Sinclair v. Schriber, 89-1875

Citation916 F.2d 1109
Decision Date23 October 1990
Docket NumberNo. 89-1875,89-1875
PartiesJohn SINCLAIR, Lawrence R. Plamondon and John W. Forrest, Plaintiffs-Appellants, v. Kenneth L. SCHRIBER, James Sullivan and Charles Wagner, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Dennis M. Hayes, Ann Arbor, Mich., Hugh M. Davis, Jr. (argued), Detroit, Mich., for plaintiffs-appellants.

John C. Hoyle, Barbara L. Herwig, Irene M. Solet (argued), U.S. Dept. of Justice, Appellate Staff, Civ. Div., Washington, D.C., Geneva S. Halliday, Asst. U.S. Atty., Detroit, Mich., for defendants-appellees.

Before JONES and NELSON, Circuit Judges; and PECK, Senior Circuit Judge.

NATHANIEL R. JONES, Circuit Judge.

Plaintiffs appeal the district court's summary judgment dismissal of their First and Sixth Amendment claims against three Federal Bureau of Investigation (FBI) agents. We affirm for the following reasons.

I.

John Sinclair, Lawrence R. Plamondon and John W. Forrest were defendants in a criminal proceeding in 1969 involving the bombing of a Central Intelligence Agency (CIA) office in Ann Arbor, Michigan. Plamondon was charged with the dynamite bombing of the CIA office, and all three of the current plaintiffs were charged with conspiracy. Sinclair v. Kleindienst, 645 F.2d 1080, 1081 (D.C.Cir.1981) ("Sinclair I "). During the course of the criminal proceedings, it was revealed that the FBI had conducted warrantless telephone surveillance of the Black Panther Party in Berkeley and San Francisco, California, from February to July 1969. In conducting its surveillance, the FBI overheard conversations in which Plamondon had participated. Over the government's objection, the United States District Court for the Eastern District of Michigan ordered the government to disclose to Plamondon the contents of his monitored conversations. In United States v. United States District Court, 407 U.S. 297, 323-24, 92 S.Ct. 2125, 2139-40, 32 L.Ed.2d 752 (1972), the Supreme Court rejected the government's argument that no warrant was necessary in order to conduct the latter wiretaps because the wiretaps had as their purpose the protection of domestic security. The Court ordered the government to disclose to Plamondon the contents of his impermissibly intercepted conversations. However, rather than allow disclosure, the government dismissed its indictment against Plamondon, Sinclair and Forrest. Sinclair I, 645 F.2d at 1082.

The plaintiffs then commenced this Bivens suit in the United States District Court for the District of Columbia in March 1973 against the United States, President Richard Nixon, Richard Kleindienst, Patrick Gray and then Attorney General John Mitchell. Among other claims, the suit alleged violations of the plaintiffs' Fourth Amendment rights. In January 1978, during discovery on the Fourth Amendment claim, plaintiff Sinclair learned through documents obtained under the Freedom of Information Act that a second set of FBI surveillances had been conducted, this time of the White Panther Party ("WPP") of which the three plaintiffs were members. The WPP was the Caucasian counterpart of the Black Panther Party, a political organization committed to revolutionary changes in the United States. In January 1979, after further discovery on the WPP surveillances, the plaintiffs moved to amend their complaint to add the three present defendants, Kenneth Lee Schriber, James Sullivan, and Charles Wagner, FBI agents involved in the surveillance of the WPP.

The district court denied the plaintiffs' motion for leave to join the three FBI agents as defendants and further granted summary judgment to the remaining defendants. 1 On appeal, the D.C. Circuit affirmed the district court's grant of summary judgment to Mitchell and other defendants, but reversed the court's denial of leave to join the three FBI agents as defendants. Id. at 1083.

After amendment of the complaint adding the FBI agents as defendants, the three agents moved for dismissal of the suit for failure to state a claim upon which relief could be granted. The district court granted this motion but the D.C. Circuit reversed, holding that the plaintiffs' complaint contained allegations sufficient to establish potentially viable claims of constitutional violations ensuing from the illegal wiretaps of the WPP. Sinclair v. Kleindienst, 711 F.2d 291, 293 (D.C.Cir.1983) ("Sinclair II "). The court also reversed the district court's denial of the plaintiffs' motion to transfer the case to the Eastern District of Michigan pursuant to 28 U.S.C. Sec. 1406(a). Id.

After the case was transferred, the defendants moved for dismissal of the action, or in the alternative for summary judgment, on grounds of qualified immunity. On June 21, 1989, Judge George La Plata granted the defendants' motion. The district court first addressed the plaintiffs' claim that the defendants' violated their Fourth Amendment rights and Title III of the Omnibus Crime Control and Safe Street Act of 1968, 18 U.S.C. Secs. 2510-2520 (1970), by conducting warrantless wiretaps of their conversations. The court held that because the law as to the need for a warrant in order to conduct domestic security wiretaps was not clearly established at the time the defendants acted, the defendants were entitled to qualified immunity. J.App. at 386. The district court next addressed the plaintiffs' claim that the defendants violated their Sixth Amendment right to assistance of counsel by illegally intercepting conversations between their defense attorneys and them during the pendency of the CIA bombing case. The court held that the plaintiffs failed to state a Sixth Amendment violation because they did not show any prejudice to their defense resulting from the wiretaps. Id. at 387. Finally, the district court rejected the plaintiffs' claim that the FBI agents' surveillance activity violated their First Amendment political rights. The court held that absent a showing of objective harm or a threat of specific future harm, the plaintiffs could not establish a violation of the First Amendment rights of political association and expression. Id. at 387-88.

II.

Because the district court considered matters outside the pleadings, its dismissal of the plaintiffs' claims is properly treated as summary judgment. Fed.R.Civ.P. 12(b). An appellate court's review of a district court's grant of summary judgment is a de novo evaluation. Pinney Dock and Transport Co. v. Penn Corp., 838 F.2d 1445, 1472 (6th Cir.1988), cert. denied, 488 U.S. 880, 109 S.Ct. 196, 102 L.Ed.2d 166 (1988). Fed.R.Civ.P. 56(c) authorizes a court to enter summary judgment on a claim if "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." The nonmoving party must make a showing adequate to establish the existence of an essential element of his case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). Although the nonmoving party's evidence in opposition to summary judgment need not be of the sort admissible at trial, he must employ proof other than his pleadings and own affidavits to establish the existence of specific triable facts. Id. at 324, 106 S.Ct. at 2553. An appellate court must view the evidence in the light most favorable to the opponent of the summary judgment motion. Glenway Industries, Inc. v. Wheelabrator-Frye, Inc., 686 F.2d 415, 417 (6th Cir.1982) (per curiam).

A.

The district court dismissed the plaintiffs' Sixth Amendment claims because there was no evidence that the interceptions prejudiced the plaintiffs' trial defense. On appeal, the plaintiffs contend that surveillance of conversations between a criminal defendant and his attorney is per se violative of the Sixth Amendment and that no showing of prejudice was required at the time the defendants in the instant case conducted their surveillance of the WPP. The plaintiffs assert that the district court erroneously applied Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977), to the instant case. In Weatherford, the Supreme Court held that in order to establish a violation of the Sixth Amendment right to counsel ensuing from government surveillance, a claimant must not only show that conversations with an attorney were surreptiously monitored, but must also show that the information gained was used to prejudice the claimant's defense in his criminal trial. Id. at 552, 97 S.Ct. at 842. According to the plaintiffs, at the time the three defendants conducted their surveillance of the WPP from September 1970 through January 1971, the Supreme Court had adopted a per se rule that clandestine intrusion upon conversations between a criminal defendant and his attorney violated the defendant's Sixth Amendment right to counsel. The plaintiffs rely principally on Black v. United States, 385 U.S. 26, 87 S.Ct. 190, 17 L.Ed.2d 26 (1966) (per curiam), and O'Brien v. United States, 386 U.S. 345, 87 S.Ct. 1158, 18 L.Ed.2d 94 (1967) (per curiam), in support of their position.

In Black, a defendant was convicted of federal income tax violations, and his conviction was affirmed on appeal. On appeal to the Supreme Court, the United States Solicitor General voluntarily divulged that the FBI had "bugged" defendant Black's hotel suit in the course of an unrelated criminal investigation and had electronically recorded conversations between Black and his attorney. The Solicitor General, however, assured the Court that none of the information gained through the surveillance was used to prosecute Black in the matter Black was now appealing. While expressing its reluctance to vacate a conviction without ample justification, the Supreme Court ordered a new trial in order to ensure that evidence gained through FBI surveillance not be used against Black. 385 U.S. at 28-29, 87 S.Ct. at 191-92. In O'Brien v. United States, 386 U.S. 345, 87 S.Ct. 1158 the Court, citing Black, again...

To continue reading

Request your trial
20 cases
  • Rodriguez v. Zavaras, Civ.A. 96-D-2559.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • April 1, 1999
    ...v. McManus, 554 F.2d 813, 821 (8th Cir.), cert. denied, 433 U.S. 913, 97 S.Ct. 2985, 53 L.Ed.2d 1099 (1977); Sinclair v. Schriber, 916 F.2d 1109, 1112-13 (6th Cir. 1990); Clark v. Wood, 823 F.2d 1241, 1250 (8th Cir.), cert. denied, 484 U.S. 945, 108 S.Ct. 334, 98 L.Ed.2d 361 (1987); United ......
  • United States v. Collins
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • August 24, 2015
    ...but must also show that the information gained was used to prejudice the claimant's defense in his criminal trial.” Sinclair v. Schriber, 916 F.2d 1109, 1112 (6th Cir.1990). The Supreme Court and the Sixth Circuit have identified a number of factors to consider in determining whether a defe......
  • Blake v. Wright, 97-3907.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • June 15, 1999
    ...claims, specifically a Fourth Amendment violation, although the court did so with no discussion of the issue. See Sinclair v. Schriber, 916 F.2d 1109, 1111 (6th Cir. 1990). In contrast, at least one circuit court has held that qualified immunity does not apply to Title III because the feder......
  • Blake v. Wright, 97-3907
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • June 15, 1999
    ...claims, specifically a Fourth Amendment violation, although the court did so with no discussion of the issue. See Sinclair v. Schriber, 916 F.2d 1109, 1111 (6th Cir.1990). In contrast, at least one circuit court has held that qualified immunity does not apply to Title III because the federa......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT