Jones v. United States, LR-75-C-141.

• Decision Date: 27 August 1975
• Docket Number: No. LR-75-C-141.,LR-75-C-141.
• Parties: Guy Hamilton JONES, Sr., Plaintiff, v. UNITED STATES of America and W. H. Dillahunty et al., Defendants.
• Court: U.S. District Court — Eastern District of Arkansas

401 F. Supp. 168

Guy Hamilton JONES, Sr., Plaintiff, v. UNITED STATES of America and W. H. Dillahunty et al., Defendants.

No. LR-75-C-141.

United States District Court, E. D. Arkansas, W. D.

August 27, 1975.

Guy Hamilton Jones, Jr., and Phil Stratton, Conway, Ark., for plaintiff.

Robert Fussell, Asst. U. S., Atty., for defendants.

MEMORANDUM

URBOM, Chief Judge.^*

This is an action against a United States Attorney and his assistants, agents of the Department of Justice, and agents of the Internal Revenue Service of the Department of the Treasury for damages for alleged jury tampering occurring at the plaintiff's aborted criminal trial. The claim is that during the criminal trial the defendants (who were prosecutors and others associating with the prosecutors in prosecuting the plaintiff) contacted or caused the contacting of a juror at and about his home, as a result of which a mistrial was declared, thereby depriving the plaintiff of the just and speedy trial guaranteed by the Fourth, Sixth and Fourteenth Amendments to the Constitution of the United States.

Pursuant to this court's order of July 9, 1975, a hearing was held on July 17, 1975, to consider the defendants' motion to dismiss, filing at 34, and motion to dismiss or in the alternative for summary judgment, filing at 114. The hearing consisted of testimony and oral argument relative to the legal recognition of this action under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), and the Civil Rights Act, 42 U.S.C. § 1981 et seq. This court previously held that no claim under 42 U.S.C. § 1983 has been stated by the plaintiff in his complaint as amended, and the plaintiff has admitted that no claim exists under 42 U.S.C. §§ 1981, 1982, 1984, 1985(1), 1985(3), and the last clause of 1985(2). Therefore, if a legal remedy exists to redress the allegations made by the plaintiff, it exists under the Federal Tort Claims Act or the initial clause of 42 U.S.C. § 1985 (2).

I. THE FEDERAL TORT CLAIMS ACT

The Federal Tort Claims Act, 28 U.S. C. § 1346(b) declares:

"... The district courts ... shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages ... for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." (Emphasis added)

It is the italicized language which this court now addresses to determine whether a recognizable claim has been presented. The court must decide whether under the facts alleged the United States, if it were a private person, would be liable to the plaintiff under Arkansas law.

In his complaint the plaintiff alleges that the defendants participated "in contacting, associating with, and using electronical devices within and about the home of a juror impaneled ... in the criminal trial of the plaintiff" and that "the Court, upon being informed of said relationship, acts, contacts and communications ... promptly declared a mistrial, preventing plaintiff from obtaining a prompt determination of the matters at issue." The second count of the complaint alleges that the defendants "secretly conspired to and did tamper with a juror sitting on the trial of the Plaintiff" and "did secretly, jointly and severally conspire to, and did obstruct justice in said trial by preventing a determination of said trial as provided by law thereby depriving the Plaintiff of a speedy trial with an impartial jury." Using the allegations of this complaint the court must decide whether the law of Arkansas recognizes a cause of action for damages for alleged jury tampering and obstruction of justice.

The plaintiff argues that jury tampering is a criminal violation of both state and federal law (citing Ark.Stat. § 41-2806 (1964 Repl.); 18 U.S.C. § 1503). He then argues that the common law of Arkansas recognizes an action for damages resulting from any illegal act. The plaintiff cites Bizzell v. Booker, 16 Ark. 308 (1855) to support his contention that all damages resulting from illegal acts are actionable under the Arkansas common law. The Bizzell case was an action of "trespass on the case" wherein the plaintiff sought to recover fire damage to his goods allegedly caused by the defendants' "improper, careless, and negligent management of their camp-fire, fire-pans, and fire-arms." The case specifically dealt with the appropriateness of certain jury instructions and in considering those instructions the court cited Vandenburgh v. Truax, 4 Denio 464, for the general rule that:

"... when one does an illegal or mischievous act, which is likely to prove injurious to others, and when he does a legal act, in such a careless and improper manner, that injury to third persons may probably ensue, he is answerable in some form of action, for all the consequences which may directly and naturally result from his conduct; and, in many cases, he is answerable criminally, as well as civilly." 16 Ark. at 317.

Since the Bizzell court held that no illegal act had been performed by the defendants under the alleged facts and that no instruction was proper about liability for illegal acts, even assuming that such was the law in Arkansas, I do not believe it can be cited for the broad proposition that any criminal act subjects the wrongdoer to civil liability. It is unquestionable that assault and battery can subject an individual to both criminal and civil liability. Likewise, the destruction of property can result in criminal and civil penalties. But it is highly improbable that all forms of illegal activity, regulatory and criminal, can become a basis for civil liability, and the better course is to examine the applicable criminal statute to determine whether civil liability is encompassed therein.

In determining whether a private remedy is to be inferred from the enacting of a federal or state criminal statute, this court considers the factors delineated by the United States Supreme Court in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975):

"First, is the plaintiff `one of the class for whose especial benefit the statute was enacted,' Texas & Pacific R. Co. v. Rigsby, 241 U.S. 33, 39, 36 S.Ct. 482, 484, 60 L.Ed. 874 (1916) (emphasis supplied)—that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? See, e. g. National Railroad Passenger Corp. v. National Association of Railroad Passengers, 414 U.S. 453, 458, 460 94 S.Ct. 690, 693, 694, 38 L.Ed.2d 646 (1974) (Amtrak). Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? ... And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law?"

The Cort case dealt with a federal statute and the suit before this court concerns an alleged violation of both state and federal criminal law. Although in the context of the Federal Tort Claims Act the question is whether Arkansas courts would recognize a civil remedy from violation of a state or federal criminal statute, the criteria of the Cort decision are analytically helpful. In applying these standards, however, I am mindful that no common law action for damages for tortious jury tampering has been found by either this court or the counsel representing the parties in this action. This absence places the plaintiff initially in a tenuous position.

In addressing myself to these criteria I look first to Smith v. United States, 274 F. 351 (C.A. 8th Cir. 1921), wherein it was stated that the purpose of § 135 of the Criminal Code (U.S.Comp. Stat. § 10305—the predecessor of 18 U.S. C. § 1503) "was not to charge witnesses with duty or liability, but to protect them and the administration of justice from corruptly threatening and intimidating acts by third persons." If the statute were directed to a class of people it would be a class comprising witnesses and jurors, a class to which the plaintiff in this action does not belong.

Secondly, this court has been unable to discern any indication of state or congressional intent to create a civil remedy through the passage of their respective criminal statutes against jury tampering. An argument against such an inference of intended civil redress is presented in Robinson v. Missouri Pacific Transp. Co., 85 F.Supp. 235 (U.S.D.C. W.D.Ark.1949), and Ragsdale v. Watson, 201 F.Supp. 495 (U.S.D.C.W.D.Ark. 1962), wherein it was held that there is no civil action for damages arising from subornation of false testimony. The criminal statutes on perjury and jury tampering are sufficiently analogous for this court to say that as of this date no civil action for jury tampering exists in the State of Arkansas. If any legislative intent existed to provide such a remedy, it has not been found by counsel or me.

Thirdly, I do not believe that it is consistent with the underlying purpose of the jury tampering statutes to imply a civil remedy for their violation. The emotional or physical distress the plaintiff may have incurred as a result of his mistrial cannot arguably have been the subject to which the criminal statutes were directed. Additionally, any violation of his speedy trial rights could and may have been protected within the framework of a constitutional defense at his criminal trial. I do not think, therefore, that the drafters of these criminal statutes intended to create a civil remedy for their violation. Furthermore, I am convinced that the criminal strictures set out in the statutes themselves are sufficient to...