941 F.2d 280 (5th Cir. 1991), 90-3226, Doe v. Doe

Docket Nº:90-3226, 90-3536.
Citation:941 F.2d 280
Party Name:John DOE, Plaintiff-Appellant, v. John DOE, et al., Defendants-Appellees.
Case Date:August 23, 1991
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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941 F.2d 280 (5th Cir. 1991)

John DOE, Plaintiff-Appellant,

v.

John DOE, et al., Defendants-Appellees.

Nos. 90-3226, 90-3536.

United States Court of Appeals, Fifth Circuit

August 23, 1991

Rhonda M. Benedetto, Lanny R. Zatzkis, New Orleans, La., for plaintiff-appellant.

Francis A. Olivier, III, John L. Olivier, Sunset, La., for Davis and defendants-appellees.

Malcolm W. Monroe, Joseph L. Spilman, III, Deutsch, Kerrigan & Stiles, New Orleans, La., for Nill.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before WISDOM, JOLLY and DAVIS, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Dr. Lucas A. DiLeo is a physician who lives in New Orleans, Louisiana. In 1989, he filed two defamation lawsuits against the respective authors and publishers of two best-selling books, Contract on America: The Mafia Murder of President John F. Kennedy and Mafia Kingfish: Carlos Marcello and the Assassination of John F. Kennedy. Both books make passing mention of a Dr. Lucas A. DiLeo of New Orleans and arguably accuse him of playing

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a part in the assassination of Dr. Martin Luther King, Jr. The District Court for the Eastern District of Louisiana entered summary judgment against DiLeo in each suit, largely if not entirely on one ground: that Louisiana's privilege of fair reporting insulated the defendants from liability. DiLeo now appeals, arguing in the main that the trial court erred in its construction and application of this privilege. Not blind to the obvious similarities in the two cases, we consolidated them for oral argument; now, on account of the reasons that follow, we reverse and remand.

I

In September 1976, the 94th Congress established the House Select Committee on Assassinations and charged it with the task of conducting "a full and complete investigation of the circumstances surrounding the deaths of President John F. Kennedy and Dr. Martin Luther King, Jr." Its task accomplished, the Committee in March 1979 published a prolix report (hereinafter the "Report") comprising its final "Findings and Recommendations." One segment of that Report--Part II, subchapter C3, section (a)--dealt with allegations made by William Sartor, a New Orleans-based journalist whose credits included articles published in Time magazine. As the Report itself reveals, the gist of Sartor's allegations was that New Orleans underworld figures had a hand in King's untimely death:

Writer William Sartor, in an unpublished manuscript, advanced the possibility, among other allegations, that organized crime participated in Dr. King's assassination. The committee focused its attention on Sartor's contention that, in New Orleans in December 1967, James Earl Ray met with Charles Stein and three persons who were connected with organized crime and white supremacist groups. The meeting allegedly was held at either the Town & Country Motel, owned by New Orleans Mafia boss Carlos Marcello, or the Provincial Motel, where Ray stayed from December 17 to 19, 1967.

Sartor, who died in 1971, had provided no information about how he discovered that such a meeting occurred, and he wrote that he was not aware of the subject of the meeting. In support of his speculation that this meeting was in some way linked to the assassination of Dr. King, however, Sartor pointed to the following considerations:

The proximity in time between the meeting and the assassination;

The occurrence of the meeting in a city Sartor described as a bastion of racist thinking;

The location of the meeting at either one of two hotels that Sartor suggested were guest houses for an underworld clientele; and

Ray's statement to author William Bradford Huie that he left New Orleans with $2,500 cash and the promise of $12,000 more for doing one last big job in 2 to 3 months.

Sartor wrote that Sam DiPianzza, Sol La Charta and Lucas Dilles were also in the meeting. DiPianzza and La Charta were described by Sartor as involved in organized crime, as well as avid racists. Dilles, also a racist, was allegedly connected with the late Leander Perez, Louisiana political boss and virulent segregationist.

Further investigation by the committee revealed that the correct spelling for names of the persons alluded to by Sartor was Salvadore "Sam" DiPiazza, Dr. Lucas A. DiLeo, and Salvadore La Charda.

Sartor also speculated that Ray may have been told during this meeting that Carlos Marcello would protect him after the assassination because Sartor believed both DiPiazza and La Charda had direct ties to Marcello.

The committee checked the backgrounds of the three persons named by Sartor. DiPiazza, a suburban New Orleans resident, was a gambler and bookmaker with reputed connections to Marcello and other underworld figures. Approximately 3 weeks before the alleged meeting, DiPiazza was sentenced to 10

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years in prison on a gambling conviction. Although he was free on bond at the time of the alleged meeting, he denied in a committee interview ever meeting with Ray. DiLeo, a practicing physician in a New Orleans suburb, had a record for such minor offenses as disturbing the peace, resisting arrest, and assault. When questioned by the committee, he maintained that he never had heard of the Provincial Motel but admitted he was familiar with the Town & Country Motel where he had stayed once 20 years earlier. He stated that he had never met or spoken with Ray or Marcello. Salvadore La Charda, formerly Chief Juvenile Probation Officer in the St. Bernard Parish Sheriff's Office, committed suicide in June 1968. He had no criminal record. DiLeo and DiPiazza were unable to account for their whereabouts on December 17 through 19, 1968.

A review of the Provincial Motel records indicated that the persons named by Sartor had not registered at the motel while Ray was there. Town & Country records were no longer available. Both Charles Stein and Carlos Marcello told the committee they knew of no such meeting with Ray or the others.

In this manuscript, Sartor named two sources of his information. Carlton Pecot, the first Black police officer in New Orleans and the director of a Federal education program aiding minority students in 1978, appeared to be the primary source of Sartor's New Orleans information. When questioned under oath by the committee with regard to Sartor's reliability and the accuracy of his notes, Pecot claimed, however, that he was unfamiliar with most of the facts and statements in Sartor's manuscript. Pecot did recall meeting with Sartor five to eight times to assist with his investigation of relevant leads in the King case.

Robert Lyons, another purported Sartor source, told the FBI in 1968 that Sartor had attributed false information to him that in reality originated with Sartor.

The committee found no support for Sartor's contention that Ray met with persons involved in organized crime in New Orleans before the assassination. 1

Endnotes to this segment of the Report reference a "Manuscript of William Sartor (MLK document 110334)" as well as an "Interview of Dr. Lucas A. DiLeo, Feb. 22, 1978, House Select Committee on Assassinations (MLK document 260205)." Unlike the Report, however, which is freely available, the "Manuscript" and the "Interview" (along with all other background documents) have been sealed by congressional order until the year 2029.

For some, the Report fulfilled its mandate to be "full and complete"; for others, it raised as many questions as it answered. A member of the latter camp, David E. Scheim, wrote and in 1983 had published Contract on America, described by its jacket as "an explosive, authoritative expose of organized crime's brazen assault on the American political process." More specifically, Contract on America touts itself as presenting "hard evidence confirming long-suspected Mob culpability" in the assassinations of Kennedy and King. The only edition of this self-described expose relevant here was published in 1988 by Shapolsky Publishers and republished, in paperback, by Kensington Publishing the following year.

In that edition, Scheim drew upon the Report to surmise that there was more to King's assassination than meets the undiscerning eye:

The trail of the King case did in fact lead into Marcello's turf. On December 15, 1967, less than four months before the Memphis shooting, Ray and another man, Charles Stein, took a car trip from California to New Orleans--the same city frequented by Oswald, Ruby, Ferrie and Brading in the months before the Kennedy assassination. According to the House Assassinations Committee, Ray took the "possibly sinister" trip with a specific and important objective, accomplished it rapidly, met with someone in New Orleans and received money on the

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trip. Ray himself admitted receiving $500 during this trip but provided a dubious account of how he obtained it. His brother John explained the apparent limit to Ray's candor:

If my brother did kill King he did it for a lot of money--he never did anything if it wasn't for money--and those who paid him wouldn't want him sitting in a courtroom telling everything he knows.

The underworld involvement of Ray's traveling companion, Charles Stein, provides a possible clue to Ray's contact in New Orleans. A 38-year-old former resident of that city, Stein had touched key bases there during his criminal career. In the mid-1950s, he worked at several bars in the French Quarter, including Marie's Lounge, where he managed and ran dice tables. In the early 1960s, he ran a prostitution ring that included his wife. During the same period, he was also reputedly involved in selling narcotics--a favorite Mafia activity in New Orleans, along with gambling and prostitution. Later, in 1974, Stein was...

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