Avirgan v. Hull, 86-1146-CIV.
| Decision Date | 23 June 1988 |
| Docket Number | No. 86-1146-CIV.,86-1146-CIV. |
| Parties | Tony AVIRGAN, and Martha Honey, Plaintiffs, v. John HULL, Bruce Jones, Rene Corbo, Felipe Vidal Santiago, Moises Dagoberto Nunez, Francisco Chanes, Ramon Cecilio Palacio, Ricardo Gris, William Gris, Roger Lee Pallais, Amac Galil, Hector Cornillot, Jorge Gonzalez, Adolfo Calero, Alvaro Cruz, Frederico Saenz, Robert W. Owen, John K. Singlaub, Ronald Joseph Martin, Sr., James McCoy, Thomas Posey, Rafael "Chi Chi" Quintero, Mario Delamico, Thomas Clines, Theodore Shackley, Albert Hakim, Richard Secord, Pablo Escobar, and Jorge Ochoa, Defendants. |
| Court | U.S. District Court — Southern District of Florida |
691 F. Supp. 1357
Tony AVIRGAN, and Martha Honey, Plaintiffs,
v.
John HULL, Bruce Jones, Rene Corbo, Felipe Vidal Santiago, Moises Dagoberto Nunez, Francisco Chanes, Ramon Cecilio Palacio, Ricardo Gris, William Gris, Roger Lee Pallais, Amac Galil, Hector Cornillot, Jorge Gonzalez, Adolfo Calero, Alvaro Cruz, Frederico Saenz, Robert W. Owen, John K. Singlaub, Ronald Joseph Martin, Sr., James McCoy, Thomas Posey, Rafael "Chi Chi" Quintero, Mario Delamico, Thomas Clines, Theodore Shackley, Albert Hakim, Richard Secord, Pablo Escobar, and Jorge Ochoa, Defendants.
No. 86-1146-CIV.
United States District Court, S.D. Florida, Miami Division.
June 23, 1988.
Fitzgerald, Portela & Portunodo, Wood, Lucksinger & Epstein, Miami, Fla., for Adolfo Calero.
Milledge, Iden & Snyder by Allan Milledge, Florence Beth Snyder, Miami, Fla., for Rafael "Chichi" Quintero, Thomas Clines, Richard Secord, Albert Hakim.
Fowler, White, Burnett, Hurley, Banick & Strickroot, P.A. by Curtis Carlson, Miami, Fla., for Thomas Posey.
Spencer, Bernstein, Seemann & Klein, Miami, Fla., William Henry Stiles, V, Key Biscayne, Fla., Law Offices of John P. Sears, Philip J. Hare, Washington, D.C., for John Singlaub.
Jack McKay, P.C., Washington, D.C., Alley, Maass, Rogers, Lindsay & Chauncey by George P. Ord, Palm Beach, Fla., for Theodore Shackley.
Fine, Jacobson, Schwartz, Nash, Block & England, P.A. by Theodore Klein, Miami, Fla., for James McCoy, Mario Delamico.
Robert W. Owen, Washington, D.C., pro se.
Bruce Jones, Lutz, Fla., pro se.
Diaz, Silveira & Associates, P.A., Coral Gables, Fla., for Jorge Gonzalez.
Robert F. Garcia-Esquerro, Coral Gables, Fla., for Rene Corbo.
Zuckerman, Spaeder, Taylor & Evans by John F. Evans, Coral Gables, Fla., for Andy Messing.
Luis S. Konski, Walton Lantaff Schroeder & Carson, Miami, Fla., for Moises (Dagoberto) Nunez.
OPINION GRANTING SUMMARY JUDGMENTS
JAMES LAWRENCE KING, Chief Judge.
The thundering explosion of a bomb shattered the evening air at the river bank camp of the Southern Contra Force led by
Plaintiffs, one of whom is a journalist who survived the explosion that left eight dead and numerous wounded, accuse the 29 defendants of causing this bombing. They alleged that this bombing was only one act of criminal RICO enterprise consisting of all of the defendants whose purpose was to overthrow the Government of Nicaragua. Plaintiffs seek damages for their personal injuries resulting from the bombing and for interference with their subsequent investigation of the bombing tragedy.
The Plaintiffs are reporters who, while working for various news agencies, cover Central America. As part of this assignment, the Plaintiff Tony Avirgan covered the La Penca press conference held by the Contra leader Eden Pastora.
All defendants deny plaintiffs' allegation of the existance of a RICO conspiracy or any involvement with the bombing and assassination attempt. Thirteen defendants1 have moved for summary judgment on the basis that plaintiffs, after all discovery has been concluded, have failed to establish that the alleged assassination attempt was connected in any way with these defendants or that they caused any loss or injury to the plaintiffs. These Defendants include alleged Central Intelligence Agency operatives, military intelligence personnel, mercenaries, arm merchants and Colombian drug lords. The principal allegations of the complaint focus on Nicaragua, but it also touches upon some alleged anti-Communist operations in Cuba, Southeast Asia, Iran and Libya.
I. The Conspiracy Allegation of the Complaint and the Order Setting Guidelines for Discovery
The plaintiffs specified May 1983 as the commencement of the alleged conspiracy and its continuance through the filing of the original complaint on May 29, 1986. Each and every allegation pertaining to the La Penca bombing and those matters surrounding the alleged involvement of the defendants in the events then taking place in Nicaragua (set forth in paragraphs 38 to 74 of the amended complaint of October 3, 1986) are alleged to have occurred between May 1983 and May 29, 1986. See Amended Complaint pp. 13-25.
The court, after hearing in oral argument the respective positions of the parties, established limitations and guidelines for discovery on July 30, 1987. The limitation was both to time and subject matter. The time limit was the time specified by plaintiffs in their amended complaint as being the time frame of the alleged conspiracy plus six months before the first alleged overt act of May 1983. The parties were limited in their discovery to a four year period covering the relevant alleged conspiratorial time period of December 1982 until November 1986. The subject matter limitation revolved around discovery arising out of the alleged events in Central America, the purchase or sale of military equipment, weapons or explosives, transactions in illegal drugs, the operation of the alleged Neutrality Act enterprise and any action resulting in or causing any injury to the plaintiffs, specifically including the La Penca bombing. Full and complete discovery for the time and subject matter alleged by the plaintiffs has been permitted.
The plaintiff's contend that they should have been permitted to conduct worldwide discovery concerning the activities of the
Plaintiffs are bound by the allegations of their complaint wherein they designated the date of commencement of the enterprise as May 1983. If the plaintiffs cannot demonstrate by admissible and competent proof that these defendants injured them as alleged in the complaint, then they have no case cognizable under the RICO Statute and no right to discovery pre 1982. Absent such a showing, it is completely immaterial to any issue in this law suit whether the defendants were, or were not, involved in some other enterprise at some other time in Cuba, Southeast Asia, Iran or Libya. To have permitted them to inquire into every facet of the lives of the defendants for the past thirty years, without first requiring plaintiffs to show that defendants injured the plaintiff at the La Penca bombing would be wrong.
The defendant Shackley has twice sought summary judgment upon the basis that no evidence had been developed during the discovery phase of this litigation to sustain any of the allegations brought by the plaintiffs against him. In each instance the plaintiffs defended on the basis that additional time for discovery was required and that Mr. Shackley's motions were premature since the parties had until the pretrial conference date within which to complete all discovery. The court denied these motions, agreeing with plaintiffs that they should have up until the cutoff of all discovery (the pretrial conference date) within which to adduce all relevant facts.
The plaintiffs have been given the broadest possible time for discovery of the facts relevant to the issues relating to the Le Penca bombing, the events of Nicaragua and the overt acts alleged in the amended complaint. The plaintiffs have had two years to develop facts to support the allegations of their complaint, during which over 20 depositions have been taken, dozens of sets of interrogatories propounded and numerous affidavits filed.
II. The Causes of Action
The complaint sets forth eight causes of action. The gravamen of these counts is one claim under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961-1968 (1986). The complaint also sets forth seven state claims, six arising under Florida common law and one under the Florida RICO statute.
A. The RICO Claim.
The core of the Plaintiffs complaint rests upon 18 U.S.C. § 1964(c), which has been termed civil RICO. This section provides
(c) Any person injured in his business or property by reason of a violation of Section 1962 of this chapter may sue therefore in any appropriate United States District Court and shall recover threefold damages he sustains and the cost of the suit including a reasonable attorneys fee.
From this language, the Plaintiff must prove three essential elements. See Wilcox Development Company v. First Interstate Bank of Oregon, 97 F.R.D. 440-447 (D.Or.1983). The first element is a violation of 18 U.S.C. § 1962. The second requirement is causation; that is, a direct injury of the plaintiffs from such violation. The third requirement is damages sustained by the Plaintiffs. Id. at 446.
Title 18, U.S.C. § 1962 establishes four violations. A Defendant violates § 1962(a) if that person receives any income derived directly or indirectly from a pattern of racketeering activity and uses or invests directly or indirectly any part of this income or the proceeds of this income to acquire any interest in or establish or operate an enterprise that is engaged in or the activities of which effect interstate or foreign commerce. A defendant violates § 1962(b) by acquiring or maintaining through a pattern of racketeering activity any interest in or control of any enterprise which is engaged in or the activities of which affect interstate or foreign commerce. A defendant violates § 1962(c) if that defendant is employed by or associated with any enterprise engaged in or the activities of which effect interstate or foreign commerce and that defendant conducts
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