O'Ferrell v. U.S.

• Decision Date: 11 June 2001
• Docket Number: No. 99-6071,99-6071
• Citation: 253 F.3d 1257
• Parties: (11th Cir. 2001) ROBERT WAYNE O'FERRELL, MARY ANNE O'FERRELL, Plaintiffs-Appellants, v. UNITED STATES OF AMERICA, Defendant-Appellee
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1257

253 F.3d 1257 (11th Cir. 2001)

ROBERT WAYNE O'FERRELL, MARY ANNE O'FERRELL, Plaintiffs-Appellants, v. UNITED STATES OF AMERICA, Defendant-Appellee.

No. 99-6071

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

June 11, 2001

[Copyrighted Material Omitted]

Appeal from the United States District Court for the Middle District of Alabama, D. C. Docket No. 92-01450-CV-A-S

Before BARKETT and HULL, Circuit Judges, and POLLAK^*, District Judge.

POLLAK, District Judge:

Plaintiffs Robert Wayne O'Ferrell and Mary Anne Martin (formerly Mary Anne O'Ferrell)¹ appeal from the District Court's grant of summary judgment dismissing a portion of their lawsuit, and from the District Court's subsequent dismissal of the balance of the lawsuit after a bench trial. The lawsuit was based on actions taken by federal law enforcement agents in 1990 when the plaintiffs were targets of a massive investigation of a group of mail bombings and attempted mail bombings that took place in December of 1989.

Tragically, two of the mail bombs hit their targets. On December 16, 1989, a mail bomb was received at the home of Robert S. Vance and Helen Rainey Vance in Mountain Brook, Alabama. The bomb killed Judge Vance - an eminent and revered member of this court - and severely injured Mrs. Vance. On December 18 a mail bomb killed Robert E. Robinson, a prominent Savannah attorney. On the same day a mail bomb arrived at this court's Atlanta courthouse; but, fortunately, the bomb was intercepted by federal law enforcement agents. On the next day, December 19, a mail bomb was received at the Jacksonville office of the National Association for the Advancement of Colored People ("NAACP"); happily, this bomb was also intercepted and detonated. Concurrently, several members of this court received typed death threats: "JUDGE: AMERICANS FOR A COMPETENT FEDERAL JUDICIAL SYSTEM SHALL ASSASSINATE YOU BECAUSE OF THE FEDERAL COURTS' CALLOUSED DISREGARD FOR THE ADMINISTRATION OF JUSTICE. 010187."

I. The Investigation and the Resultant Search Warrants

A. The Initial Phase.

The FBI at once launched a widespread investigation. A central element of the investigation was intensive analysis of the typed bomb-package labels and the typed death-threat letters (collectively referred to by the District Court as "the bomber documents") that commenced in late December of 1989, almost immediately after the tragic events narrated above. Principal responsibility for this aspect of the FBI's investigation of the murders and death-threats rested with Special Agent William Bodziak, a certified document examiner who had been attached to the document section of the FBI laboratory in Washington for many years. On close scrutiny of the labels and the letters, Agent Bodziak's first significant observation was that all the typed documents displayed a uniform horizontal spacing of the typewritten characters of 2.35 millimeters. A spacing of 2.35 millimeters was an identifying element of a particular line of typewriters produced by Brothers Industries, a Japanese typewriter manufacturer. Drawing upon a customary laboratory reference - the FBI typewriter standards file - Agent Bodziak determined that, with one outstanding exception, several observable features of the typewritten characters were commonly associated with a particular model Brothers Industries manual typewriter. The outstanding exception was an unusual numeral - a number one - unusual in that, projecting horizontally from the top of the vertical shaft, there was a very minute flag-shaped appendage. Agent Bodziak telephoned a Brothers Industries representative who informed Agent Bodziak that the number one he described had not been a feature of any Brothers Industries typewriter. So advised, Agent Bodziak concluded that the unusual numeral was a so-called "replacement character" - a character that becomes part of a typewriter's character array when a damaged striking lever is replaced and the replacement lever has a letter or number of a font unlike the font of the typewriter as manufactured.

In fact, the information supplied to Agent Bodziak by a Brothers Industries representative in December of 1989 (and reaffirmed in a subsequent conversation with a Brothers Industries representative in April of 1990) was inaccurate. The unusual number one was actually a regular element of a limited run of Brothers Industries typewriters manufactured in 1961 and 1962.² In all likelihood Agent Bodziak would have learned this in December of 1989 or January of 1990 had he, in addition to reviewing the FBI typewriter standards file, consulted certain other reference works available to those working in the FBI laboratory - most especially the Haas Atlas - but he did not do so.

Having concluded that the unusual number one was a replacement character, specially installed in a particular typewriter in substitution for a defective striking lever, Agent Bodziak reasoned that there was probably only a single Brothers Industries typewriter that had that deviant number one. A next step in tracing the suspect typewriter (and thereby its owner) was to try to determine whether, prior to the bombings, the suspect typewriter had been used to produce court documents in litigation before Judge Vance or other members of this court. To aid FBI field agents in sifting through hundreds, or perhaps thousands, of court documents, Agent Bodziak prepared a guide that identified several indicative typeface characteristics, including the unusual number one, that appeared in the bomb-package labels and the death-threat letters that he had examined.

B. The O'Ferrells Become Targets of the Investigation.

Agent Bodziak's guidance to the field bore fruit. In the course of the afternoon and evening of January 19, 1990, three agents arrived at the FBI laboratory and delivered five apparently pertinent documents (two agents had two documents apiece, and the third agent had one) to Agent Bodziak. The five documents (collectively referred to by the District Court as "the O'Ferrell documents") had been filed in different offices in connection with O'Ferrell v. Gulf Life Ins. Co., No. 88-7435 (11 Cir. 1988), a case involving Robert O'Ferrell (the principal plaintiff in the case at bar) that had turned out unhappily for Mr. O'Ferrell. (O'Ferrell v. Gulf Life Ins. Co. was a case in which Mr. O'Ferrell pursued a pro se appeal to this court from an adverse judgment of the United States District Court for the Middle District of Alabama; the panel of this court to which the case was assigned - a panel of which Judge Vance was the senior member - dismissed the appeal on April 17, 1989). Three of the five documents were copies of notices of appeal (two original copies and one photocopy); the other two documents were envelopes for notices of appeal.

Agent Bodziak's examination of the five documents delivered on January 19 led him to conclude that they were typed on the same typewriter that had generated the bomb-package labels and the death-threat letters. Agent Bodziak noted a number of indicative common characteristics, but the crucial feature - the sine qua non of his confident conclusion - was the unusual number one, which appeared in both sets of documents and which, believing it to reflect the replacement of a single damaged striking lever on a particular typewriter, Agent Bodziak felt to be dispositive.

In the early morning hours of January 20, Agent Bodziak presented his findings to a hurriedly convened meeting of the FBI headquarters group in overall charge of the investigation. Later that morning, Special Agent Stephen Brannan, the agent in charge of the Birmingham portion of the investigation, was informed by his Washington superiors that the FBI laboratory had determined that there was a match between the typed bomb-package labels and death-threat letters and the typed O'Ferrell v. Gulf Life Ins. Co. appeal papers. Utilizing this information, Agent Brannan at once prepared an affidavit in support of an application to Magistrate Judge John Carroll for search warrants authorizing searches of plaintiffs' home, salvage business and other areas under their control.³ Magistrate Judge Carroll issued search warrants on January 20, and these were followed by others.

C.Searches and Interrogations.

Searches of the O'Ferrells' home and business by FBI agents commenced on January 22, 1990. The tragic bombings having been national news, the searches attracted substantial media attention. FBI agents supplemented the searches with several interrogations of the O'Ferrells.

Apart from the asserted match of the typewritten documents, the FBI's investigation of the O'Ferrells appears to have generated no inculpatory information. On October 9, 1990, the O'Ferrells were advised that they were no longer targets of the investigation.

Subsequently, Walter Leroy Moody was arrested and charged with the bombings, and was ultimately convicted.

II. Proceedings in the District Court

Believing that they had been mistreated in a variety of ways by federal law enforcement officials, the O'Ferrells, in November of 1992, filed a pro se complaint in the District Court for the Middle District of Alabama. The plaintiffs concurrently petitioned for leave to proceed in forma pauperis, which was granted. In February of 1993 the District Court appointed counsel to represent the plaintiffs. (In 1995, retained counsel entered an appearance and, thereafter, appointed counsel were permitted to withdraw). In April of 1993, two months after the appointment of counsel, an amended complaint was filed.

The amended complaint was brought against the United States and a group of unidentified "fictitious" defendants designated as defendants A to Z.

The causes of action asserted directly against the United States were of two kinds. One was a contract claim, in which the O'Ferrells alleged that the United States had offered a $500,000 reward for information leading to the apprehension of...