author: LOVELL, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. Dale H. MALQUIST, Defendant.
    Crim. No. 85-17-H-CCL.
    United States District Court, D. Montana, Helena Division.
    Oct. 11, 1985.

      F. Woodside Wright, Helena, Mont., for defendant.
    Barry D. Rhoads, Robert L. Miskell, Sp. Attys. Dept, of Justice, Washington, D.C., for plaintiff.
   MEMORANDUM

LOVELL, District Judge.

This memorandum further explains the basis for the Court’s order of September 11, 1985 denying defendant’s application for bail pending appeal. For the reasons set forth below, I find: (1) defendant failed to establish by clear and convincing evidence that he is not likely to flee or present a danger to any person or the community; and (2) defendant's appeal does not present a substantial question of fact or law likely to result in reversal of his conviction or in an order for a new trial.

BACKGROUND

Defendant, an avid student of tax protest, was charged with, and by the jury found guilty of, six counts of failure to file federal income tax returns, 26 U.S.C. § 7203. For the six years in issue (1978-1983 inclusive) defendant actually filed “return” forms refusing to disclose any financial information and containing multiple declarations of fifth amendment privilege. On one “return” he listed his middle name as “Object.” He also attached to each return dozens of pages of extraneous materials criticizing United States foreign policy, our monetary system and otherwise expressing dissatisfaction with our government.

The United States proved that Defendant received approximately $168,000 of gross income during these six years in which he refused (and still refuses) to file valid tax returns. Also, Defendant filed W-4 forms, sometimes claiming dozens of dependents, so that his employers would not withhold tax from his wages. The result is that the United States got no tax from the $168,000 of income which Defendant received.

Defendant subscribed to the publications and views of the Golden Mean Society, a tax protest group located in Montana. He mistakenly believes that the fifth amendment protects him from having to disclose any financial information requested on a standard individual tax return form. He also supports his fifth amendment claim with the commonly expressed tax protester fear that he will be prosecuted for a good faith mistake if he does fill out the return, and he has attached materials to some of the filings supposedly supporting this contention. Defendant has also conveyed away his property in trust for his two daughters, apparently attempting to avoid collection of tax by the government. Interestingly, Defendant’s wife has filed valid returns for each of the six years for which Defendant has refused to file.

Notwithstanding the $168,000 in income received by Defendant and his conveyance to the trust, Defendant petitioned the court for appointment of counsel, claiming to be a pauper. The court appointed counsel for Defendant at government expense.

On the trial, Defendant attempted one additional defense. He claimed (in addition to the general claim of privilege) that an IRS agent had “read him his rights” in 1977 in connection with a criminal investigation of the improper W-4 forms, and that this also justified him in invoking the fifth amendment during each of the following six tax years. Apparently he claims that this contact frees him from any obligation he might otherwise have to file income tax returns — and to pay tax in connection therewith.

Defendant was sentenced to one year on each of the six counts with the terms on the first four counts to run consecutively.

After sentence was imposed, Defendant moved for bail pending appeal pursuant to 18 U.S.C. § 3143. I denied this motion and in the order indicated that this explanatory opinion would follow.

DISCUSSION

A. Introduction.

This analysis begins with the applicable statute, 18 U.S.C. § 3143(b), which recently was amended as part of the Bail Reform Act of 1984. Pub.L. No. 98-473, §§ 202-210, 98 Stat. 1837, 1976-87 (codified in various sections of 18 U.S.C.). The statute provides in part:

RELEASE OR DETENTION PENDING APPEAL BY THE DEFENDANT.

The judicial officer shall order that a person who has been found guilty of an offense and sentenced to a term of imprisonment, and who has filed an appeal or a petition for certiorari, be detained, unless the judicial officer finds—
(1) by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released pursuant to Section 3142(b) or (c); and
(2) that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in reversal or an order for a new trial.

18 U.S.C. § 3143(b). Section 3143(b) was enacted to check the trend toward “liberalization” of the standard for allowing bail pending appeal. The legislative history indicates that the statute, in essence, creates a presumption against post-conviction release. The Senate Report states in part:

It has been held that although the denial of bail after conviction is frequently justified, the current statute (the Bail Reform Act of 1966) incorporates a presumption in favor of bail even after conviction. It is this presumption that the Committee wishes to eliminate in Section 3143....
Once guilt of a crime has been established in a court of law, there is no reason to favor release pending imposition of sentence or appeal____
The Committee intends that in overcoming the presumption in favor of detention (created by the Bail Reform Act of 1984) the burden of proof rests with the defendant.

S.Rep. No. 225, 98th Cong., 2d Sess. 26-27, reprinted in, 1984 U.S.Code Cong. & Admin.News 3182, 3209, 3210 (citations omitted). As the legislative history indicates, Congress recognizes the basic principle that a conviction is presumed to be correct. Thus, release of a defendant pending appeal may be granted only if the court finds that the defendant is not likely to flee or pose a danger to the community, and that defendant raises substantial questions likely to result in reversal.

B. Likelihood of Flight/Danger to the Community.

Section 3143(b)(1) requires the judicial officer to detain a defendant pending appeal unless the defendant proves “by clear and convincing evidence that he is not likely to flee or pose a danger to the safety of any person or the community” if released. This is the same standard as is set forth in Section 3143(a) for release of a defendant pending imposition of sentence. The Court ordered Malquist released pending sentencing pursuant to 18 U.S.C. § 3143(a) on July 26,1985. While the Court had considerable reservations about releasing Malquist at that time, I believed presentence release to be in the best interests of defendant and justice. I afforded Malquist an opportunity to put his personal affairs in order.

Defendant’s situation has changed since sentence was imposed on August 27, 1985. Malquist now faces a substantial prison term. He also refuses to accept the fact that he has violated the law. Malquist continues to adhere to his belief that he is not, and was not, obligated to file federal income tax returns reporting his financial and tax status to the government. The Court determines, therefore, that defendant has not carried his burden of proving by clear and convincing evidence that he is not likely to flee. The determination is based upon the testimony during the in camera hearing held prior to trial, the evidence adduced at trial, the Court’s discussions with defendant at sentencing and at the hearing on the motion for bail pending appeal, and the Court’s observations during all of these proceedings.

The record reveals defendant presently is unemployed. His past work history is sporadic and shows him to be transient. As a skilled electrician, defendant is not tied to this area or this country but could find employment anywhere. Malquist’s employment status weighs against post-conviction release.

The nature of the offenses with which defendant was convicted also weighs against his release. He was convicted of six counts of willfully failing to file tax returns. Despite the non-violent nature of these offenses, the Court finds defendant willfully rejected a known legal duty. The militant lack of responsibility evident in such conduct appears to make defendant a serious flight risk.

The evidence against defendant in this case was substantial, and militates against release on bail pending appeal. Defendant’s financial status, too, weighs against release. Malquist has purposefully divested himself of his assets, establishing a trust for his children, in an apparent attempt to evade taxation. Financially, defendant would have nothing to lose by fleeing the jurisdiction. Given his skills as an electrician and his ability to earn a significant income, Malquist’s present dearth of liquid assets would not hinder attempted flight.

Defense counsel urges the Court to consider the fact that defendant has appeared before the Court whenever ordered to do so. Although this weighs in Malquist’s favor, I note that, prior to trial, Defendant apparently had a belief that he would prevail at trial. Even after conviction, defendant could hope for probation. Now, Mal-quist faces a maximum four-year sentence, subject only to his possible success on this appeal.

The Court finds that defendant’s family ties weigh in his favor. Malquist’s wife and children appear supportive, and flight could only work to damage that relationship. Still, these family ties did not prevent Malquist from violating the law in the first instance. After weighing the relevant factors, I conclude that defendant has failed to present clear and convincing evidence that he is unlikely to flee. The Court is further convinced that no restriction short of post-conviction detention is reasonably certain to secure defendant’s appearance upon resolution of the appeal.

At the hearing on defendant’s motion for bail pending appeal, Malquist presented no substantive evidence on the “dangerousness” issue. I have no specific reason to believe Defendant is dangerous, but Mal-quist has failed to demonstrate by clear and convincing evidence that he does not pose a threat to the safety of the community.

C. Substantial Question of Fact or Law.

Even if the Court were to conclude that defendant does not pose a flight risk or a danger to the community, the analysis under 18 U.S.C. § 3143(b) would not be complete. I still must address the issue of whether defendant’s appeal “raises a substantial question of law or fact likely to result in reversal or an order for a new trial.” 18 U.S.C. § 3143(b)(2). The Ninth Circuit interprets the word “substantial” in the statute quoted above as defining the level of merit required in the question raised on appeal and the phrase “likely to result in reversal or an order for a new trial” as defining the type of question that must be raised. United States v. Handy, 761 F.2d 1279, 1280-81 (9th Cir.1985). Accord, United States v. Miller, 753 F.2d 19 (3rd Cir.1985); United States v. Giancola, 754 F.2d 898 (11th Cir.1985).

In order to secure his release on báil, defendant need not demonstrate at the outset of appellate proceedings that his appeal probably will result in reversal. That would be tantamount to requiring the trial court to certify that it believes itself to be in error. (In that circumstance I would grant a new trial.) Congress certainly did not intend to limit bail pending appeal to cases in which the district court rules that reversal is more likely than not. The legislative history states that the purpose of the statute is to require “an affirmative finding that the chance for reversal is substantial.” S.Rep. No. 98-225, 98th Cong., 2d Sess. 27, reprinted in, 1984 U.S.Code Cong. & Admin.News 3182, 3210.

There is Ninth Circuit authority on the issue of how much merit there must be to a question in order for a court to find it to be a “substantial question.” Historically, the phrase “substantial question” has referred to issues that are “fairly debatable.” Included within this definition have been questions that are novel and questions that are not readily answerable. In short, a substantial question is one of more substance than would be necessary to a finding that it was not frivolous. See, for example, Handy, 761 F.2d at 1281-83; Gardner v. Pogue, 558 F.2d 548 (9th Cir. 1977):. Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983). I cannot make such a finding here.

The court has reviewed defendant’s grounds for appeal and finds that these questions are not substantial. From the outset of this case, defendant claimed that he validly exercised his fifth amendment rights in submitting what he claims to be tax returns for the years 1978 through 1983.

If validly exercised, the fifth amendment privilege against self-incrimination is an absolute defense to a prosecution for failure to file income tax returns. Garner v. United States, 424 U.S. 648, 662-63, 96 S.Ct. 1178, 1186-87, 47 L.Ed.2d 370 (1976). That privilege, however, does not justify an outright refusal to file any tax return at all nor is it a license to cease filing forever. United States v. Sullivan, 274 U.S. 259, 263, 47 S.Ct. 607, 71 L.Ed. 1037 (1927). Rather, a proper fifth amendment objection is made only in response to specific questions asked on the return form. Id.

The record reveals Malquist asserted a fifth amendment privilege on documents that he submitted to the Internal Revenue Service for the tax years in question. He did so on such a wholesale basis, however, as to deny the government any meaningful financial or tax information. Tax return forms devoid of financial information do not constitute “tax returns” within the meaning of 26 U.S.C. § 7203. United States v. Klee, 494 F.2d 394, 397 (9th Cir.1974). Thus, the court concluded that the protest documents filed by Malquist for the years 1978 through 1983, containing no information from which tax liability could be computed, were not tax returns. The court instructed the jury, in part, that the forms submitted by Malquist did not satisfy the filing requirement of 26 U.S.C. § 7203. This issue is not “fairly debatable.” The Courts of Appeals unanimously adhere to the principle that forms devoid of any financial information are not “tax returns” within the meaning of the statute.

The Court also instructed the jury that, as a matter of law, defendant did not validly exercise his fifth amendment rights on the purported returns for 1978-1983. Under the rule set forth in United States v. Neff, 615 F.2d 1235 (9th Cir.1980), the determination that the forms submitted by Malquist were not tax returns did not render invalid his exercise of the privilege against self-incrimination. The rule of Neff requires the court to make an independent fifth amendment analysis of defendant’s claims.

For Malquist’s assertion of the fifth amendment privilege to have been valid, he must have faced “substantial hazards of self-incrimination” that were “real and appreciable” and not merely “imaginary and unsubstantial.” Neff, 615 F.2d at 1239 (citations omitted). Moreover, Malquist must have had “reasonable cause to apprehend (such) danger from a direct answer” to the questions posed to him. Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed. 1118 (1951).

In response to defendant’s motion to dismiss the indictment on the ground that the validly exercised his fifth amendment privilege, the Court conducted a pretrial in camera hearing on the issue. Even though Neff does not require such a hearing on a defendant’s fifth amendment claim, the Court wanted to afford Malquist and his counsel the opportunity, on the record, for full explanation. After this pretrial hearing, the Court determined defendant’s fifth amendment claim was not valid.

Implicit in the Supreme Court’s ruling that taxpayers cannot rely on the fifth amendment to justify a complete failure to file, is the proposition that the statutory filing requirement does not, in and of itself, violate the privilege against self-incrimination. The inquires on a tax return form are “neutral on their face and directed at the public at large____” Albertson v. SACB, 382 U.S. 70, 79, 86 S.Ct. 194,199,15 L.Ed.2d 165 (1965). For Malquist’s claim to have been valid, he had to demonstrate something peculiarly incriminating about his circumstances to justify his failure to comply with a known legal duty. He did not do so — in general or in connection with the IRS contact.

If anything, the tax protest nature of the materials Malquist appended to his purported returns suggests that his refusal to comply with the tax laws was motivated solely by his selfish desire to avoid taxation. These appended materials include an extensive criticism of the federal monetary system and federal expenditures. Neither the Internal Revenue Service nor this Court have been presented with any indicia of potentially incriminating questions on the return forms. Rather, defendant’s failure to file complete returns stems from his displeasure with federal policy. Defendant’s disagreement with federal policy does not justify violation of the law.

An exchange between Malquist and the Court during the pretrial hearing supports the finding that defendant did not genuinely fear self-incrimination:

Court: [T]he purpose of the proceeding today is to grant your request to examine the returns and allow you in camera to explain your having invoked the fifth amendment privilege against self-incrimination. Do you understand that fully?
Malquist: Partially.
Court: What is it that you don’t understand?
Malquist: The way you quoted the fifth amendment privilege.
Court: What is it about that that you don’t understand?
Malquist: That I don’t necessarily feel I may have had to have done something that might incriminate me to invoke the Fifth Amendment. I just thought it said that I don’t have to be compelled to be a witness, (emphasis supplied).

Additionally, defendant has indicated that his fear of self-incrimination, if any, stemmed from a 1977 contact between himself and two agents of the Internal Revenue Service’s Criminal Investigation Bureau. Malquist’s position is inconsistent with his filing of valid tax return materials, shortly after such contact, requesting a refund for tax years prior to those in question herein. It would appear that Mal-quist’s fear of self-incrimination is present only in years in which he incurs a tax liability. Based upon the defendant’s testimony, the evidence presented at trial and the Court’s own observations, Malquist’s reliance on this single contact with the IRS appears as much an afterthought as anything else. In any event, this episode did not justify a valid invocation of the fifth amendment.

The Court’s rulings that the documents submitted by defendant were not “tax returns” and that defendant did not validly exercise his fifth amendment rights did not, of course, necessitate a finding of guilt by the jury. The jury was further instructed that a failure to file must be a willful failure to comply with a known legal duty in order to constitute an offense. The evidence against defendant was substantial and fully supports the verdict.

Finally, I cannot help but note that this defendant has enjoyed the benefit of living in the freest society in the history of civilization. Still, he is unwilling to pay his fair share (or anything) toward its maintenance. If everyone acted as Defendant has, our country would fall. He came into these proceedings with the belief that he is entitled to read and invoke the Constitution as he sees fit without regard to the decisions of this country’s courts. He maintained that posture throughout this case: from the pretrial hearing on his Fifth Amendment claim through the post-conviction hearing on the motion for bail pending appeal. During sentencing, I attempted to determine whether Defendant would recant, and would agree to obey the law. He stubbornly refused and insisted that he could read and understand the Constitution without aid or benefit of the courts:

Court: You still believe that you have the right to refuse to set forth, on a tax return, the amount of your income and the deductions or exemptions that you claim and other financial information that the tax return calls for?
Malquist: While I'm under a criminal investigation, you bet I believe I have the right; and I was never told that I wasn’t under the investigation until the second day of this trial.
Court: Your testimony, in the in camera hearing, was that that type of information wasn’t any of the government’s business. And isn’t that what this group that you’ve been reading their literature, isn’t that what they instruct?
Malquist: They haven’t instructed me.
Court: You’ve read their literature?
Malquist: I’ve read a lot of literature, not only from them. I’ve sat in law libraries and read law books, too.
Court: Isn’t that what the literature indicates?
Malquist: No, it indicates that you have the right to live by the Constitution of this country, which is supposed to be the supreme law of the land.
Court: And your own interpretation of that Constitution, as opposed to that which the courts have decided; is that right?
Malquist: Yeah, I think that’s right because, you know, I can read.

The questions raised on appeal by defendant are not “fairly debatable.” The law on these issues is clear. I cannot identify any case law authority indicating that defendant’s thesis has found support in the other federal courts. Defendant has not presented any “substantial question of law or fact.” Also, I cannot believe this appeal “would likely result in reversal.” Defendant has not overcome the statutory presumption in favor of detention pending appeal.


source: Caselaw Access Project

author: BUA, District Judge.

license: Public Domain

text:
    UNITED STATES of America ex rel. Jackie HANCOCK, Petitioner, v. Warden Steven McEVERS, Respondent.
    No. 85 C 2163.
    United States District Court, N.D. Illinois, E.D.
    Oct. 11, 1985.

      Jackie Hancock, pro se.
    Neil F. Hartigan, Atty. Gen. by Jack Donatelli, Asst. Atty. Gen., Chicago, 111., for respondent.
   MEMORANDUM AND ORDER

BUA, District Judge.

Jackie Hancock (“petitioner”) was charged with armed robbery in the Circuit Court of Cook County, Illinois. After a jury trial, he was found guilty and sentenced to 15 years imprisonment. The Illinois Appellate Court affirmed the conviction. People v. Hancock, 110 Ill.App.3d 953, 443 N.E.2d 226, 66 Ill.Dec. 543 (1st Dist.1982).

After exhausting his state remedies, Hancock filed a petition for a writ of habe-as corpus with this Court claiming that: (1) the trial court erred in denying defense counsel’s motion for a mistrial when the jury began deliberations without written instructions; (2) the trial court abused its discretion when it admitted evidence of petitioner’s prior convictions; (3) the trial court abused its discretion when it overruled an objection to certain rebuttal testimony; (4) the State failed to prove petitioner guilty beyond a reasonable doubt; and (5) the trial court denied defendant’s motion to suppress identification testimony and curtailed questioning regarding the reliability of the identification at a pretrial hearing in violation of petitioner’s due process rights. In response, the State (“respondent”) has filed a motion to deny the writ.

After a careful review of the factual determinations of the Illinois Appellate Court and the Cook County Circuit Court, the Court grants respondent’s motion to deny the writ. The Court’s jurisdiction rests upon 28 U.S.C. § 2254.

I. SCOPE OF REVIEW

Regarding the proper scope of review by a federal court in a habeas proceeding, this Court’s analysis in United States ex rel. Banks v. McGinnis, 563 F.Supp. 819 (N.D. Ill.1983), aff'd, 746 F.2d 1482 (7th Cir.1984) (unpublished order), sets forth the proper rule of a federal court. Prom that analysis, it is clear that a federal court on habeas must apply the “presumption of correctness” to state appellate court underlying factual determinations in mixed questions of law and fact, although it may draw different conclusions as to those facts as found. On the other hand, the federal court need not be bound by those underlying factual determinations, if it concludes that they are not “fairly supported by the record.” Sumner v. Mata, 449 U.S. 539, 550, 101 S.Ct. 764, 770, 66 L.Ed.2d 722 (1981); see also Marshall v. Lonberger, 459 U.S. 422, 103 S.Ct. 843, 850, 74 L.Ed.2d 646 (1983). Nor need the federal court apply the presumption if one of the first seven statutory exceptions to 28 U.S.C. § 2254(d) is found to exist or if the petitioner establishes by “convincing evidence” that the state court’s findings are clearly erroneous. 28 U.S.C. § 2254(d).

The. Court agrees with the state appellate court’s underlying factual determinations. Since petitioner has not rebutted these determinations with “convincing evidence” and since none of the statutory exceptions exist, the Court will apply the “presumption of correctness” to these findings and apply the law accordingly.

II. PETITIONER’S CLAIMS

1. Jury Instructions

Petitioner objects because the jury was not immediately provided written copies of the jury instructions when they began deliberation. The following relevant facts were set out by the Illinois Appellate Court and are entitled to the presumption of correctness under 28 U.S.C. § 2254(d).

The trial court read to the jury all of the eleven written instructions. The jury then retired. Counsel for defendant then immediately spoke to the court concerning an objection to rebuttal evidence not previously made. After some colloquy the court overruled this objection. The jurors began their deliberation about 1:30 p.m. About 5 p.m. the jury informed the bailiff they had reached a verdict. It was then realized for the first time that the jury had not been given the written instructions and the verdicts to take with them to the jury room.
Defense counsel objected but the trial court ordered the bailiff to take the instructions and verdicts to the jury. This took place shortly after 5 p.m. About 5:30 there was a verdict and defendant’s counsel moved for a mistrial because the jury had been permitted to deliberate without the written instructions. The court denied this motion. The individual jurors were all polled without incident. Defendant contends this incident constitutes reversible error.
All of the written instructions appear in the record. All of them are taken from IPI____

443 N.E.2d at 231-32, 66 Ill.Dec. at 548-49. The Illinois Appellate Court found that the trial judge acted promptly to rectify the absence of written instructions:

In the instant case, the attention of the trial judge may possibly have been diverted by the colloquy with counsel for defendant concerning a tardy objection to rebuttal evidence. Be that as it may, when the matter was brought to the attention of the trial judge he acted immediately. The instructions were forthwith given to the jury for their information without any further communication to them. No one knows the nature of the jury deliberation or the tentative result reached by them when they asked for the instructions. In fact, we may readily assume that the verdicts were delivered to the jury only with the written instructions.

443 N.E.2d at 232, 66 Ill.Dec. at 549.

On these facts, the Illinois Appellate Court concluded, by a 2-1 majority that, since written instructions were furnished to the jury before they completed deliberation and signed the verdicts, any conceivable error was harmless and therefore Illinois law was not violated. The appellate court noted that no juror raised any point or indicated any problem or lack of knowledge when the jury was polled. 443 N.E.2d at 233, 66 Ill.Dec. at 550. Therefore, the appellate court found no prejudice in the record. Id.

The State argues that the petitioner is not entitled to habeas corpus relief on the grounds of waiver and failure to show a constitutional error. In a habeas corpus action, the state court must have the opportunity to apply constitutional principles and correct any constitutional error committed by the trial court. United States ex rel. Sullivan v. Fairman, 731 F.2d 450 (7th Cir.1984). Therefore, the substance of a federal habeas claim must first be presented to the state courts. Picard v. Connor, 404 U.S. 270, 278, 92 S.Ct. 509, 513, 30 L.Ed.2d 438 (1971). It is not enough that all the facts necessary to support the federal claim were before the state courts, or that a somewhat similar state-law claim was made. Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 277, 74 L.Ed.2d 3 (1982). In other words, the claim must have been presented in such a way as to fairly alert the state court to any applicable constitutional grounds for the claim.

Just as the petitioner’s state court argument in Sullivan, supra, was not presented in such a way as to alert the state court to any constitutional due process ramifications, Hancock’s state court arguments were not presented in such a way as to fairly alert the state court to the constitutional ramifications Hancock now claims exist. Hancock simply argued that the trial court erred in denying his motion for a mistrial. Like Sullivan, Hancock did not present this state court argument in the context of a federal constitutional claim, he never used the term “due process,” and the opinion of the Illinois Appellate Court indicates that it discerned no due process implications.

Even though Hancock’s due process claim arises out of the same factual circumstances as his state court claim, his state court claim presented an entirely separate legal issue. See Wilks v. Israel, 627 F.2d 32, 38 (7th Cir.1980), cert. denied, 449 U.S. 1086, 101 S.Ct. 874, 66 L.Ed.2d 811 (1981). The state court, presented with a claim based upon the absence of written instructions when jury deliberations began, focused on whether these circumstances constituted reversible error. People v. Hancock, 443 N.E.2d at 231, 66 Ill.Dec. at 548. A due process inquiry is not constrained by these state law requirements. Sullivan, supra, 731 F.2d at 454. A due process inquiry in this context asks whether, as a matter of fundamental fairness, the state trial judge erred in denying the petitioner’s motion for a mistrial under the circumstances presented. Id.

While Hancock’s due process claims are based on errors he complained of in state court, the Court holds that under the circumstances of this case Hancock did not effectively alert the state court to the due process ramifications upon which he bases his habeas petition. Therefore, since Hancock has not attempted to meet the cause and prejudice requirements of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), the Court holds that he has forfeited his right to raise his due process claims in federal court regarding the absence of written instructions at the beginning of jury deliberations. Sullivan, supra, 731 F.2d at 455.

Even if the petitioner has not forfeited his due process arguments regarding the absence of written instructions, the Court finds that he failed to show constitutional error. This Court has found no authority for the proposition that failure to give written instructions constitutes constitutional error. The general rule is that the submission of written instructions is within the sound discretion of the court. United States v. Holman, 680 F.2d 1340, 1354 (11th Cir.1982); United States v. Silvern, 484 F.2d 879, 883 (7th Cir.1973) (en banc). In Holman, the Eleventh Circuit Court of Appeals held that, in certain circumstances, the submission of tape recorded versions of jury instructions is proper and does not constitute error. 680 F.2d at 1354. See also United States v. Watson, 669 F.2d 1374 (5th Cir.1982). In Silvern, the Seventh Circuit Court of Appeals suggested that district courts consider whether the need for supplemental instructions may be reduced by sending into the jury room at the time the jury retires either a written copy or a tape recording of the complete instructions as given by the court. 484 F.2d at 883.

In light of Holman and Silvern, and in light of the Illinois Appellate Court’s holding that no reversible error occurred regarding the written instructions, the Court concludes that no constitutional error occurred. This conclusion is bolstered by the state appellate court’s finding that the jurors had sufficient knowledge of the charges and instructions based on the trial court’s oral instructions. Therefore, the late entry of written instructions after the jury deliberations began did not prejudice the petitioner and did not constitute constitutional error or a due process violation.

2. Prior Convictions

Hancock objects to the admission of evidence of his prior conviction for armed robbery and argues that it denied him a fair trial. According to the appellate court:

Defendant moved in limine to exclude evidence of his prior convictions for theft of services in 1977 and for armed robbery in 1973. The trial judge denied the motion and certified copies of these convictions were received.

People v. Hancock, supra, 443 N.E.2d at 229, 66 Ill.Dec. at 547. The appellate court determined that the trial judge acted within his discretion because at trial Hancock took the stand and these crimes related directly to Hancock’s credibility and veracity. Id. at 228, 66 Ill.Dec. at 546 (quoting People v. Ridley, 25 Ill.App.3d 596, 601, 323 N.E.2d 577 (1st Dist.), leave to appeal denied, 58 Ill.2d 598 (1975)).

Trial rules regarding the admissibility of evidence in a state criminal trial are matters of state law. United States ex rel. Searcy v. Greer, 768 F.2d 906, 910 (7th Cir.1985). Violations of state evidentiary laws generally do not form the basis upon which federal habeas corpus relief can be granted. Id. Violations of state evidentiary rules may not be questioned in federal habeas proceedings unless they render the trial so fundamentally unfair as to constitute a denial of federal constitutional rights. Id.; see also Brinlee v. Crisp, 608 F.2d 839, 850 (10th Cir.1979), cert. denied, 444 U.S. 1047,100 S.Ct. 737, 62 L.Ed.2d 733 (1980). In addition to Searcy, supra, the Seventh Circuit Court of Appeals has elsewhere recognized the well-settled principle that “[i]t is not the role of a federal habeas court to correct state-court errors. . . . Unless the claimed error amounted to a fundamental defect so great that it inherently resulted in a complete miscarriage of justice, the conviction should stand.” Cramer v. Fahner, 683 F.2d 1376, 1385 (7th Cir.), cert. denied, 459 U.S. 1016, 103 S.Ct. 376, 74 L.Ed.2d 509 (1982). In Cramer, the Seventh Circuit found that the admission of evidence in the state trial regarding petitioner’s marijuana use, adultery, professional reputation for misconduct, and murder solicitations was not sufficient ground for habeas corpus relief.

In the present case, the Illinois Appellate Court found that the trial court did not abuse its discretion under Illinois law when it admitted Hancock’s prior two convictions with a limiting instruction regarding their impact. While a finding by the state appellate court that no error occurred is not dispositive of the “fundamentally unfair” analysis, it is a strong factor mitigating against a finding that the state trial court’s evidentiary ruling rendered the petitioner’s trial fundamentally unfair. United States ex rel. Searcy v. Greer, supra, 768 F.2d at 910; see also Corpus v. Estelle, 571 F.2d 1378 (5th Cir.), rehearing denied, 575 F.2d 881, cert. denied, 439 U.S. 957, 99 S.Ct. 359, 58 L.Ed.2d 350 (1978). Another factor in support of the fairness of petitioner’s trial is the overwhelming evidence supporting the jury verdict of guilty. People v. Hancock, supra, 443 N.E.2d at 231, 66 Ill.Dec. at 549. In light of these factors, the Court holds that the admission of Hancock’s prior convictions was proper under the state evidentiary rules and did not render his trial fundamentally unfair.

3. Rebuttal Evidence

Hancock claims that certain rebuttal testimony denied him a fair trial. The appellate court made these findings of fact:

On cross-examination of the defendant, the State inquired: “Were you ever on the phone with Mrs. Mellis [Linda Mellis] that morning of the 27th?” The defendant answered, “No, I wasn’t.” The State then inquired as to whether defendant had told an assistant State’s Attorney and an investigator he had received a telephone call from Linda Mellis; and whether that call took approximately 1 hour and 15 minutes. The defendant categorically denied both of these statements.
On rebuttal, the State called assistant State’s Attorney Quinn. He testified he interviewed the defendant shortly after arrest. Defendant told him he had received a telephone call about 10:45 a.m. on the day in question. Defendant was at his mother’s home. The caller was Linda Mellis, a psychiatric social worker at a hospital. She and defendant spoke about the defendant’s wife. This conversation lasted 1 hour and 15 minutes. The State also called Linda Mellis in rebuttal. She testified she did not speak to the defendant on the date in question, June 27, 1978. The witness specifically recalled on that particular day she and her husband had doctor’s appointments at 10 a.m.
Defendant made no objection to the rebuttal testimony given by either of these witnesses at the time they testified. After final arguments had been completed and after the jury retired, counsel for defendant for the first time told the court he wished to object to the testimony of Linda Mellis on the ground that it was not proper rebuttal. The trial court overruled this objection and stated that the rebuttal was properly admissible.

443 N.E.2d at 228-29, 66 Ill.Dec. at 546-47. The appellate court rejected Hancock’s objection to the rebuttal testimony on two grounds. First, it held that Hancock waived his objection because it was untimely. Second, it concluded that the testimony was properly admissible within the trial court’s discretion. 443 N.E.2d at 229, 66 Ill.Dec. at 547.

The general rule in Illinois is that an objection to the introduction of evidence must be made at the time of admission or it will be waived. People v. Baynes, 88 Ill.2d 225, 230, 58 Ill.Dec. 819, 430 N.E.2d 1070 (1981). In the present case, the appellate court found that the petitioner made no objection to the rebuttal testimony at the time the witnesses testified. People v. Hancock, supra, 443 N.E.2d at 229, 66 Ill.Dec. at 547. Defense counsel’s objection came after final arguments were completed and the jury had retired. Id. Applying the presumption of correctness to the appellate court’s findings, the Court finds no grounds on which to disturb the state court’s finding of waiver as to the rebuttal testimony.

In addition, the Court holds that the petitioner has failed to meet his burden of showing that, if admission of the rebuttal testimony was error, his trial was thereby rendered fundamentally unfair. Following the analysis applied in the previous section on admission of petitioner’s prior convictions, the Court finds support for its holding here in the appellate court’s holding that the rebuttal testimony was properly admitted. Finally, the overwhelming weight of evidence supporting the jury verdict of guilty suggests that any prejudice to the petitioner caused by admission of the rebuttal testimony did not render his trial fundamentally unfair.

4. Guilt Beyond A Reasonable Doubt

Hancock argues that the State failed to prove him guilty beyond a reasonable doubt because the testimony of his cousin Geraldine Gilliam and his family member Ernestine Gilliam is adequate to overcome the massive and convincing evidence supplied by the eye witnesses. The appellate court made the following findings of fact:

We find from this record that defendant himself was thoroughly discredited____ Insofar as the witness Geraldine Gilliam testified her telephone line at home was busy about that time for close to two hours; her testimony is simply irrelevant to any alibi. As for Ernestine Gilliam, she testified defendant told her he was coming to paint and install some burglary bars. Defendant testified the work had not been done and he agreed to do it on a later date. It seems clear that the attempted alibi was weak and thoroughly overcome by the overwhelming identification testimony. The issues raised by defendant do not affect the positive identifications but simply raise an issue of credibility for the jury to decide.

443 N.E.2d at 231, 66 Ill.Dec. at 549. The appellate court concluded that “the verdict of the jury is most strongly supported by the evidence beyond reasonable doubt to the point of being overwhelming.” Id.

The standard to be applied by a federal court on habeas review in assessing the sufficiency of the evidence supporting a state court conviction was set forth by the Supreme Court in Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 2791, 61 L.Ed.2d 560 (1979):

The scope of habeas review being limited, the Court must not attempt to fully reevaluate guilt but instead must only determine if a rational fact finder could have found guilt beyond a reasonable doubt. Finally, 28 U.S.C. § 2254(d) “gives federal habeas courts no license to redetermine credibility of witnesses whose demeanor has been observed by the state trial court, but not by them.” Marshall v. Lonberger, supra, 103 S.Ct. at 851.

The applicant is entitled to habeas relief if it is found that upon the record evidence adduced at trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.

In this case, the trial court and appellate court both concluded upon the evidence adduced at trial that petitioner was proved guilty beyond a reasonable doubt. This finding is fairly supported by the record. Therefore, the Court believes it must be upheld.

5. Identification

Hancock objects to the photographic and lineup identifications as suggestive and untrustworthy. He concludes that the trial court’s denial of his motion to suppress identification testimony constitutes reversible error. Hancock’s motion to suppress identification testimony sets forth the following grounds: identification witnesses did not have an adequate opportunity to view the person who robbed them; after the robbery the individuals gave descriptions of the offender which substantially differed from the petitioner’s description; identification was made by photographs containing no other persons who resembled the petitioner; the photographic identifications were made by the witnesses in the presence of each other; and in the lineup petitioner was identified by two people who were in the presence of each other so that the identification evidence should be suppressed.

Taking the first two grounds together, the reliability of an identification is determined under Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). See also United States ex rel. Hudson v. Brierton, 699 F.2d 917 (7th Cir.1983), cert. denied, 464 U.S. 833, 104 S.Ct. 114, 78 L.Ed.2d 115. The relevant factors in evaluating reliability are: the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and confrontation. Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972); accord Manson v. Brathwaite, supra, 432 U.S. at 114, 97 S.Ct. at 2253. In United States v. Wisniewski, 741 F.2d 138 (7th Cir.1984), the Seventh Circuit Court of Appeals found adequate opportunity to view the criminal when the witness observed the defendant face-to-face for ten to fifteen seconds. Id. at 144.

In the present case, it is clear that several, if not all six, of the witnesses had adequate opportunity to view Hancock at the time of the crime. The appellate court made the following findings of fact:

The evidence shows clearly that the tavern in question was well lighted. The front and rear doors, and a window were all open. The holdup took place about 11:30 a.m. There is no evidence to the contrary. It is also agreed and verified that the incident lasted from 3 to 5 minutes. The defendant spoke to Rose Carter. At various times all of the persons in the tavern were very close to the defendant. Two witnesses testified the defendant urged them to ‘take a good look’ at him. Beyond any reasonable doubt there was ample and adequate opportunity for each and all of the identification witnesses to see and observe the defendant fully.

443 N.E.2d at 229-30, 66 Ill.Dec. at 547-48. In light of Wisniewski and the state appellate court findings, the Court will not disturb the reliability of the identifications on the first two grounds. See also United States v. Davies, 768 F.2d 893, 903 (7th Cir.1985) (identification upheld as reliable even though witness told police officers on the evening of the theft that the defendant was approximately 5'10" whereas he was 5'3").

The third and fourth grounds address the suggestiveness of the photographic identification. The test is whether the photographic identification sessions were so “impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification,” thus violating the petitioner’s right to due process under Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). See also United States v. Anderson, 7l4 F.2d 684 (7th Cir.1983). With respect to an assessment of possible misidentification, the Court in Simmons offered several indicia of trustworthiness of such a photographic session, including the well-lighted setting of the robbery, the maskless state of the robber, the opportunity of the witnesses to observe the robbery for several minutes, the witnesses’ isolation in viewing the photographs, the lack of evidence that witnesses were told anything about the progress of the investigation or were told that any particular subject displayed was under suspicion, the fact that all the witnesses unequivocally identified the defendant and, notwithstanding cross-examination, unhesitatingly re-identified the defendant at trial. Simmons, supra, 390 U.S. at 385-86, 88 S.Ct. at 971-72; Anderson, supra, 714 F.2d at 687.

In the present case, the Court has already upheld the appellate court’s finding that the tavern was well lighted, 443 N.E.2d at 229, 66 Ill.Dec. at 547, and the record contains no reference to any mask or other object covering the petitioner’s face. In addition, there is no evidence in the record that either Rose Carter or Theodore Peters were told anything about a suspect or the progress of the investigation. There is also no evidence that the witnesses were in each other’s presence at the photographic identifications. On the contrary, Rose Carter testified that she was alone when the police officer showed her the album of photographs. 443 N.E.2d at 230, 66 Ill.Dec. at 548. Finally, in-court identification by six credible witnesses would seem to eliminate any risk of mis-identification. Id. In light of these findings by the state appellate court and supported on the record, the Court finds that the petitioner has failed to meet his burden of showing a very substantial likelihood of irreparable misrepresentation due to the photographic identifications under the factors set forth in Simmons.

The fifth and final ground attacks the reliability of the lineup identification made by two witnesses, Peters and Thomas Wright. Applying the same factors set forth in Simmons, it is clear that factors concerning the adequate opportunity to observe the petitioner and his uncovered face are the same here and do not make the lineup identification unreliable. Regarding the witnesses’ isolation in viewing the lineup, Peters and Wright testified that they were put in a closed room together before the lineup but did not speak to each other. 443 N.E.2d at 230, 66 Ill.Dec. at 548. In addition, they were not together when they viewed the lineup. Id. In light of these findings by the state appellate court and the remaining factors in Simmons being satisfied, the Court holds that the petitioner has failed to meet his burden of showing a substantial likelihood of irreparable misidentification due to the lineup identifications.

III. CONCLUSION

For the reasons stated above, respondent’s motion to deny the writ is granted.

IT IS SO ORDERED.


author: WILLIAM C. CONNER, District Judge:

text:
    Hyman RAFFE, individually and on behalf of Puccini Clothes, Ltd., Plaintiff, v. “JOHN DOE,” true name unknown to plaintiff but person or persons intended to be those who published and/or distributed certain material on or about July 26, 1984; Hon. Donald Diamond; Hon. Xavier C. Riccobono; Hon. Michael J. Dontzin; Hon. Thomas V. Sinclair, Jr.; Hon. Robert Abrams; David S. Cook; Citibank, N.A., and Jerome H. Barr, individually, and as executors of the Estate of Milton Kaufman; Kreindler & Relkin, P.C.; Lee Feltman; Feltman, Karesh & Major; Arutt, Nachamie, Benjamin, Lipkin & Kirschner, P.C., Defendants.
    No. 84 Civ. 6272 (WCC).
    United States District Court, S.D. New York.
    Oct. 11, 1985.

      Robert Abrams, Atty. Gen, of N.Y., New York City, for defendants Donald Diamond, Xavier C. Riccobono, Michael J. Dontzin, Thomas V. Sinclair, Jr., Robert Abrams, and David S. Cook; Jeffrey I. Slonim, Howard L. Zwickel, Asst. Attys. Gen., of counsel.
    Kreindler & Relkin, P.C., New York City, defendants pro se and for defendants Citibank, N.A. and Jerome H. Barr; Michael J. Gerstein, Edward Weissman, of counsel.
    George Sassower, Brooklyn, N.Y., for plaintiff.
    Feltman, Karesh & Major, New York City, defendants pro se and for defendant Lee Feltman; Donald F. Schneider, of counsel.
    D’Amato & Lynch, New York City, for defendant Arutt, Nachamie, Benjamin, Lip-kin & Kirschner, P.C.; Robert E. Meschel, Timothy P. Butler, of counsel.
   OPINION AND ORDER

WILLIAM C. CONNER, District Judge:

Plaintiff Hyman Raffe (“Raffe”) is a shareholder of Puccini Clothes, Ltd. (“Puccini”), a New York corporation dissolved and placed in receivership by the New York Supreme Court. Raffe brought this action under 42 U.S.C. § 1983 (1982) alleging that various participants in the corporate dissolution and receivership proceedings in that court have violated and continue to violate his civil rights. He has named as defendants in this suit Lee Feltman, Esq. (“Felt-man”), the court-appointed receiver for Puccini; Feltman, Karesh & Major (“the Feltman firm”), counsel to the receiver; Citibank, N.A. and Jerome H. Barr, executors of the estate of Milton Kaufman, a Puccini shareholder; Kreindler & Relkin, P.C., attorneys for the executors; Arutt, Nachamie, Benjamin, Lipkin & Kirschner, P.C. (“the Arutt firm”), attorneys for Eugene Dann and Robert Sorrentino, also Puccini shareholders; two justices, an administrative law judge, and a referee of the New York Supreme Court who have, at one time or another, presided over the dissolution and receivership proceedings; Robert Abrams, Esq., the Attorney General of the State of New York, and David Cook, Esq., an Assistant Attorney General, who have represented these judges in prior actions brought by Raffe; and one allegedly unknown person referred to as “John Doe.”

As best I can discern from the rambling, and at times incomprehensible, 73-page complaint, Raffe contends that Feltman, the Feltman firm, the executors of the estate of Milton Kaufman, the attorneys for the executors, and the Arutt firm, conspired to and did take “possession and control of Puccini, its assets and affairs, and began to dissipate its assets and affairs as suited their individual and joint private purposes.” Complaint ¶ 21. Raffe further contends that this conspiracy was successful only with the cooperation or inaction of the various judges who oversaw the dissolution as well as the Attorney General and his staff.

Raffe seeks damages and wide-ranging injunctive relief, including an order nullifying all state court proceedings since June 4, 1980 with respect to Puccini, or in the alternative, an order (1) enjoining the defendant judges from “interferpng] with the judicial process”; (2) declaring “null and void” the appointments of the court-appointed attorneys and accountants for the receiver; (3) prohibiting the receiver and the attorneys for the Puccini shareholders “from taking positions in the judicial forum contrary to the legitimate interests of their clients, former client, and/or trust”; (4) “prohibiting conduct which interferes with plaintiff's absolute right to access to the court and/or the appropriate jurist”; (5) declaring “null and void” all proceedings before the referee of the Supreme Court appointed to oversee the dissolution proceedings; (6) nullifying the Supreme Court’s disqualification of George Sassower, Esq. (“Sassower”) as plaintiff’s attorney in all state court actions related to the dissolution of Puccini Clothes; (7) prohibiting Attorney General Abrams and Assistant Attorney General Cook from “representing conflicting interests”; and (8) awarding attorney’s fees to plaintiff. Complaint H 3.

This matter is now before the Court on a variety of motions. The defendant judges, Attorney General Abrams, and Assistant Attorney General Cook, collectively referred to below as the “state defendants,” have moved for (1) an order pursuant to Rule 12(b)(6), Fed.R.Civ.P., dismissing the complaint on the ground that the action against them is barred under the doctrines of res judicata and collateral estoppel by Judge Nickerson’s recent' decision in Raffe v. Citibank, N.A., No. 84 Civ. 305 (E.D. N.Y. Aug. 1, 1984); (2) an order pursuant to Rule 12(b)(1), Fed.R.Civ.P., dismissing the complaint against them on the ground that the Court lacks subject matter jurisdiction over this matter; (3) an order pursuant to Rule 12(b)(6) dismissing the complaint on the ground that it fails to state a claim upon which relief can be granted; and (4) an order pursuant to 42 U.S.C. § 1988 assessing against Raffe and his attorney, George Sassower, the reasonable attorney’s fees incurred by the state defendants in defending this action.

Feltman, the Feltman firm, the executors of the estate of Milton Kaufman, the attorneys for the executors, and the Arutt firm, collectively referred to below as the “private party defendants,” have moved for (1) an order pursuant to Rule 56, Fed.R.Civ.P., granting summary judgment in their favor on the ground that the action against them also is barred under the doctrines of res judicata and collateral estoppel by Judge Nickerson’s recent decision in Raffe v. Citibank, N.A. and previous state court decisions; (2) in the alternative, an order pursuant to Rule 12(b)(6), Fed.R.Civ.P., dismissing the complaint against them on the ground that it fails to state a claim upon which relief can be granted; (3) an order pursuant to 28 U.S.C. § 1651 (1982) permanently enjoining Raffe and Sassower from commencing further actions in any federal court arising out of or related to the Puccini dissolution or receivership; and (4) an order pursuant to 42 U.S.C. § 1988 and Rules 11 and 56, Fed.R.Civ.P., assessing against Raffe and Sassower the reasonable attorney’s fees incurred by these defendants in defending this action.

In response to these motions, Raffe has submitted only Sassower’s affidavit reiterating the vague and conclusory allegations of the complaint. Raffe has also twice cross-moved for summary judgment on conclusory allegations, unsupported by the materials called for by Rule 56(e), Fed. R.Civ.P. For the reasons stated below, defendants’ motions are granted and plaintiff’s motions are denied.

Background

As Judge Nickerson noted in his opinion in Raffe v. Citibank, N.A., 84 Civ. 305 (E.D.N.Y. Aug. 1, 1984), the parties to this action come to the federal courts with an “already long and tortured history of litigation in the New York State courts.” Id., slip op. at 3. Judge Nickerson reviewed the many lawsuits between these parties in his opinion, and I refer those unfamiliar with this matter to his decision for more of the unpleasant details of this saga. Except for the facts set forth below, I have attempted to avoid repeating his discussion here.

At one time, Raffe, Milton Kaufman (“Kaufman”), Eugene Dann (“Dann”), and Robert Sorrentino (“Sorrentino”) were each 25% shareholders in Puccini Clothes, Ltd. Kaufman, who was president and a director of the corporation, died in 1979. After Kaufman’s death, the remaining shareholders failed to call a meeting to elect a successor director, a violation of the shareholders’ agreement. In addition, they failed to implement a provision in the shareholders’ agreement for the disposition of Kaufman’s shares. Finally, the shareholders, allegedly led by Raffe and Sassower, refused to allow Puccini to pay obligations that Kaufman had guaranteed. As a result, Kaufman’s estate was diminished.

In 1980, the executors of Kaufman’s estate petitioned the New York Supreme Court for Puccini’s dissolution pursuant to New York Business Corporation Law § 1104 on the ground that the shareholders had failed to comply with the shareholders’ agreement. The court granted the dissolution on June 4, 1980, and appointed John V. Lindsay (“Lindsay”) as receiver. Raffe appealed the court’s order; it was unanimously affirmed by the Appellate Division, First Department.

Both before and after the dissolution proceedings, the executors of Kaufman’s estate brought actions in the state courts against Raffe and the other shareholders to recover those amounts that Kaufman's estate had paid on Puccini’s obligations. The estate won judgments against Raffe for more than $350,000, and Raffe in turn obtained awards against the other shareholders and against the corporation itself. Raffe also brought an action in New York Supreme Court against the executors of Kaufman's estate alleging that they had damaged Puccini by their actions. The court dismissed the suit; the Appellate Division, First Department unanimously affirmed.

In January 1981, Lindsay declined his appointment as Puccini’s receiver, and Raffe moved the Supreme Court to have himself made receiver. In February 1981, the court denied Raffe’s motion, and appointed defendant Lee Feltman. At the same time, the court disqualified Sassower from representing Raffe in all related state court proceedings due to a conflict of interest caused by his previous representation of Dann and Sorrentino. Sassower has apparently continued to represent Raffe in state court despite that order, and as a result, both Raffe and Sassower were recently held in contempt of court. See Affidavit of Donald F. Schneider, Esq. in Support of Defendants’ Motion for Summary Judgment 1Í 6.

Raffe and Sassower evidently were not discouraged by their defeats, and renewed their efforts to undo the dissolution and receivership proceedings. Feltman has averred, and plaintiff has not denied, that in the period since Feltman was appointed receiver, Raffe and Sassower have made more than 100 motions in the state courts in connection with the Puccini litigation. Raffe has, for example: (a) sought on nine separate occasions to remove Feltman as receiver; (b) sought on several occasions to have the Feltman firm disqualified and/or discharged as attorneys for the receiver or to deny the firm compensation for the legal services it has rendered; (c) sought on numerous occasions to have the lawyers and co-executor of the estate of Milton Kaufman disqualified; and (d) sought on several occasions to have various justices who ruled adversely to plaintiff recuse themselves or be disqualified. Affidavit of Lee Feltman, Esq. in Support of Defendants’ Motion for Summary Judgment 11 6. The state courts have consistently denied these motions, and at least twice have imposed on Raffe extraordinary costs and attorney’s fees. Id. & n. *; id. Exhs. F, G.

Unsuccessful in these efforts, Raffe and Sassower apparently thought it fruitful to commence more lawsuits. First, they brought suit in New York Supreme Court against the Feltman firm and the Arutt firm alleging that they acted improperly in representing the receiver and Dann and Sorrentino, respectively. The Supreme Court granted the Feltman firm’s motion to dismiss the complaint, and the Appellate Division, First Department affirmed. The court reserved decision on the Arutt firm’s motion to dismiss pending a determination of whether the complaint had been timely served.

Perhaps hoping they would obtain better results in a different forum, Raffe and Sassower turned their litigative energies to the federal courts, and filed an action in the United States District Court for the Eastern District of New York. In that case, Raffe v. Citibank, N.A., No. 84 Civ. 305 (E.D.N.Y. Aug. 1, 1984), Raffe sued all of the participants in the dissolution and receivership proceedings, including nearly all of the defendants named in this case, contending, as he has here, that they “performed acts and/or conspired to take control of Puccini and ‘dissipate its assets and affairs as suited their individual and joint private purposes,’ and to conceal these alleged unlawful activities by having deceptive financial reports prepared, so as to deprive him of his constitutional rights.” Id., slip op. at 7. Raffe sought $50,000 in compensatory and punitive damages, the removal of Feltman as receiver of Puccini Clothes, and the removal of the pending state court actions to “a constitutional and appropriate forum meeting federal standards.” Id., slip op. at 2.

Judge Nickerson issued an opinion dismissing Raffe’s complaint on August 1, 1984. He held that the action against the state court judges and the Attorney General was barred by the Eleventh Amendment and the doctrine of judicial immunity, and ruled that “[i]n the absence of a viable federal issue,” Raffe’s request that the state court proceedings be removed to federal court had to be denied. Id., slip op. at 10.

In addition, Judge Nickerson held that the action against the private party defendants was barred by the doctrines of res judicata and collateral estoppel. Judge Nickerson stated that Raffe’s “allegations here are basically indistinguishable from those presented in state court in his unsuccessful efforts to remove Feltman as receiver and compel the other defendants to account for Puccini’s assets.” Id., slip op. at 15. Judge Nickerson concluded that in view of his “duplicative motions and appeals” in the state courts, Raffe had already enjoyed “a full and fair opportunity to litigate his position,” and could not reliti-gate his claims in federal court. Id., slip op. at 14-16.

Finally, Judge Nickerson granted both the state and private party defendants’ motions for attorney’s fees, imposing liability for those fees equally on Raffe and Sas-sower. He stated that Sassower “knew, or should have known, that plaintiff would be precluded from litigating his claims in this court,” that Sassower had framed the complaint in conclusory terms and had failed to substantiate those conclusions, and that Sassower had conducted the litigation in a “vexatious” manner. Id., slip op. at 18. The Court of Appeals for the Second Circuit affirmed Judge Nickerson’s decision without opinion on January 23, 1985.

Less than one month after Judge Nicker-son dismissed Raffe’s complaint in the Eastern District, Raffe and Sassower filed the instant ease in the Southern District. The Court held a pre-motion conference and gave all of the defendants leave to file motions to dismiss or for summary judgment as well as leave to file motions for a permanent injunction. Shortly thereafter, Raffe and Sassower filed new actions in the state courts.

Faced with these additional state court actions, the defendants moved the Supreme Court, Special Term for a permanent injunction enjoining Raffe and Sassower from filing any more suits in the state courts. On January 23, 1985, Special Term granted the motion, and entered a broad injunction enjoining Raffe, Sassower, and any other persons acting in concert with them, from bringing any new actions in the state courts arising out of or related to the Puccini dissolution or receivership. See Attachment to Letter of Donald F. Schneider, Esq. dated January 24, 1985. Unfazed, Raffe, Sassower, and a new actor in the drama, Sam Polur, Esq. (“Polur”) filed at least ten actions in New York Supreme Court related to the Puccini dissolution. Supplemental Affidavit of Donald F. Schneider, Esq. dated May 31, 1985, H 4. For this, Special Term subsequently found Sassower guilty of criminal contempt of court. Id. ¶ 3; id. Exh. B.

While that activity was going on in the state courts, Raffe, Sassower, and Polur commenced three more actions in this Court, all of which were referred to me as related to this case. I stayed the prosecution of those suits pending resolution of the instant motions.

Discussion

A. Res Judicata and Collateral Estoppel

I turn first to the defendants’ motions to dismiss the complaint and for summary-judgment on the ground that this action is barred under the doctrines of res judicata and collateral estoppel by Judge Nicker-son’s decision in Raffe v. Citibank, N.A. These doctrines generally prohibit a party from relitigating claims or issues that were resolved in prior lawsuits. They are “founded upon the generally recognized public policy that there must be some end to litigation and that when one appears in court to present his case, is fully heard, and the contested issue is decided against him, he may not later renew the litigation in another court.” Heiser v. Woodruff, 327 U.S. 726, 733, 66 S.Ct. 853, 856, 90 L.Ed. 970 (1946). In short, these doctrines “reflect[] the refusal of law to tolerate needless litigation.” Angel v. Bullington, 330 U.S. 183, 192-93, 67 S.Ct. 657, 662-63, 91 L.Ed. 832 (1947).

The Supreme Court has removed any doubt that the doctrines of res judicata and collateral estoppel apply to actions brought under § 1983. Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75, 104 S.Ct. 892, 896, 79 L.Ed.2d 56 (1984); Allen v. McCurry, 449 U.S. 90, 96-97, 101 S.Ct. 411, 415-16, 66 L.Ed.2d 308 (1980). In Migra, the Court held that the preclusive effect of a state court judgment is measured by reference to state law; however, it is widely recognized that the determination of the scope of a federal court judgment is governed by federal law. 18 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure: Jurisdiction § 4466, at 617-18 (1981). Accordingly, I look to the principles. of res judicata and collateral estoppel as applied in the federal courts to determine the preclusive effect of Judge Nickerson’s decision.

The Supreme Court has issued numerous decisions in recent years articulating the fundamental principles of these two doctrines. The Court has stated that under the doctrine of res judicata, also known as claim preclusion, “[a] final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.” Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 398, 101 S.Ct. 2424, 2428-29, 69 L.Ed.2d 103 (1981); Allen, 449 U.S. at 94. In other words, “the parties to the suit ... are thereafter bound ‘not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose.’ ” Commissioner v. Sunnen, 333 U.S. 591, 597, 68 S.Ct. 715, 719, 92 L.Ed. 898 (1948) (quoting Cromwell v. County of Sac, 4 Otto 351, 352, 94 U.S. 351, 352, 24 L.Ed. 195 (1877)). The Court has stated that under the related doctrine of collateral estoppel, or issue preclusion, a party is barred from relitigating “issues that were actually litigated and necessary to the outcome of the first action.” Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n. 5, 99 S.Ct. 645, 649 n. 5, 58 L.Ed.2d 552 n. 5 (1979); see also Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210 (1979).

I have reviewed the complaint in this case and have compared it to the complaint filed in Raffe v. Citibank, N.A. On the basis of that review, I think it plain that the instant action is barred by the principles of res judicata and collateral estoppel set out above. The complaint in this action does no more than rehash the allegations put before Judge Nickerson. It is clear that Raffe and Sassower have merely attempted to revive issues that Judge Nickerson expressly held were without merit or barred by prior decisions in the state courts.

Notwithstanding this obvious conclusion, Raffe and Sassower argue that the complaint in this case substantially differs from that before Judge Nickerson because it alleges five “subsequently arising or discovered facts.” Affirmation of George Sassower, Esq. in Opposition to Defendants’ Motions at 6-7. However, the defendants have shown in careful detail that each one of these “facts” was fully litigated before Judge Nickerson and rejected. See Reply Affidavit of Michael J. Gerstein, Esq. dated December 10, 1984, ¶¶ 3-14 [hereinafter cited as “Gerstein Reply Aff.”]; Reply and Supplemental Affidavit of Donald F. Schneider, Esq. dated December 10, 1984, ¶¶3-15. Indeed, Raffe and Sassower argued in a brief to the Court of Appeals for the Second Circuit that Judge Nickerson’s decision should be reversed precisely because Judge Nickerson had considered at least some of these “facts” in reaching his decision. See Gerstein Reply Aff., Exh. E at 5, 14, 42-44. Thus, it is painfully clear that this suit is essentially the same as Raffe v. Citibank, N.A., and there can be no doubt that it is barred under the doctrines of res judicata and collateral estoppel. Accordingly, defendants’ motions to dismiss and for summary judgment are granted. This result renders moot Raffe’s motions for summary judgment, and they are denied.

In addition, I have reviewed the complaints in the three related actions pending before the Court. For the most part, these too merely restate the complaint that was before Judge Nickerson. However, these complaints also allege certain improprieties by state court judges in connection with the Puccini proceedings after the date of Judge Nickerson’s decision in Raffe v. Citibank, N.A. Since these alleged misdeeds occurred after Judge Nickerson’s decision, they were not and could not have been litigated in that action. However, all of these alleged improprieties apparently could have been, and perhaps still can be, reviewed by appeal in the state courts. In view of the apparent availability of direct review in the state courts, it would be wholly inappropriate for this Court to consider them here. Accordingly, the Court on its own motion hereby dismisses the complaints in Puccini Clothes, Ltd. v. Murphy, No. 85 Civ. 3712 (WCC) (S.D.N.Y. filed May 16, 1985), Raffe v. Riccobono, No. 85 Civ. 3927 (WCC) (S.D.N.Y. filed May 23, 1985), and Raffe v. Relkin, No. 85 Civ. 4158 (WCC) (S.D.N.Y. filed June 3, 1985).

B. Attorney’s Fees

I next turn to the defendants’ motions for attorney’s fees. The Supreme Court has held that a prevailing defendant in a civil rights action may recover costs and fees if the plaintiff’s action was unreasonable, frivolous, meritless or vexatious. Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 420, 98 S.Ct. 694, 699-700, 54 L.Ed.2d 648 (1978); see also Carrion v. Yeshiva Univ., 535 F.2d 722, 727 (2d Cir. 1976). The Court has indicated that such fees may be awarded “to protect defendants from burdensome litigation having no legal or factual basis.” Id.; see also Gerena-Valentin v. Koch, 554 F.Supp. 1017, 1021 (S.D.N.Y.1983), aff'd, 739 F.2d 755 (2d Cir.1984).

From the discussion above, it is overwhelmingly clear that this suit is entirely without merit and that it has no basis in law or fact. Moreover, in view of Judge Nickerson’s recent decision, to say nothing of the five-year history of duplicative state court proceedings, it is inconceivable that Raffe and Sassower had any legitimate purpose in instituting this action. Their only apparent aim was to harass the defendants in some desperate hope that they will eventually tire of defending lawsuits and surrender Puccini and its assets. This is nothing more than blackmail by litigation, and the Court will not tolerate it.

For these reasons, the defendants’ motions for attorney’s fees are granted. Raffe and Sassower are to share equally the burden of paying the attorney’s fees incurred in defending this action, and are held jointly and severally liable for that amount. The defendants are directed to submit affidavits detailing the hours spent, fees sought, and costs incurred in defending this suit.

C. Injunctive Relief

Finally, I turn to the private party defendants’ motion for a permanent injunction enjoining Raffe and Sassower from commencing any further actions in federal court arising out of or related to the Puccini dissolution and receivership. It is well-settled that a federal court has the power to issue such relief; indeed, a court has an obligation to do so when necessary to protect the public and the efficient administration of justice from vexatious litigants. In re Martin-Trigona, 737 F.2d 1254, 1262 (2d Cir.1984).

The Court of Appeals for the Second Circuit has held that “the traditional standards for injunctive relief, i.e. irreparable injury and inadequate remedy at law, do not apply to the issuance of an injunction against a vexatious litigant.” Id. Instead, “[a] history of litigation entailing ‘vexation, harassment and needless expense to [other parties]’ and ‘an unnecessary burden on the courts and their supporting personnel’ is enough.” Id. (quoting In re Hartford Textile Corp., 681 F.2d 895, 897 (2d Cir.1982), cert. denied, 459 U.S. 1206, 103 S.Ct. 1195, 75 L.Ed.2d 439 (1983)).

Of course, barring a litigant from the courthouse is a serious matter, “for ‘access to the Courts is one of the cherished freedoms of our system of government.’ ” Kane v. City of New York, 468 F.Supp. 586, 590 (S.D.N.Y.), aff'd mem., 614 F.2d 1288 (2d Cir.1979) (quoting Ex parte Tyler, 70 F.R.D. 456, 457 (E.D.Mo. 1976)). However, on the record before me, I am convinced that any measure short of an injunction will be ineffective in preventing Raffe and Sassower from using the federal courts as vehicles for harassment. It is clear that Judge Nickerson’s imposition of attorney’s fees in dismissing the suit in the Eastern District did not sufficiently impress upon Raffe and Sassower the inappropriateness of their behavior. Moreover, now that the Supreme Court, Special Term has enjoined Raffe and Sassower from commencing any suits in the state courts, the federal courts will undoubtedly become their forum of choice. Accordingly, the private party defendants' motion is granted, and it is hereby

ORDERED, that Hyman Raffe, George Sassower, Esq., and all those acting in concert or cooperation with either of them, are permanently enjoined and restrained from filing or serving, or attempting to intervene in or initiate any action or proceeding in any federal court or tribunal against:

(a) Lee Feltman, individually or as Receiver for Puccini Clothes, Ltd., or

(b) Feltman, Karesh & Major, or

(c) Citibank,. N.A. and Jerome H. Barr, individually or as executors of the Estate of Milton Kaufman, or

(d) Kreindler & Relkin, P.C., or

(e) Arutt, Nachamie, Benjamin, Lipkin & Kirschner, P.C., or

(f) any representative, member, employee, associate, or affiliate of any of the above parties,

the subject matter of which arises out of or relates to:

(1) the actions or conduct of Puccini Clothes, Ltd., or its shareholders, officers, directors, or employees, or

(2) the judicial dissolution or the receivership of Puccini Clothes, Ltd., or

(3) the conduct of the Receiver for Puccini Clothes, Ltd., or the representation of the Receiver by Feltman, Karesh & Major, or

(4) the litigations related to or arising out of any of the matters set forth in subparagraphs (1) through (3) herein, including, but not limited to any litigation arising out of or relating to the right of the Estate of Milton Kaufman to enforce any aspect of the guarantees executed by Hy-man Raffe, or

(5) the acts of any litigant or the attorneys for any litigant in connection with any of the foregoing; it is further

ORDERED, that nothing in this Order shall be construed to deny Hyman Raffe, George Sassower, Esq., or Sam Polur, Esq. the right to seek direct review of this Opinion and Order in the United States Court of Appeals for the Second Circuit and the United States Supreme Court.

Conclusion

For all of the reasons set forth above, the state defendants’ motion to dismiss the complaint and the private party defendants’ motion for summary judgment are granted, and the Clerk of the Court is directed to dismiss the complaint in this action. In addition, the Clerk is directed to dismiss the complaints in Puccini Clothes, Ltd. v. Murphy, No. 85 Civ. 3712 (WCC) (S.D.N.Y. filed May 16, 1985), Raffe v. Riccobono, No. 85 Civ. 3927 (WCC) (S.D.N.Y. filed May 23, 1985), and Raffe v. Relkin, No. 85 Civ. 4158 (WCC) (S.D.N.Y. filed June 3, 1985).

All of the defendants’ motions for attorney’s fees are granted, and the defendants are directed to submit affidavits detailing the hours spent, fees sought, and costs incurred in defending this action. Finally, the private party defendants’ motion for a permanent injunction is granted as set out above.

SO ORDERED.

      . These related actions are: Puccini Clothes, Ltd. v. Murphy, No. 85 Civ. 3712 (WCC) (S.D.N.Y. filed May 16, 1985); Raffe v. Riccobono, No. 85 Civ. 3927 (WCC) (S.D.N.Y. filed May 23, 1985); Raffe v. Relkin, No. 85 Civ. 4158 (WCC) (S.D. N.Y. filed June 3, 1985). Sam Polur joined Raffe and Sassower as a plaintiff only in the last two cases listed.

        . There is no evidence before the Court to determine whether Polur played any role in this lawsuit, and accordingly I do not impose the burden of defendants’ attorney’s fees on him.