Madonna v. U.S., 807

• Decision Date: 20 June 1989
• Docket Number: D,No. 807,807
• Citation: Madonna v. U.S., 878 F.2d 62 (2nd Cir. 1989)
• Parties: Matthew MADONNA, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. ocket 88-6272.
• Court: U.S. Court of Appeals — Second Circuit

Page 62

878 F.2d 62

14 Fed.R.Serv.3d 820

Matthew MADONNA, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 807, Docket 88-6272.

United States Court of Appeals Second Circuit.

Argued Feb. 16, 1989.

Decided June 20, 1989.

Judd Burstein, P.C., New York City (Gustave Newman, P.C., Paul F. Campagno, New York City, of counsel), for plaintiff-appellant.

James L. Cott, Asst. U.S. Atty., New York City (Rudolph W. Giuliani, U.S. Atty., S.D.N.Y., Richard M. Schwartz, Asst. U.S. Atty., of counsel), for defendant-appellee.

Before LUMBARD, MINER, Circuit Judges, and SPRIZZO, District Judge. ^*

LUMBARD, Circuit Judge:

Matthew Madonna appeals from a judgment of the District Court for the Southern District, Carter, J., entered November 15, 1988, granting the government's Fed.R.Civ.P. 12(c) motion to dismiss Madonna's complaint for failure to state a claim upon which relief can be granted and for failure to plead fraud with particularity, Fed.R.Civ.P. 9(b). Madonna, seeking relief from an order of civil contempt issued against him for his refusal to testify under a grant of immunity before a grand jury, claims that the government perpetrated fraud upon the court when it misrepresented its reasons for calling him to testify. The civil contempt sentence resulted in Madonna's incarceration for 528 days, during which time his previously imposed sentence of 30 years for federal narcotics offenses was stayed. We agree with the district court that Madonna alleges no facts to support his claim and that he did not plead fraud with sufficient particularity. We therefore affirm.

Madonna was convicted by a jury before Judge Carter in December 1976 for conspiracy to import, and possession with intent to distribute, heroin in violation of federal narcotics laws. He was sentenced to a term of thirty years, which he is presently serving in Lewisburg, Pennsylvania. We affirmed. United States v. Madonna, 556 F.2d 562 (2d Cir.), cert. denied, 434 U.S. 919, 98 S.Ct. 392, 54 L.Ed.2d 275 (1977).

In November 1981, Madonna filed a petition for habeas corpus in the Southern District, seeking to vacate his conviction on the grounds that it had been obtained through the use of perjured testimony and prosecutorial suppression of material information. The petition was sub judice during the time relevant to the instant appeal and was denied in April 1982. We affirmed by order in September 1982. Madonna v. United States, 697 F.2d 293 (2d Cir.1982), cert. denied, 459 U.S. 1108, 103 S.Ct. 734, 74 L.Ed.2d 957 (1983).

In December 1981, while incarcerated in Lewisburg, with his habeas petition still pending before Judge Carter, Madonna was summoned to appear before a grand jury in the Southern District. Assistant U.S. Attorney (AUSA) William Tendy informed him that he would be questioned about his prior narcotics activity and his knowledge regarding certain drug dealers in the New York area. At his first appearance before the grand jury on January 21, 1982, Madonna invoked his fifth amendment right not to incriminate himself and refused to testify. On February 17, Judge Edelstein ordered Madonna to testify under a grant of immunity. Again summoned to testify on March 16, Madonna refused to answer questions.

Madonna was then brought before Judge Edelstein. He argued that the prosecution was using the grand jury as a "contempt trap" to punish him for his refusal to testify for the government at trial. He also claimed that the government was improperly using the grand jury to obtain evidence to present in opposition to his pending habeas petition, in which he claimed that the government had used perjured testimony and suppressed Brady material in convicting him.

Judge Edelstein thereupon held Madonna in civil contempt, ordering him jailed for the duration of the grand jury term until he responded to questioning. He ruled this incarceration would be in addition to the sentence he was then serving. Because Madonna persisted in his refusal to testify, his incarceration for contempt ran from March 16, 1982 until the grand jury was discharged on August 25, 1983, thus deferring the expiration of his sentence and his parole eligibility by 528 days, from November 8, 1986 to April 19, 1988.

We subsequently affirmed Judge Edelstein's order. In re Grand Jury Proceeding Involving Matthew Madonna, 697 F.2d 293 (2d Cir.1982). We dismissed Madonna's claim that the grand jury was conducted as a "contempt trap" to lengthen his prison term, finding that he had not shown any reason why the government would go through the elaborate process of summoning a grand jury and securing an order of immunity merely to hold him in contempt and stay his 30-year sentence for 528 days.

Four years later, in March 1986, Madonna, presenting an allegedly new ground for relief from the order of contempt, filed a petition for a writ of habeas corpus in the District Court for the Middle District of Pennsylvania, where he had been reincarcerated after his temporary detention in New York when called before the grand jury. He contended that, in an unrelated habeas petition brought in November of 1983 by another defendant, information had been revealed indicating that Madonna had been summoned before the grand jury in 1982 so that a "coincidental" meeting could be arranged between him and an informant, Nicky Barnes, who had also been called before the grand jury.

Judge Caldwell denied this petition on October 31, 1986 because it was brought in the wrong forum and more than one year had elapsed since the finding of contempt; he noted that Madonna could collaterally attack the contempt order by bringing an independent action under Fed.R.Civ.P. 60(b)(2) in the Southern District of New York, where the contempt had been imposed.

On December 2, 1986, alleging the same claims as he had in his Pennsylvania habeas petition, Madonna filed an independent action in the Southern District pursuant to Rule 60(b)(2) seeking vacatur of his contempt citation. Madonna's evidence that the government had fraudulently misrepresented its reasons for procuring Madonna's grand jury testimony consisted of two documents from the files of the Drug Enforcement Agency (DEA) annexed to his complaint. The first summarizes an interview conducted in July 1981 in which Barnes, the government informant, told a DEA agent that he believed Madonna was "still involved in the trafficking of multi-kilogram amounts of heroin." He said he believed that "more information could be obtained concerning ... Madonna's activities" if a meeting could be arranged between himself and Madonna. The second document is a summary of an interview conducted in October 1981, in which government agents told Barnes that a grand jury was being convened in the Southern District and that several convicted heroin traffickers would be subpoenaed to testify. Barnes was told he, too, would be called. No reference was made to Madonna.

Madonna also alleges that, when he was transferred from Pennsylvania to New York City to appear before the grand jury, he was placed in a cell next to Nicky Barnes. Madonna claims that Barnes then solicited his participation in a large sale of heroin, but he declined. Madonna further points out that AUSA Tendy, who had sought the contempt order, also supervised Barnes's cooperation with the government.

On February 18, 1988, the government moved under Fed.R.Civ.P. 12(c) for judgment on the pleadings, arguing that Madonna failed to allege any evidence to support his contention that the contempt order was obtained by fraud and, in the alternative, that his claim was barred by the doctrines of res judicata and laches.

Judge Carter granted the government's motion on November 7, 1988, finding that Madonna failed to state a claim upon which relief could be granted as required by Fed.R.Civ.P. 12(c). The court further held that his action was also defective for failure to plead fraud with particularity as required by Fed.R.Civ.P. 9(b). Judge Carter did not address the claims that the action was barred by res judicata and laches. Madonna now appeals the dismissal of his complaint.

Failure To State A Claim Upon Which Relief Can Be Granted

An independent action under Fed.R.Civ.P. 60(b)(2) allows the court to relieve a party from a judgment if new evidence of fraud or mistake is discovered which was not available to the party in time to move for a new trial. Southmark Properties v. Charles House Corp., 742 F.2d 862, 872-73 (5th Cir.1984). Normally, an action for fraud on the court under Rule 60(b) must be established by clear and convincing evidence, Booker v. Dugger, 825 F.2d 281, 283-84 (11th Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 1488, 99 L.Ed.2d 716 (1988). However, for the purpose of refuting a motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c), the nonmoving party need not meet this high burden of proof at the threshold; it is enough to allege facts which, when assumed to be true, would amount to fraud on the court.

In evaluating a Rule 12(c) motion, the court must view the pleadings in the light most favorable to, and draw all reasonable inferences in favor of, the nonmoving party. Falls Riverway Realty, Inc. v. City of Niagara Falls, 754 F.2d 49, 56 (2d Cir.19...