defendant was accused of knowing that the document had been abstracted by his cousin, a Russian spy, and failed to report it. Here, the situation is slightly different because it does not involve a foreign agent or the classic spy scenario. Rather, the defendant is accused of releasing classified information to the press, thus exposing that classified information to every foreign agent and government, hostile or not, in the world.

Defendant cites an impressive wealth of legislative history suggesting that § 793 was only meant to apply in the classic espionage setting. Most of defendant’s opposition to the statute’s application centers on this point. He cites phrases in the legislative history indicating that only spies and saboteurs need fear prosecution under this statute, and argues that since he is neither a spy nor a saboteur, this prosecution is unwarranted.

While it is, of course, impossible to determine exactly what Congress meant when it passed the statute, it is more likely that the type of activity that defendant allegedly engaged in was meant to be covered. Congress could very easily have meant, when it used the word “spy,” one who used his position and classified security clearance to obtain information to which he would not otherwise be entitled and release it to the world.

If Congress had intended this situation to apply only to the classic espionage situation, where the information is leaked to an agent of a foreign and presumably hostile government, then it could have said so by using the words “transmit ... to an agent of a foreign government.” In 18 U.S.C. § 794, Congress did precisely that, proscribing the gathering or delivering of national defense information to a foreign government or to an agent, employee, subject or citizen thereof. Section 793, on the other hand, proscribes disclosure of national defense information to those “not entitled to receive it.”

Finally, the danger to the United States is just as great when this information is released to the press as when it is released to an agent of a foreign government. The fear in releasing this type of information is that it gives other nations information concerning the intelligence gathering capabilities of the United States. That fear is realized whether the information is released to the world at large or whether it is released only to specific spies.

Defendant claims that by enforcing this statute in the present case involving the release of information to the press, this Court would be writing a new law, a task, it is argued, better left to the legislature. On the contrary, to read into the statute the requirement that it apply only in “classic espionage” cases where the disclosure is to an agent of a foreign government would be to ignore the plain language of the law as presently written. The statute clearly applies to disclosures of information relating to the national defense to those “not entitled to receive” such information. Any requirement that those not entitled to receive also be foreign agents must be added, if at all, by Congress.

Defendant also claims that if §§ 793(d) and (e) are construed to apply to “leaks,” then these statutes would be duplicative of other statutes Congress has chosen to pass. Defendant argues, therefore, that Congress could not have intended § 793(d) and (e) to have the meaning we now give it. In fact, the statutes which the defendant cites (Atomic Energy Act, 42 U.S.C. §§ 2274, 2277, 50 U.S.C. § 601) fill in gaps and prevent disclosures which would not otherwise be covered by § 793(d) and (e). The Atomic Energy Act, for example, prevents the disclosure of restricted data concerning nuclear weapons, material and energy to “any person.” There is no requirement that the data relate to the national defense, and disclosure to any person is prohibited. Similarly, 50 U.S.C. § 601 prohibits the disclosure of the names of covert agents. Such information may not relate to the national defense; further, § 793(d) and (e) would require proof of reason to believe that disclosure would injure the United States, and 50 U.S.C. § 601 may be designed to do away with that requirement. Thus, § 793(d) and (e), as construed by this Court, is not duplicative of other statutes, and there is no reason to believe that Congress did not intend § 793 to have this meaning.’

OVERBREADTH

Defendant also contends that Sections 793(d) and (e) are unconstitutionally overbroad because they proscribe disclosure and retention of documents relating to the national defense “which are perfectly harmless and clearly protected by the First Amendment as well as those which might lawfully be regulated because of a compelling governmental interest in secrecy.” This argument has been considered and rejected by the Fourth Circuit. When faced with this issue in Dedeyan, the Court attempted to cure any possible overbreadth by using a limiting jury instruction. The definition of “relating to the national defense” which, following Dedeyan, would be used in the Fourth Circuit would cure any possible defect of overbreadth. In Dedeyan, the trial court gave a limiting instruction requiring that to show relationship to the national defense, the government must show various things, see 584 F.2d at 39-40. The Fourth Circuit approved that procedure, noting that this limiting charge cured any problem of overbreadth. 584 F.2d at 40. Such an instruction would alleviate the possibility that any harmless material would be covered by the statute, as defendant has claimed.

Defendant next argues that the phrase “not entitled to receive” is also unconstitutionally vague, in that it fails to inform a citizen of whether his conduct is prohibited. Morison claims that because the phrase “not entitled to receive” has never been conclusively defined, there is an ambiguity in the statute that leads to an uncertainty as to the statute’s application. Morison notes that the General Counsel to the CIA has informed Congress that §§ 793(d) and (e) may not apply to leaks to the press depending on the interpretation of that phrase. The Department of Justice, however, has clearly indicated its belief that these sections apply to “leaks” to the press. Morison argues that the fact that these two executive departments disagree is a clear indication that the average citizen cannot possibly be sure of the state’s application. The government has responded by pointing out that under no circumstances is that statute unconstitutionally vague when applied to this defendant, who clearly knew by virtue of his security clearance and his signing of an agreement that classified information and documents were not to be transmitted to outsiders. Morison worked in a vaulted area, which even other employees of NISC were not allowed to enter, and therefore certainly should have known that documents were not to be disseminated to outsiders. The phrase “not entitled to receive” may therefore be given content by reference to the classification system. In United States v. Girard, 601 F.2d 69, 71-72 (2d Cir.1979), a case concerning the theft of government (DEA) information from a DEA computer, the Second Circuit held:

appellants, at the time of the crime a current and a former employee of the' DEA, must have known that the sale of DEA confidential law enforcement records was prohibited. The DEA’s own rules and regulations forbidding such disclosure may be considered as both a delimit and a clarification of the conduct proscribed by the statute, [citations omitted]

Applying that same principle here, it seems clear that authorization to possess documents and entitlement to receive them may be determined by reference to the classification system under which the defendant worked.

Defendant argues that the classification system should not be used to give content to the phrase “not entitled to receive” because Congress has on several occasions declined to enforce the classification system with criminal sanctions, and the court in giving the phrase that construction would do what Congress had declined to do. On the contrary, the President has established a system of classification and this Court may enforce it. Congress has recognized the classification system and given its support to the determination by Executive Order of who is authorized to possess and who is not authorized to possess classified information, i.e., in the Freedom of Information Act, the Internal Security Act of 1950, and in 50 U.S.C. § 783(b), which makes criminal the communication of classified information to certain persons unless authorized by the President or relevant officials. As noted in the Report of the Interdepartmental Group on Authorized Disclosure of Classified Information (March 12, 1982) (“the Willard Report”), filed by and relied on heavily by the defendant, Executive Orders have provided for a system of classification to guard national security information. Since these executive orders are issued in fulfillment of the President’s Constitutional responsibilities, they have the force and effect of law. The Willard Report also states clearly that “classified information” is covered by §§ 793(d) and (e) unless “it could not fairly be characterized as ‘relating to the national defense.” The phrase “not entitled to receive” is not at all vague when discussed in reference with the classification system, which clearly sets out who is entitled to receive (those with proper security clearances and the “need to know”) and Morison was certainly aware of the proscripts of the classification system.

Defendant has argued that even if this construction is given to the statute, the statute is impermissibly vague because then an individual would be left to make the determination of who has the “need to know,” and therefore the right to receive classification information. There can be no argument of such vagueness here, where the defendant released the information to Jane’s, which had neither a security clearance or a need to know.

The Fourth Circuit has also relied on the classification system to approve a trial court’s definition of “unauthorized possession” in terms of appropriate security clearance and performance of official duties. See United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir.1980), in which the court noted:

Section 793(e) contains another possible ambiguity. It punishes only those who have “unauthorized possession” of national defense information. The trial judge provided adequate content for this phrase by advising the jury that a person would have authorized possession if he had an appropriate security clearance and if he gained access to the document because it was necessary to the performance of his official duties.

629 F.2d at 919, n. 10. A similar limiting instruction in this case could cure the ambiguity of which the defendant complains.

SELF-INCRIMINATION

Morison also argues that § 793(e) is unconstitutional because it requires a sacrifice of the Fifth Amendment right against self-incrimination. Section 793(e) provides that one who is in unauthorized possession of a document or information and who wilfully retains it or fails to deliver it to the official entitled to receive it is guilty of an offense. Defendant argues that this is “tantamount tó a requirement that one who determines that he is in unauthorized possession of documents covered by this section must disclose this fact to a government official.” The government has responded by noting that the documents could be returned anonymously, an argument which the defendant calls “ingenuous.” There is some merit to the defendant’s argument that an anonymous return would not solve the problem, because the government could find out through fingerprint analysis, etc. who had been in possession of the document. One wonders, however, who the government would prosecute after going to all that trouble. The statute does not punish or prohibit simply being in unauthorized possession; the statute punishes those who, finding themselves in unauthorized possession, wilfully retain or fail to return to the proper government official. Therefore, an individual would not incriminate himself by publicly returning a document to the proper official, because the second element of the crime would not be present. The statute on its face therefore does not require a defendant to sacrifice his right against self-incrimination and is not unconstitutional.

CONSTRUCTION OF “WILFULLY”

In his reply brief, the defendant has argued that the Indictment should be dismissed because the government has no intention of proving the requisite level of culpability. This is evident, argues the defendant, from the government’s contention that it must only show that the disclosure or retention was done “wilfully,” which the government defines as “an intentional violation of a known legal duty,” citing United States v. Pomponio, 429 U.S. 10, 12, 97 S.Ct. 22, 23, 50 L.Ed.2d 12 (1976). Morison argues that the word “wilfully” connotes some evil purpose, and that since the government has indicated that it need not prove evil purpose, the Indictment must be dismissed.

It seems clear that either under the government’s definition of “wilfully” or under Morison’s definition, the government need not prove evil purpose. Morison may plan to argue that he disclosed these photographs in the interest in public discussion of defense, that his motives were only the best, and that therefore he is not guilty.

Morison urges that the requirement that acts be done wilfully translates to a requirement that they be done with some evil purpose and that if he acted with an intent to inform the public he did not have the requisite evil purpose. He urges this Court to adopt a construction of the word wilfully used in Hartzel v. United States, 322 U.S. 680, 686, 64 S.Ct. 1233, 1236, 88 L.Ed. 1534 (1944). In that case, the court, noting that the statute was a highly penal one restricting freedom of expression, held that the word “wilful” must be taken to mean “deliberately and with a specific purpose to do the acts proscribed by Congress.” In another sentence, the Court referred to this “evil purpose;” however, in the rest of the opinion the court refers only to the specific intent to do the evil prohibited by the statute, i.e., causing or attempting to cause insubordination, disloyalty, or mutiny. That case did not require “evil purpose” as the defendant reads it, but only required that the prohibited acts be done deliberately and with a specific purpose to do that which was prohibited. In Truong Dinh Hung, 629 F.2d at 919, the court discussed the trial court’s instruction that “wilfully” meant “not prompted by an honest mistake as to one’s duties, but prompted by some personal or underhanded motive” and apparently approved such an instruction. It seems clear that the defendant here will not find much comfort in his defense that he did what he did with good intentions, unless he can also assert a defense that he did not do so “wilfully.”

APPLICATION OF SECTION 641 TO THEFT OF CLASSIFIED INFORMATION

As the defendant properly notes, there has been no definitive court test of the applicability of 18 U.S.C. § 641 to unauthorized disclosures of classified information. Section 641 is a general statute prohibiting the theft or embezzlement of “things of value” belonging to the government. The first application of § 641 to the theft of government information came in United States v. Ellsberg, 687 F.2d 1316 (10th Cir.1982), but that case was aborted because of prosecutorial misconduct. Since then, the government has attempted to apply that section in two other cases involving the disclosure of classified information, see Truong, 629 F.2d at 919, United States v. Boyce, 594 F.2d 1246, 1252 (9th Cir.1979). In both those cases, the district court allowed the case to proceed under § 641 despite objections that § 641 was unconstitutional as applied to the theft of government information, but in both cases the Court of Appeals declined to reach the issue on appeal because of the concurrent sentence doctrine.

However, in Truong, Judge Winter wrote a separate opinion indicating that he would have reached the § 641 issue and would have found that § 641 could not be applied to the theft of government classified information. The defendant in this case has basically adopted the reasoning of Judge Winter, arguing that § 641 is unconstitutionally vague, and that that section makes it a crime for one “without authority” to sell or otherwise dispose of government property. Judge Winter’s theory and defendant’s argument is that the phrase “without authority” is unconstitutionally vague.

Section 641 has been applied to other cases involving thefts of government information, see United States v. Girard, 601 F.2d 69 (2d Cir.1979) (theft of DEA information); United States v. Friedman, 445 F.2d 1076 (9th Cir.), cert. denied, 404 U.S. 958, 92 S.Ct. 326, 30 L.Ed.2d 275 (1971). However, its application in cases involving the theft of classified information, where the “authority” or lack thereof must come from reference to the classification system, has not been approved in any case which has reached the issue at the circuit level. In Boyee, and Truong, the defendants were convicted under § 641 for thefts of government classified documents, but as noted, the Court of Appeals did not reach the issue on appeal because of the concurrent sentence rule.

The government has argued that Judge Winter’s conclusion is wrong, that it disregards the fact that Congress at different times may, in different ways, reach the same conduct with different criminal statutes. The language of the statute reaches “intangibles” such as information, and the government argues, thus the theft of classified documents would be covered by such a statute.

However, the Court does not have to grapple with the separate opinion in Truong. That portion of the opinion was stated in a case where the majority did not reach the issue and it is not controlling. The Court also notes other district courts have allowed prosecution under § 641 for similar conduct.

Defendant has also argued that even if § 641 can be applied to the unauthorized taking of government information in this case, it should not be applied where the taking involves public disclosure in circumstances which implicate First Amendment issues. Defendant argues again that in all cases in which § 641 has been applied to the theft of information, the information was being acquired for private, covert use in illegal enterprises. See Truong, Boyce, Girard. He argues that there are separate issues when the Court must deal with the assertion of First Amendment rights and that because the danger of insensitivity to the First Amendment is great, the government may not use a general law not specifically aimed at expressive conduct to regulate such conduct. Defendant argues that using § 641 to regulate the disclosure of government information gives executive branch officials unbridled discretion to enforce the statute and thereby control the flow of government information to the public. Thus, government officials would be free to enforce the statute and thereby control the flow of government information to the public. Thus, government officials would be free to enforce their own information control policy, and liability may turn on nothing more than the fact that the disclosure embarasses them or subjects them to public criticism.

These arguments have little to do with this case. It is most doubtful that Morison was asserting a First Amendment right in selling photographs and documents to Jane’s. Where the phrase “without authority” is given content by reference to the classification system, then the disclosures that could be punished under § 641 would be those where the government has asserted an interest in secrecy by classifying a document or information “secret.” It is clear that having decided that disclosures of classified information may be prosecuted under § 641, the defendant’s motive in disclosing classified information is irrelevant.

Finally, the defendant has argued that the government cannot establish the theft of a thing of value worth more than $100 and the Indictment should be dismissed. Morison argues that the statute applies only to things, not to intangibles, but that argument has been rejected by many courts. See, e.g., Girard, 601 F.2d at 69 (theft of DEA information); Friedman, 455 F.2d at 1076 (theft of grand jury information). Morison also argues that the government must establish that it was permanently deprived of the objects, but that claim too has been rejected. United States v. DiGilio, 538 F.2d 972 (3d Cir.1976), cert. denied, sub. nom., Lupo v. United States, 429 U.S. 1038, 97 S.Ct. 733, 50 L.Ed.2d 749 (1977). Finally, Morison says that since the materials he used to copy these things are not worth $100, there is no violation of the statute.

The government has asserted that it will prove that the things were worth more than $100, and they must be given an opportunity to do so. A reading of the statute would indicate that the value of the “thing” is determinative only of the appropriate penalty. Finally, the statute itself defines one measure of “value” as “market value” and the government has alleged that the market value of these documents is greater than $100, as evidenced by the fact that Jane’s paid more than $100. The Indictment will not be dismissed because of this claim.

      The dictionary (Webster's Third New International Dictionary [unabridged] (1971)) defines "spy” as "one who keeps secret watch upon a person or thing to obtain information; one engaged in seeking strategic unrelated information about a country or people by secret methods of infiltration or investigation.” Only one definition mentions the requirement of transmission to foreign agents which defendant argues is so crucial to the congressional intent: "one who acts in a clandestine manner or on false pretenses to obtain information in the zone of a beligerent with intention of communicating it to the hostile party.” It is also conceivable that Congress, in 1950 when the statute was amended, would have considered a person who "leaked” national defense information to the press a "saboteur” or one who would "weaken the internal security of the Nation" and thus subject to prosecution under the provision of the statute.
      The best guidance in determining the intent of Congress, and the first place for this Court to look in construing the statute, is the wording of the statute itself.


author: RAYMOND J. BRODERICK, District Judge.

text:
    Robert L. GLOVER v. Theodore HUNSICKER, et al.
    Civ. A. No. 83-5622.
    United States District Court, E.D. Pennsylvania.
    March 12, 1985.
    H. David Spirt, Blue Bell, for plaintiff,
    Mar¡a Parisi yickers, Senior Deputy Atty. Gen > Commonwealth of Pa., Philadelphia> Pa; for defendant,
   MEMORANDUM

RAYMOND J. BRODERICK, District Judge.

Plaintiff Robert L. Glover, Sr. has brought this civil rights action pursuant to 42 U.S.C. § 1983, alleging that the defendants, Pennsylvania State Police Troopers Steven Furlong and Thomas M. Bowman, and the Chief of Police and Security at the Norristown State Hospital, Theodore Hun-sicker, violated plaintiff’s constitutional rights by conspiring to cause: (1) an illegal search of plaintiff’s house; (2) an unlawful seizure of plaintiff’s property, which plaintiff has not yet recovered; and (3) an arrest without probable cause.

The record in this case shows that the plaintiff was arrested and charged with theft of state property from Norristown State Hospital following a search and seizure conducted at his house by the defendants on November 19, 1981. On May 18, 1982, a suppression hearing was held before the Court of Common Pleas of Montgomery County, Pennsylvania. The court found-that the arrest and the search and seizure which occurred on November 19, 1981 were lawful. However, for reasons unrelated to the legality of the search and seizure, the court dismissed the criminal charges against Mr. Glover.

Presently before this Court is a motion by the defendants for summary judgment. The defendants contend that as a result of the state court’s denial of Mr. Glover’s motion to suppress (which raised the same issues as are involved in this litigation), the plaintiff is collaterally estopped from relitigating those issues in this lawsuit. For reasons hereinafter discussed, defendants’ motion for summary judgment will be denied.

In Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980), the United States Supreme Court held that state court judgments in both civil and criminal actions are to be accorded collateral estoppel effect in § 1983 actions brought in federal court. However, the Supreme Court stated that collateral estoppel cannot be used to bar litigation “where the party against whom an earlier court decision is asserted did not have a full and fair opportunity to litigate the claim or issue decided by the first court.” McCurry, 449 U.S. at 101, 101 S.Ct. at 418. The question before this Court is whether the plaintiff in this case obtained a “full and fair opportunity” in the state court proceedings to litigate the legality of the search and seizure at his house and the legality of his arrest, in view of the fact that the criminal charges against him ultimately were dismissed.

In Jones v. Saunders, 422 F.Supp. 1054 (E.D.Pa.1976), the collateral estoppel issue was raised in a § 1983 action alleging that certain arrests were made without probable cause. In that case the state proceedings included a state judge’s denial of a suppression motion regarding the legality of the arrests and a subsequent directed verdict of not guilty. In denying collateral estoppel effect to the state judge’s decision in the suppression hearing, then Chief Judge Lord of this Court stated:

A conviction is a final judgment. An order denying a motion to suppress is not; it is interlocutory. An acquitted defendant never has the opportunity to test finally in the state court the propriety of the lower court’s ruling. A convicted defendant does. To hold that the former is estopped would, deprive a plaintiff of an opportunity for a definitive determination of important federal rights for the vindication of which the Civil Rights Act [was] specifically designed____ What we have here is a plaintiff who asserts a violation of his constitutional rights, who has had no final determination of his claim and who has no avenue available to him for such determination except a federal court. We hold here, under these circumstances, that he is not barred from the assertion of his rights by notions of collateral estoppel.

Jones v. Saunders, 422 F.Supp. at 1055. See also Whitley v. Seibel, 676 F.2d 245, 250 (7th Cir.1982) (“We doubt that collateral estoppel would ever be appropriate solely on the basis of a preliminary hearing [from which no appeal was available]”).

The case before this Court is analogous to Jones v. Saunders in that the criminal charges against the plaintiff in this case ultimately were dismissed, thereby foreclosing any opportunity to appeal the adverse determination reached in the suppression hearing. It appears that the Seventh Circuit case of Guenther v. Holmgren, 738 F.2d 879 (7th Cir.1984), is the only federal decision applying collateral estoppel in a § 1983 action based on findings in a state court preliminary hearing which subsequently was followed by an acquittal or dismissal of all. criminal charges. However, Guenther is readily distinguishable from the present case because, as the Guenther court observed, in accordance with Wisconsin criminal procedure the plaintiff in Guenther could have sought an interlocutory appeal of the state court’s probable cause determination. Guenther, 738 F.2d at 886. In contrast, Pennsylvania law did not afford the plaintiff in the present case a right to an interlocutory appeal of the state court’s denial of his motion to suppress. Thus the plaintiff in this case never was able to seek appellate review of the state court judge’s adverse determination of the issues raised in the suppression hearing. Under these circumstances, this Court has determined that the plaintiff was not afforded a “full and fair opportunity” to litigate the issues raised in this civil rights action, and that collateral estoppel cannot be applied to bar the assertion of the plaintiff’s constitutional rights in this Court. Accordingly, the defendants’ motion for summary judgment will be denied.


author: CAFFREY, Chief Judge.

text:
    Novia TURKETTE, Jr., Petitioner, v. UNITED STATES of America, Respondent.
    Civ. A. No. 84-3017-C.
    United States District Court, D. Massachusetts.
    March 13, 1985.
    Novia Turkette, Jr., pro se.
    Ernest S. Dinisco, Sp. Asst. Dist. Atty., U.S. Dept, of Justice, Boston, Mass., for respondent.
   MEMORANDUM

CAFFREY, Chief Judge.

This is a petition filed pursuant to 28 U.S.C. § 2255 by Novia Turkette, Jr. who is presently serving a 20-year sentence at the United States Penitentiary at Lewisburg, Pennsylvania.

The sentence was imposed on Novia Turkette, Jr. on September 5, 1979 and after a reversal by the Court of Appeals for the First Circuit, whose opinion is reported at 632 F.2d 896, Turkette’s conviction was reinstated by the United States Supreme Court in an opinion reported at 452 U.S. 576, 101 S.Ct. 2524, 69 L.Ed.2d 246.

The matter is before the court on the government’s motion to deny the petition. A review of the file establishes that Turkette is seeking relief on the basis of three grounds. First that “the judgment ... was passed and imposed in an illegal manner, to wit; the deputy clerk acted as a Judicial Officer, by announcing ... sentence.” The second ground is a claim that the Court exceeded its sentencing discretion authority and imposed an excessive and disparate sentence. The third ground is a claim that illegally obtained evidence was introduced at trial.

With regard to the first ground, the oral announcement of the sentence by the Deputy Clerk, I rule that Turkette’s contention is patently frivolous. The undersigned was seated on the bench and directed the Deputy Clerk as to what sentence to impose. The undersigned also signed the judgment of conviction which was identical to the sentence orally announced by the Deputy Clerk. More importantly, in its opinion in Green v. United States, 273 F.2d 216 (1st Cir.1959), affirmed 365 U.S. 301, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961), the Court of Appeals for the First Circuit has rejected the very argument Turkette now makes.

With regard to Turkette’s second ground, the claim of excessive and disparate sentence, it should be noted that although he was one of thirteen defendants, he was the only defendant indicted in each and every one of the counts in the indictment, on all of which the jury found him guilty. He faced a potential maximum sentence of 60 years. The evidence at trial proved beyond a reasonable doubt that Turkette was the ring leader and mastermind of a sophisticated, experienced and extremely well-organized gang of criminals. The presentence report further indicated that he had lived, up until the time of sentencing, solely on the fruits of his criminal activity and the presentence report established that he had never done an honest day’s work in his life. In short, the evidence at trial and the contents of the presentence report convinced the undersigned that Turkette was one of the most vicious, dangerous and anti-social felons that the undersigned has been called upon to sentence in over 20 years on this Court. For this reason, I rule that it was entirely appropriate that Turkette receive a more severe sentence than any of his fellow defendants, all of whom were shown by the evidence at trial and their individual presentence reports to be less dangerous to society than Turkette.

The third ground relied on in this § 2255 petition is the conclusory claim that illegally obtained evidence was introduced at the trial. Turkette has not articulated what evidence he claimed was illegally obtained nor has he articulated why he claims that the evidence was illegally obtained.

Accordingly, I rule on the basis of the foregoing that Turkette’s petition under 28 U.S.C. § 2255 should be dismissed.

Order accordingly.