Martinez v. Winner

• Citation: 771 F.2d 424
• Decision Date: 22 August 1985
• Docket Number: No. 82-2110,82-2110
• Parties: Francisco Eugenio MARTINEZ, Plaintiff-Appellant, v. Fred M. WINNER, Chief Judge of the United States District Court for the District of Colorado, individually and in his official capacity; Joseph M. Dolan, United States Attorney for the District of Colorado, individually and in his official capacity; Susan Roberts, Assistant United States Attorney, individually and in her official capacity; John R. Barksdale, Assistant United States Attorney, individually and in his official capacity; Dan Christopher, Assistant United States Attorney, individually and in his official capacity; Jan Chapman, Assistant United States Attorney, individually and in her official capacity; United States Department of Justice, a governmental entity; Federal Bureau of Investigation, a governmental entity; "John Doe" and other unnamed and unknown agents in the Denver Office of the Federal Bureau of Investigation, individually and in their official capacities; Matt Dunn, Deputy United States Marshal, individually and in his official capacity; Peyton Baer, Deputy United States Marshal, individually and in his official capacity; Les Weisenhorn, Deputy United States Marshal, individually and in his official capacity; City and County of Denver, a governmental entity; Dale A. Tooley, District Attorney for the City and County of Denver, individually and in his official capacity; Castelar Garcia, Jr., Deputy District Attorney, individually and in his official capacity; City of Denver Police Department, a governmental entity; Arthur Dill, Chief of Police, individually and in his official capacity; Robert Shaugnessy, Chief, City of Denver Police Department, individually and in his official capacity; Robert Nicoletti, Captain, Denver Police Department, individually and in his official capacity; J.C. Tyus, Detective, Denver Police Department; "John Does," and other unnamed and unknown agents of the Denver Police Department; Sandy Spencer and Peter Webb, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 424

771 F.2d 424

Francisco Eugenio MARTINEZ, Plaintiff-Appellant, v. Fred M. WINNER, Chief Judge of the United States District Court for the District of Colorado, individually and in his official capacity; Joseph M. Dolan, United States Attorney for the District of Colorado, individually and in his official capacity; Susan Roberts, Assistant United States Attorney, individually and in her official capacity; John R. Barksdale, Assistant United States Attorney, individually and in his official capacity; Dan Christopher, Assistant United States Attorney, individually and in his official capacity; Jan Chapman, Assistant United States Attorney individually and in her official capacity; United States Department of Justice, a governmental entity; Federal Bureau of Investigation, a governmental entity; "John Doe" and other unnamed and unknown agents in the Denver Office of the Federal Bureau of Investigation, individually and in their official capacities; Matt Dunn, Deputy United States Marshal, individually and in his official capacity; Peyton Baer, Deputy United States Marshal, individually and in his official capacity; Les Weisenhorn, Deputy United States Marshal, individually and in his official capacity; City and County of Denver, a governmental entity; Dale A Tooley, District Attorney for the City and County of Denver individually and in his official capacity; Castelar Garcia Jr., Deputy District Attorney, individually and in his official capacity; City of Denver Police Department, a governmental entity; Arthur Dill, Chief of Police, individually and in his official capacity; Robert Shaugnessy, Chief, City of Denver Police Department, individually and in his official capacity; Robert Nicoletti, Captain, Denver Police Department, individually and in his official capacity; J.C. Tyus, Detective, Denver Police Department; "John Does," and other unnamed and unknown agents of the Denver Police Department; Sandy Spencer and Peter Webb, Defendants-Appellees.

No. 82-2110.

United States Court of Appeals, Tenth Circuit.

Submitted March 28, 1985.

Decided Aug. 22, 1985.

Adele Graham of Graham & Graham, Denver, Colo., and David Graham of Graham & Graham, San Luis, Colo. (Dan Stormer of Litt & Stormer, Los Angeles, Cal., and James I. Meyerson, New York City, with them on the brief), for plaintiff-appellant.

Gary T. Cornwell of McGuire, Cornwell & Blakey, Denver, Colo., for defendant-appellee Winner.

Mark B. Stern, Appellate Staff, Civil Div., Dept. of Justice, Washington, D.C. (Richard K. Willard, Acting Asst. Atty. Gen., Barbara L. Herwig, Dept. of Justice, Washington, D.C., and Robert N. Miller, U.S. Atty., Denver, Colo., with him on the brief), for defendants-appellees Dolan, Roberts, Barksdale, Chapman, Christopher, Dept. of Justice, F.B.I., Dunn, Baer, Weisenhorn.

Daniel J. Sears, Denver, Colo., for defendant-appellee Spencer.

Jeffrey A. Chase of Holme, Roberts & Owen, Denver, Colo. (Carol H. Green of Holme, Roberts & Owen, Denver, Colo., with him on the brief), for defendant-appellee Webb.

David R. Brougham of Hall & Evans, Denver, Colo., for defendants-appellees Tooley and Garcia.

John R. Flanders of Halaby & McCrea, Denver, Colo. (Theodore S. Halaby and Leslie L. Schluter of Halaby & McCrea, Denver, Colo., and Steven M. Munsinger, Keene, Munsinger & Stuckey, Denver, Colo., with him on the brief), for defendants-appellees City and County of Denver, City of Denver Police Dept., Dill, Shaughnessy, Nicoletti and Tyus.

Before LAY, Chief Judge, BRIGHT and ARNOLD, Circuit Judges. ^*

ARNOLD, Circuit Judge.

Francisco Eugenio Martinez, known as "Kiko," appeals from the District Court's dismissal of his civil-rights complaint. Martinez claims the defendants deprived him of his civil and constitutional rights, conspired to "get Kiko," and tried to "railroad" him into prison on unsubstantiated criminal charges. He asserts claims based on 42 U.S.C. Secs. 1981, 1983, 1985, 1986, and 1988, the First, Fourth, Fifth, Sixth, Eighth, Ninth, Thirteenth, and Fourteenth Amendments to the United States Constitution, unspecified sections of the Constitution of the State of Colorado, common-law tort actions including false arrest, false imprisonment, malicious abuse of process, harassment, gross misconduct, outrageous conduct, and negligence, and violations of the Code of Judicial Conduct and the Code of Professional Responsibility for lawyers. He seeks damages, an injunction, and declaratory relief. The principal defendant is Fred M. Winner, at all relevant times Chief Judge of the United States District Court for the District of Colorado, who presided over plaintiff's trial in 1981 for mailing a letter bomb.

The District Court held that Judge Winner and the federal prosecutors were entitled to immunity from liability for damages for their acts, and that declaratory and injunctive relief were not available in this case. The judge and the federal prosecutors were dismissed from the case, as no relief could be granted against them. The causes of action under 42 U.S.C. Secs. 1981, 1985, 1986, and 1988 were dismissed as either inapplicable or because no claim was stated under them. The claims against the remaining defendants were dismissed under Fed.R.Civ.P. 8(a) and 12(b)(6). ¹ Martinez was given 20 days to correct the deficiencies in the complaint, but he chose to stand on the complaint as filed. The dismissal of his complaint was therefore with prejudice.

We hold that Judge Winner is absolutely immune from any claim for damages, and that injunctive and declaratory relief against him would serve no purpose. He has left office. As to the other defendants, we affirm in part and reverse in part.

I.

Martinez's complaint arises out of criminal actions against him in both state and federal courts for the possession and mailing of three letter bombs. In 1973 the United States Attorney's office for the District of Colorado decided to prosecute Martinez for possession of unregistered explosives and the sending of explosives through the United States mails. Martinez fled the jurisdiction and did not return until 1980, when he was arrested by federal authorities. The charges in the indictment were split; each of three mail-bomb incidents was tried separately. In 1980 the Denver District Attorney's office also charged Martinez with crimes involving bombing attempts. These state charges were later dismissed upon motion of the prosecution.

During the first trial highly improper conduct occurred. The facts are summarized in this Court's decision in United States v. Martinez, 667 F.2d 886, 887-88 (10th Cir.1981), cert. denied, 456 U.S. 1008, 102 S.Ct. 2301, 73 L.Ed.2d 1304 (1982). In stating the facts we draw also on the complaint, which we must take as true for present purposes. During the middle of the first trial the presiding judge, Judge Winner, held a secret meeting in his hotel room. Present at the meeting were two Assistant United States Attorneys, three Deputy United States Marshals, the Judge's second secretary, who was also a deputy clerk of the District Court, and some witnesses for the prosecution. Neither defendant nor his counsel were notified about this meeting. Judge Winner expressed apprehension that the jury was being intimidated by spectators, and that Martinez might be acquitted. He wanted hidden cameras installed to record the intimidation, which he felt was an obstruction of justice. It was agreed at the meeting that a mistrial would be declared, so as to give the government another chance to convict Martinez before another jury. Judge Winner's thought was that the prosecutors should not move for a mistrial until after the defense had presented its case, so that the government could be informed as to defense strategies. The judge further stated that he could provoke counsel for defendant into requesting a mistrial. One witness, also a defendant here, Officer Tyus of the City of Denver Police Department, suggested that he could cause a mistrial by giving improper and prejudicial testimony that had previously been ruled inadmissible. The reason given for not inviting defendant's counsel to the meeting was the court's suspicion (unverified on the record) that one of defendant's counsel might be involved in the supposed conspiracy to intimidate the jury.

The next morning, the government announced that it no longer opposed the motion for mistrial that had been made the previous day by defendant and denied. Defense counsel asked why the government had changed its position, and, according to the complaint, an Assistant United States Attorney replied, falsely, that the government was willing to consent to a mistrial because one of the jurors had become ill. The defense then joined in the motion, and a mistrial was declared. Judge Winner and the government had apparently thought it important to induce defense counsel to join in the mistrial motion, so as to avoid a later claim of double jeopardy.

In United States v. Martinez, supra, we held that the government's misrepresentation of its grounds for seeking a mistrial and its failure to inform the defense of the hotel-room meeting barred retrial as to the first letter-bomb mailing under the Double Jeopardy Clause. Id. at 889-90. Martinez was then tried for a second alleged mailing of a letter bomb, and this time he was acquitted by the jury. The United States then prosecuted him for the third alleged letter-bomb mailing. We held that this prosecution was not barred by the government's apparently negligent destruction of physical evidence, but that the prosecution could not, in the course of the third trial, introduce evidence of the first two alleged bombings as similar crimes or acts. United States v. Martinez, 744 F.2d 76, 80 (10th Cir.1984). On remand, the District Court dismissed the third charge on motion of the government, which apparently believed that it lacked sufficient evidence to convict, in view of our holding ruling out evidence of the first two...