Doe v. Civiletti, No. 151

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtBefore WATERMAN, KAUFMAN and MESKILL; IRVING R. KAUFMAN; Griesa; Griesa
Citation635 F.2d 88
Docket NumberNo. 151,D
Decision Date15 October 1980
PartiesJane DOE, Individually and on behalf of her four infant children, Plaintiff- Appellant, v. Benjamin CIVILETTI, United States Attorney General, John Fallon, Director, Northeastern Region, Federal Drug Enforcement Administration, Norman A. Carlson, Director, Federal Bureau of Prisons, Jack Walsh, United States Marshals Service, and the United States of America, Defendants-Appellees. ocket 79-6250.

Page 88

635 F.2d 88
Jane DOE, Individually and on behalf of her four infant
children, Plaintiff- Appellant,
v.
Benjamin CIVILETTI, United States Attorney General, John
Fallon, Director, Northeastern Region, Federal Drug
Enforcement Administration, Norman A. Carlson, Director,
Federal Bureau of Prisons, Jack Walsh, United States
Marshals Service, and the United States of America,
Defendants-Appellees.
No. 151, Docket 79-6250.
United States Court of Appeals,
Second Circuit.
Argued Sept. 19, 1980.
Decided Oct. 15, 1980.

Page 89

Jo Ann Cahn, New York City, for plaintiff-appellant.

Twila L. Perry, Asst. U. S. Atty., S. D. New York, New York City (John S. Martin, Jr., U. S. Atty., Michael H. Dolinger, Asst. U. S. Atty., New York City, of counsel), for defendants-appellees.

Before WATERMAN, KAUFMAN and MESKILL, Circuit Judges.

IRVING R. KAUFMAN, Circuit Judge:

Aware that threats of retaliation were discouraging Government witnesses from testifying against participants in organized crime, Congress ten years ago passed Title V of the Organized Crime Control Act of 1970. The law authorized the Attorney General to provide for the protection and subsistence of persons who might testify for the Government, or did so testify, at the trials of organized crime figures. It vested the Attorney General with broad discretion to determine which witnesses would receive Government protection, and to decide how that protection would be secured. Since its inception, the so-called Witness Protection Program ("the Program") has been highly successful in producing convictions against organized crime figures. The Program also has an exceptional record for safeguarding its participants.

The complaint in this case, brought by a disappointed former participant, invites us to review and restrict the Attorney General's broad discretion to administer the Program. Moreover, it asks us to ignore the well-established rule that the federal courts do not have power to order specific performance by the United States of its alleged contractual obligations. In light of that rule, and because we find the Attorney General's decisions regarding the Program are largely insulated from judicial review, we decline these invitations, and affirm the dismissal of the complaint.

I. A.

Title V of the Organized Crime Control Act contains four short sections. The three pertinent here provide, in full:

Sec. 501. The Attorney General of the United States is authorized to provide for the security of Government witnesses, potential Government witnesses, and the families of Government witnesses and potential witnesses in legal proceedings

Page 90

against any person alleged to have participated in an organized criminal activity.

Sec. 502. The Attorney General of the United States is authorized to rent, purchase, modify, or remodel protected housing facilities and to otherwise offer to provide for the health, safety, and welfare of witnesses and persons intended to be called as Government witnesses, and the families of witnesses and persons intended to be called as Government witnesses in legal proceedings instituted against any person alleged to have participated in an organized criminal activity whenever, in his judgment, testimony from, or a willingness to testify by, such a witness would place his life or person, or the life or person of a member of his family or household, in jeopardy. Any person availing himself of an offer by the Attorney General to use such facilities may continue to use such facilities for as long as the Attorney General determines the jeopardy to his life or person continues.

Sec. 504. There is hereby authorized to be appropriated from time to time such funds as are necessary to carry out the provisions of this title.

Pub.L. 91-452, Title V, §§ 501, 502, 504, 84 Stat. 933 (1970), reprinted in 18 U.S.C. prec. § 3481 (Supp.1980). 1

The Attorney General has delegated his power to admit Government witnesses into the Program to the United States Marshals Service. 28 C.F.R. § 0.111(c) (1979). 2 The delegation is exclusive. No other persons have any authority to make decisions or representations concerning the Program:

Investigative Agents and (other government) Attorneys are not authorized to make representations to witnesses regarding funding, protection or relocation. Neither are they authorized to make representations to prisoner/witnesses regarding where they will be housed. These matters are for decision by authorized representatives of the U. S. Marshals Service only. Representation or agreements made without authorization will not be honored by the U. S. Marshals Service. 3

Pursuant to this exclusive delegation, the Marshals Service admits unincarcerated witnesses into the Program only after execution of "Memoranda of Understanding." Once a witness signs a Memorandum of Understanding, the Marshals Service assumes responsibility for his physical safety. The Service may either assign Marshals to guard the witness, or give the witness a new identity and relocate him to another part of the country. If the witness is relocated, the Marshals may provide him with subsistence payments.

B.

A statement of the facts underlying the case is essential to our discussion of the applicable law. Jane Doe and Richard Roe 4 were married in 1961. Doe and Roe have four children who, at the time of the trial in this case, ranged in age from thirteen to eighteen. In 1970, a New York state jury convicted Roe of murder and rape. Six years into his sentence, while incarcerated at the New York State prison at Greenhaven, Roe was introduced to Ed

Page 91

Magno, an officer of the federal Drug Enforcement Administration ("DEA"). Roe agreed to assist Magno in his investigations of drug trafficking by organized crime figures. Doe also aided Magno's inquiries. She introduced Magno to drug traffickers as her cousin, lent him her car to substantiate his "cover," and passed information to Magno from Roe.

In early September, 1978 Roe and Doe's cooperation with the DEA bore fruit. One of the principal targets of Magno's investigation was arrested on charges of violating federal narcotics laws. With this arrest, further concealment of Doe's involvement with the Government became impossible. To avoid retaliation against her, the Marshals secreted Doe and her children in a hotel in Manhattan for several days. There, Doe signed a Memorandum of Understanding with the Marshals, enrolling herself and her children in the Witness Protection Program. She later signed other parts of the Memorandum at a hotel in Connecticut, where she and her children stayed for a time before being relocated to Texas. The Memorandum provided, in part:

Protection and maintenance are not provided in return for testimony. This memorandum is not a contract or an agreement to provide protection or maintenance in return for testimony.... Moreover, since it is within the Attorney General's discretion to approve participation in the Program, the witness may be terminated from the Program when the Attorney General determines that the life or person of the witness is no longer in danger, or for other reasons deemed appropriate by the Attorney General or his representative.

One section of the Memorandum required Doe to list all promises made to her by investigative agents and government attorneys. Doe wrote: "DEA-Ed Magno-stated to me that after the investigation was over my husband Ken and I would be able to be together more often than when he was at Greenhaven prison." 5

Upon arrival at their new home in Texas, Doe and her children commenced receiving $1,006 per month in subsistence benefits. Periodically during her stay in Texas, Doe was transported, at Government expense, to visit her husband in New York. On May 16, 1979, after Doe had been in Texas for several months, Luther Jones, a United States Marshal, told her he had arranged an employment interview for her. The interview was for a job on the night shift at an assembly plant. Without inquiring as to the character or specific hours of the job, Doe cited an alleged complete emotional inability to work and refused to appear at the appointment. In August 1979, Jones returned to inform Doe that the Department of Justice had decided to terminate her subsistence benefits the following month.

In September, ignoring the warnings of Special United States Attorney Joel Cohen, Doe brought her family back to New York. Shortly thereafter, she initiated the present action on behalf of herself and her four children. Her complaint prayed for orders mandating her protection and her re-enrollment in the Witness Protection Program, and for an injunction to attain these ends pendente lite. Named as defendants were,

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inter alia, the Attorney General, the Regional Director of the Federal Drug Enforcement Administration, and the Director of the Federal Bureau of Prisons. 6

Judge Griesa consolidated the hearing on the preliminary injunction with the trial on the merits, and the case was heard in late October 1979. Doe 7 called three principal witnesses at trial. The first, Roe, testified concerning the terms of several promises which the Government allegedly made to him and his wife. He stated that on numerous occasions in 1977, Magno assured them that if they continued to cooperate with the DEA, they would receive several benefits. Roe claimed they were told he would spend only two or three more years in prison, and would be transferred to a minimum security facility. The Government, he testified, promised to support Doe and their children for the remainder of Roe's confinement. Roe conceded these alleged promises were never reduced to writing.

He also asserted that in May 1979, Special Attorney Joel Cohen, a member of the Organized Crime Strike Force in Brooklyn, was present when DEA officers other than Magno promised to provide subsistence to Roe's family. Roe acknowledged, however, that United States Marshal Al McNeill explained to him...

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69 practice notes
  • Barbera v. Smith, No. 84 Civ. 8624 (SWK).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • February 9, 1987
    ...government at the trials of organized crime figures. It has an exceptional record for safeguarding its participants. See Doe v. Civiletti, 635 F.2d 88, 89 (2d Cir.1980). While not directly applicable here, such laws demonstrate the government's general awareness of the special dangers which......
  • Rosebud Sioux Tribe v. US, BUR. OF INDIAN AFF., Civ. No. 86-3014.
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • June 21, 1989
    ...of federal district courts, but is not a general waiver of sovereign immunity allowing suits against the government. See Doe v. Civiletti, 635 F.2d 88, 94 (2d Cir.1980); see also Devilbiss v. Small Business Administration, 661 F.2d 716, 718 (8th Cir.1981). If another statute waives sovereig......
  • LaChance v. Drug Enforcement Admin., No. CV 86-3816.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • August 24, 1987
    ...question jurisdiction, cannot be construed as a waiver of the sovereign immunity of the United States from suit. See Doe v. Civiletti, 635 F.2d 88, 94 (2d Cir. 1980); Commonwealth of Kentucky ex. rel. Hancock v. Ruckelshaus, 362 F.Supp. 360, 367 (W.D.Ky.1973), aff'd, 497 F.2d 1172 (6th Cir.......
  • Mack v. US, FBI, No. 83 Civ. 5764 (PNL).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • April 18, 1986
    ...States, 700 F.2d 836, 838 n. 3 & 845 n. 13 (2d Cir.), cert. denied, 464 U.S. 864, 104 S.Ct. 195, 78 L.Ed.2d 171 (1983); Doe v. Civiletti, 635 F.2d 88, 94 (2d Cir.1980); Birnbaum v. United States, 588 F.2d 319, 327-28 (2d Cir.1978). Nevertheless, even assuming the United States has waived it......
  • Request a trial to view additional results
69 cases
  • Barbera v. Smith, No. 84 Civ. 8624 (SWK).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • February 9, 1987
    ...government at the trials of organized crime figures. It has an exceptional record for safeguarding its participants. See Doe v. Civiletti, 635 F.2d 88, 89 (2d Cir.1980). While not directly applicable here, such laws demonstrate the government's general awareness of the special dangers which......
  • Rosebud Sioux Tribe v. US, BUR. OF INDIAN AFF., Civ. No. 86-3014.
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • June 21, 1989
    ...of federal district courts, but is not a general waiver of sovereign immunity allowing suits against the government. See Doe v. Civiletti, 635 F.2d 88, 94 (2d Cir.1980); see also Devilbiss v. Small Business Administration, 661 F.2d 716, 718 (8th Cir.1981). If another statute waives sovereig......
  • LaChance v. Drug Enforcement Admin., No. CV 86-3816.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • August 24, 1987
    ...question jurisdiction, cannot be construed as a waiver of the sovereign immunity of the United States from suit. See Doe v. Civiletti, 635 F.2d 88, 94 (2d Cir. 1980); Commonwealth of Kentucky ex. rel. Hancock v. Ruckelshaus, 362 F.Supp. 360, 367 (W.D.Ky.1973), aff'd, 497 F.2d 1172 (6th Cir.......
  • Mack v. US, FBI, No. 83 Civ. 5764 (PNL).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • April 18, 1986
    ...States, 700 F.2d 836, 838 n. 3 & 845 n. 13 (2d Cir.), cert. denied, 464 U.S. 864, 104 S.Ct. 195, 78 L.Ed.2d 171 (1983); Doe v. Civiletti, 635 F.2d 88, 94 (2d Cir.1980); Birnbaum v. United States, 588 F.2d 319, 327-28 (2d Cir.1978). Nevertheless, even assuming the United States has waived it......
  • Request a trial to view additional results

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