United States v. Lewis, DeWayne

In the

United States Court of Appeals

For the Seventh Circuit

____________

Nos. 03-2734 & 03-3427

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DEWAYNE LEWIS,

Defendant-Appellant.

DEWAYNE LEWIS,

Plaintiff-Appellant,

v.

SUSAN BOLDEN, Branch Manager of the

Midwest America Federal Credit Union,

Defendant-Appellee.

____________

Appeals from the United States District Court for the

Northern District of Indiana, Fort Wayne Division.

Nos. 1:03-CV-211, 1:03-CV-234—William C. Lee, Judge.

____________

ARGUED SEPTEMBER 21, 2004—DECIDED JUNE 15, 2005

____________

Before MANION, ROVNER, and WOOD, Circuit Judges.

WOOD, Circuit Judge. Although almost anyone might feel

harassed to some degree when a lawsuit is filed against her,

special problems arise when that individual is a victim or

2 Nos. 03-2734 & 03-3427

a witness of a crime, and the plaintiff is associated with a

suspect. Susan Bolden, the Branch Manager for the Mid-

west America Federal Credit Union (Credit Union), was

such a defendant. The district court decided that Bolden

was entitled to protection under the Victim Witness and

Protection Act of 1982 (the Act), Pub. L. No. 97-291, 96 Stat.

1248 (Section 4 of Pub. L. 97-291, codified at 18 U.S.C.

§§ 1512, 1513, 1514, and 1515), which protects victims and

witnesses of federal crimes from “harassment.”

The events in this case arose out of Bolden’s effort to co-

operate with a federal investigation of a bank robbery that

she witnessed, and of which she was a victim. Dewayne

Lewis was not the primary suspect in the robbery, but

circumstantial evidence indicated that he might have had

some role in it. Bolden turned over the names and social se-

curity numbers of both Lewis and Todd Andrews, the pri-

mary suspect to federal authorities investigating the bank

robbery. For her trouble, she was rewarded with this suit by

Lewis, seeking $2 million in damages under 42 U.S.C.

§ 1983 for her role in helping the police—assistance that he

claimed violated his rights under the Fourth Amendment.

The district court took two actions to which Lewis takes

exception here. First, it entered a protective order under 18

U.S.C. § 1514(b) of the Act against Lewis in which it

characterized the lawsuit as “harassment” of Bolden and

commanded Lewis to desist. Second, it dismissed Lewis’s

complaint under FED. R. CIV. P. 12(b)(6). We affirm both the

judgment and the protective order.

I

The underlying facts are, for the most part, undisputed.

On November 28, 2001, the Credit Union was robbed by two

masked gunmen. Bolden, on the job as the Branch Man-

ager, witnessed the crime. The district court found in its

memorandum decision on the requested protective order

Nos. 03-2734 & 03-3427 3

that Bolden was interviewed shortly after the robbery by

Detective Vaughn of the Allen County Sheriff’s Department.

As Vaughn was conducting the interview, both Vaughn and

Bolden heard a radio transmission from the Fort Wayne

police indicating that they may have located a witness.

Specifically, the field officers said that a maroon Cadillac

with three black males had pulled up next to a vehicle at an

apartment complex and the occupants had begun trans-

ferring bags or equipment into the other car and tossing

items up onto the roof. Bolden then reported to Vaughn that

a few days earlier, a maroon Cadillac had been seen

cruising around the bank’s parking lot in the early morning.

One or more of the occupants—also an African-American

male—had gone into the Credit Union and conducted a

transaction. Suspicious, the employees had kept a record of

the names of the individuals who had transacted business

in the bank. They also wrote down a partial license plate

number. At some point—unspecified in the district court’s

order—Vaughn was given those names. He ran the informa-

tion through the Bureau of Motor Vehicles and found that

Lewis had a maroon Cadillac registered to his name.

Another official investigating the robberies was Special

Agent Restituto Loran, an FBI agent who was a member of

the local Federal Bank Robbery Task Force (Task Force).

Agent Loran also reported the substance of the information

collected by Vaughn. Agent Loran’s affidavits, however, do

not clearly indicate what the employees witnessed. Accord-

ing to his November 30, 2001, affidavit, prepared immedi-

ately after the robbery, the employees were able to identify

only Andrews from the record of the earlier transaction.

Loran’s later affidavit, which had been prepared to support

the government’s request for a protective order filed on

June 6, 2003, asserted that the Credit Union employees had

identified both Andrews and Lewis as the individuals in-

volved in the earlier incident. Either way, there is no doubt

that after she overheard the radio dispatch, Bolden con-

4 Nos. 03-2734 & 03-3427

ducted a search of the Credit Union records and provided

the Task Force with Lewis’s name and social security

number. Lewis alleges that she did so at the request of the

law enforcement officers. Lewis himself did not authorize

the search, nor did the police obtain a warrant for the

search.

In the end, the authorities obtained a videotaped confes-

sion from Andrews, and he was charged with aiding and

abetting the Credit Union robbery in violation of 18 U.S.C.

§§ 2, 924(c), 2113(a), and 2113(d). Lewis was never charged

under either federal or state law with any offense in con-

nection with the robbery because he was incarcerated when

the bank robbery occurred.

After Andrews filed a motion to suppress evidence of the

robbery and his videotaped confession and the court denied

that motion, the government disclosed certain Jencks Act

materials to the defense. See 18 U.S.C. § 3500. This was

how both Andrews and Lewis learned of Bolden’s role in the

investigation. On May 14, 2003, Andrews and Lewis separ-

ately brought pro se actions in state court against Bolden,

each seeking $2 million in damages from her individually,

under 42 U.S.C. § 1983, for disclosing their names and so-

cial security numbers to the Task Force. On June 6, 2003,

the government responded with a complaint in federal

district court seeking a temporary restraining order and a

protective order under 18 U.S.C. § 1514(a) and (b), that

would prohibit Andrews and Lewis from “harassing, intim-

idating, deposing or otherwise proceeding against Susan

Bolden [in the designated cases].”

In short order, the district court issued an ex parte tempo-

rary restraining order against Andrews and Lewis enjoining

them from proceeding in any way against Bolden in their

pending pro se actions “or in any other state or federal civil

proceeding relating to any events or transactions connected

with the case of United States of America v. Todd

Nos. 03-2734 & 03-3427 5

Andrews . . . for charges in relation to the November 28,

2001, armed robbery of the Midwest America Federal Credit

Union.” Immediately after a hearing held on June 12, 2003,

the court converted this into a protective order under

§ 1514(b) that was to last for three years from the date of

issuance; it entered judgment on that order on June 25,

2003, and Lewis’s appeal from that judgment was docketed

in this court on June 30, 2003, as appeal No. 03-2734.

In the meantime, Bolden removed both Lewis’s and

Andrews’s state court actions to the U.S. District Court

for the Northern District of Indiana. There she moved to

dismiss for failure to state a claim, arguing both that the

§ 1983 claim failed for lack of state action and that the

Right to Financial Privacy Act (RFPA), 12 U.S.C. § 3403(a),

which generally prohibits disclosure of financial records of

customers, did not reach her actions. The district court

granted her motion and entered judgment in her favor on

August 26, 2003, agreeing that there was no state action

and finding that she was immune under an exemption to

the RFPA, see 12 U.S.C. § 3403(c). Lewis’s appeal from that

judgment was docketed in this court on September 15, 2003,

as No. 03-3427. In a later order, we consolidated the two

appeals. (Andrews’s case dropped out along the way; we

therefore have no comment on it.)

II

For reasons that will become apparent later, we consider

first Lewis’s appeal from the judgment dismissing his civil

action against Bolden. We apply a de novo standard of re-

view to a district court’s grant of the motion to dismiss for

failure to state a claim under Rule 12(b)(6). Olson v.

Wexford Clearing Servs. Corp., 397 F.3d 488, 490 (7th Cir.

2005). The question before us is whether there is any set of

facts consistent with Lewis’s allegations that would give

rise to a right to relief. Hutchinson ex rel. Baker v. Spink,

6 Nos. 03-2734 & 03-3427

126 F.3d 895, 900 (7th Cir. 1997) (“It is enough if the com-

plaint puts the defendants on notice of the claim and that

some set of facts could be presented that would give rise to

a right to relief.”). Lewis now relies on the RFPA and state

law to support his complaint. He correctly notes that his

earlier references to § 1983 and the Fourth Amendment do

not prevent him from going forward, because it is well es-

tablished that litigants do not need to plead legal theories.

Like Lewis, we focus most of our attention on his RFPA

theory.

Lewis argues that the allegations of the complaint are

consistent with a finding that Bolden violated RFPA in two

ways: first, that she conducted her search at the direction

of law-enforcement officials and thus provided the govern-

ment with “access to” Lewis’s financial records in violation

of 12 U.S.C. § 3403(a); and second, she provided law-en-

forcement officials with Lewis’s name and social security

number, both of which she derived from his financial rec-

ords. The court assumed favorably to Lewis that Bolden had

done all of these things, but it then turned to § 3403(c),

which says:

Nothing in this title shall preclude any financial insti-

tution, or any officer, employee, or agent of a financial

institution, from notifying a Government authority that

such institution, or officer, employee or agent has

information which may be relevant to a possible viola-

tion of any statute or regulation. Such information may

include only the name or other identifying information

concerning any individual, corporation or account in-

volved in and the nature of any suspected illegal

activity.

We agree with the district court that this language shows

conclusively that Lewis has not stated a claim under RFPA.

Lewis’s only response is to urge that subsection (c) de-

scribes an affirmative defense, and that it was therefore

Nos. 03-2734 & 03-3427 7

premature for the district court to dismiss his claim on the

basis of the complaint. As an abstract proposition, that is

usually true because complaints do not have to anticipate

affirmative defenses to survive a motion to dismiss. Gomez

v. Toledo, 446 U.S. 635, 640 (1980). The exception occurs

where, as here, the allegations of the complaint itself set

forth everything necessary to satisfy the affirmative de-

fense, such as when a complaint plainly reveals that an ac-

tion is untimely under the governing statute of limitations.

Leavell v. Kieffer, 189 F.3d 492, 495 (7th Cir. 1999). Bolden

did only what § 3403(c) permitted her to do, even giving

Lewis every benefit of the doubt. We similarly see no chance

of saving this complaint under the state laws governing

disclosures by financial institutions without the consent

of the customer. As Bolden points out in her brief, the

immunity conferred by § 3403(c) covers not only liability

under federal law, but also liability under “any constitution,

law, or regulation of any State.”

We therefore affirm the judgment of the district court in

No. 03-3427, dismissing Lewis’s private civil action against

Bolden.

III

We have not yet had occasion to address the standard of

review for a protective order granted under 18 U.S.C.

§ 1514(b). Because these orders are in substance injunctions

against the defendant, we think that the same abuse of

discretion standard should apply to them that we normally

use in cases reviewing the issuance of preliminary injunc-

tions. Compare Brotherhood of Maint. of Way Employee v.

Unions Pac. R.R. Co., 358 F.3d 453, 457 (7th Cir. 2004)

(applying an abuse of discretion standard to a district

court’s grant of a preliminary injunction); Zurich Am. Ins.

Co. v. Superior Court for California, 326 F.3d 816, 824 (7th

8 Nos. 03-2734 & 03-3427

Cir. 2003) (applying an abuse of discretion standard to

review a district court’s order enjoining as state court

proceeding).

We are now ready to address Lewis’s appeal from the

judgment ordering him to refrain from harassing or other-

wise proceeding against Bolden in any court for matters

arising out of the Credit Union robbery. The court relied for

that order on the authority conferred in 18 U.S.C. § 1514,

which permits the government to apply for a temporary

restraining order or a protective order “prohibiting harass-

ment of a victim or witness in a Federal criminal case.”

§ 1514(a) (temporary restraining order), (b) (protective

order). The statute defines the term “harassment” to mean

“a course of conduct directed at a specific person that—(A)

causes substantial emotional distress in such person; and

(B) serves no legitimate purpose.” § 1514(c)(1). The term

“course of conduct” is defined as “a series of acts over a

period of time, however short, indicating a continuity of

purpose.” § 1514(c)(2).

The district court offered several reasons for its con-

clusion that a protective order for Bolden was warranted in

this case. First, it thought it likely that Lewis and Andrews

were seeking discovery in the civil case (which at the time

was still in the state court). It noted that the Eleventh

Circuit has held that filing a civil lawsuit to avoid restric-

tions on criminal discovery, “while at the same time

attempting to intimidate a witness,” is exactly the type of

harassment that § 1514 was designed to eliminate. See

United States v. Tison, 780 F.2d 1569, 1573 (11th Cir. 1986)

(finding a threatened state civil action for slander was a

“course of conduct” that met the definition of harassment

under § 1514). In addition, the court found that imposing on

Bolden the prospect of defending herself against claims

amounting to $4 million was really a veiled attempt to

discourage her participation in the government’s criminal

case. On a more subjective note, the court relied on an

Nos. 03-2734 & 03-3427 9

affidavit submitted by Agent Loran, in which he reported

that he had been in touch with Bolden since the filing of the

civil actions, and she told him that she felt threatened,

intimidated, harassed, outraged, and frightened. Finally,

the court summarized its conclusion as follows:

The concern about litigation against prospective wit-

nesses is particularly heightened where, as here, the

lawsuit on its face appears to be vexatious because,

among other things, there may not be state action as

required under § 1983, the Fourth Amendment does not

apply to private actions, and federal banking law allows

for certain disclosures without liability attaching.

Though the validity of the claims asserted in the state

actions are matters which ultimately will have to be

decided by the Allen Circuit Court, it appears that the

filing of the state court actions was not done for a

legitimate purpose (such as to vindicate a specific right)

but more likely than not was a tactical decision to inti-

midate and harass prospective witness Bolden. This is

something which this Court cannot countenance and for

which section 1514 provides a remedy in the form of a

protective order.

Lewis has argued on appeal that his conduct of filing the

civil action could not, as a matter of law, constitute harass-

ment for purposes of § 1514, because the act of filing a

lawsuit does not constitute a “course of conduct” as § 1514

defines that term; that he brought his suit in good faith;

that the suit served a legitimate purpose, namely, asserting

alleged rights under the Fourth Amendment and RFPA;

that his lawsuit is protected under the “safe harbor” pro-

vision of § 1515(c); and that the simple act of filing a law-

suit is incapable of causing substantial emotional distress.

In addition, he argues that the district court was wrong to

conclude that he filed his civil action in order to circumvent

the Federal Rules of Criminal Procedure. The government

responds that Lewis has waived his arguments about

10 Nos. 03-2734 & 03-3427

“course of conduct”, the “safe harbor” provision of § 1515(c),

and the circumvention of the criminal rules. We do not read

the record so narrowly. Lewis’s pro se filings in opposition

to the protective order set forth the substance of the argu-

ments he is now pressing, and so we are not prevented from

reaching the merits by any waiver. This is especially ap-

propriate because Lewis never received any notice alerting

him to the need to file a proper response to the govern-

ment’s motion. Compare Lewis v. Faulkner, 680 F.2d 100,

102 (7th Cir. 1982).

Another potential obstacle, however, arose during oral ar-

gument: has Lewis’s challenge to the protective order

become moot as a result of the conviction of Andrews in the

underlying criminal case or as a result of the district court’s

decision to dismiss his civil action under Rule 12(b)(6),

which we have concluded was correct. We think not. First,

the fact that Andrews has now been convicted in no way

protects Bolden from further harassment by Lewis. Nothing

in § 1514 indicates that Congress meant to terminate

protection as of the time the trial was over. The person for

whose benefit the protective order is entered must simply

be “a victim or witness in a Federal criminal case,” as

Bolden was. The only aspect of the case that Andrews’s

conviction affects is the possibility of abusing the discovery

process. That, however, was not the central reason why the

district court issued the order. Because that particular

reason has now disappeared, we disregard it in our evalu-

ation of the order.

What should we do about the fact that the civil suit that

was the vehicle for the harassment has now definitively

been terminated in Bolden’s favor? The protective order was

to last for three years, but it is likely that any other civil

action Lewis might try to bring based on the events relating

to the bank robbery would be barred by claim preclusion.

Perry v. Globe Auto Recycling, Inc., 227 F.3d 950, 952 (7th

Cir. 2000) (applying federal claim preclusion inquiry into

Nos. 03-2734 & 03-3427 11

the “identity of claims, identity of parties, and a prior final

judgment on the merits,” also known as the transactional

test). Nevertheless, as we know from extensive experience

in this court, the fact that a litigant is likely to lose a case

does not mean that he will not file something. From time to

time, we must even resort to monetary sanctions or filing

bars to restrain abusive litigants. See Support Sys. Int’l v.

Mack, 45 F.3d 185, 186 (7th Cir. 1995) (ordering the clerk of

the court to return any papers the defendant attempted to

file in all civil actions until he paid the sanctions entered

against him for his numerous frivolous and fraudulent

filings); Alexander v. United States, 121 F.3d 312, 315 (7th

Cir. 1997) (entering a modified Mack order to address a

prisoner’s repeated filing of civil actions and successive

collateral attacks that automatically denied the later type

of filings on the 30th day of the month unless otherwise

instructed by the court). We are not suggesting that Lewis’s

single case was enough by itself to warrant a Mack or

Alexander order; our only point is that the termination of

his pending civil action against Bolden does not render the

protective order moot.

In arguing that his lawsuit serves a legitimate purpose,

Lewis relies on the “safe harbor” provision of 18 U.S.C.

§ 1515(c), which provides that nothing in the Act “pro-

hibit[s] or punish[es] the providing of lawful, bona fide,

legal representation services in connection with or anticipa-

tion of an official proceeding.” Section 1515(c), however, is

primarily concerned with protecting defendants from

protective orders that would constrain investigation and

preparation for their defense in criminal cases or other “offi-

cial” proceedings. There is nothing “official” about Lewis’s

action, and thus it does not qualify for the exemption

recognized by § 1515(c). Even if we were wrong about that,

we have already noted that Bolden’s disclosures were

permitted by the statute. The exclusion from the statutory

prohibition that § 1515(c) describes thus has no application

to Lewis’s case.

12 Nos. 03-2734 & 03-3427

Lewis argues on the merits that lawsuits are not the kind

of thing that can constitute “harassment” for purposes of

§ 1514. But there is nothing in the statute that says this,

and we see no reason to come to such a conclusion. Indeed,

this strikes us as a situation rather like the one that the

Supreme Court faced in Vendo Co. v. Lektro-Vend Corp.,

433 U.S. 623 (1977), in which the question was whether one

lengthy state court proceeding could amount to an anti-

competitive practice, because it was brought solely to

harass the target company unlawfully and to eliminate

competition. In Vendo, the situation was complicated by the

fact that the Anti-Injunction Act, 28 U.S.C. § 2283, prohib-

its most injunctions against on going state-court proceed-

ings. In the end, however, a majority of the Court agreed

that in principle, one or more state court proceedings could

be the kind of anticompetitive practice that the antitrust

laws are designed to prevent. See 433 U.S. at 644 n.*

(calling for “a pattern of baseless, repetitive claims or some

equivalent showing of grave abuse of the state courts”)

(opinion of Blackmun, J.); id. at 652-53 (opinion of

Stevens, J.). If lawsuits, whether in state or federal court,

can be a form of harassment for the antitrust laws, we see

no reason why they cannot also be a form of harassment for

the Victim Witness and Protection Act, 18 U.S.C. § 1514(c).

Although there might have been some question about

the Anti-Injunction Act when the district court initially

entered its temporary restraining order and the protective

order, that concern evaporated when Lewis’s state court

action was removed to the federal court. (We add that it is

by no means clear that the Anti-Injunction Act would have

prohibited this order. Despite the language of the statute,

the “expressly authorized” exceptions need not be spelled

out, see Mitchum v. Foster, 407 U.S. 225, 237 (1972). In-

stead, the Act of Congress purportedly authorizing the in-

junction must create “a specific and uniquely federal right

or remedy, enforceable in a federal court of equity, that

Nos. 03-2734 & 03-3427 13

could be frustrated if the federal court were not empowered

to enjoin a state court proceeding.” Id. at 237-38. Section

1514 may well satisfy that test.) Once the action was in

federal court and Lewis was squarely within that court’s

personal jurisdiction, it had all the power it needed to

enjoin him from engaging in abusive litigation techniques.

It also had the power to order him to refrain from a particu-

lar course of future litigation in any court, federal or state.

Such an order by definition could not interfere with any

pending state court action, which is all that the Anti-

Injunction Act addresses.

The only question remaining is whether the district court

abused its discretion in entering the order against Lewis on

these facts. The district court relied heavily on Tison, as we

noted earlier, in which the Eleventh Circuit held that a civil

defamation suit constituted harassment under § 1514 and

granted the government’s motion for a protective order

enjoining the state court proceeding. There, the court’s

primary reason for its holding was based on its finding that

the timing of Tison’s defamation suit indicated that his

purpose was not legitimate. It appeared that Tison was

trying to circumvent the criminal discovery rules for his

own criminal prosecution. Tison is not a perfect match with

Lewis’s case, but it does represent the conclusion of a sister

circuit that some lawsuits may be within the scope of

§ 1514. See also States v. Stewart, 872 F.2d 957, 962-63

(10th Cir. 1989) (stating that a protective order that di-

rected the defendant to cease taking discovery in his civil

case under § 1514 is consistent with a district court’s

authority under Rule 16(b) to prohibit attempts to avoid

limitations of criminal discovery rules).

While we might have preferred a more thorough explora-

tion of the equities of Lewis’s case, the district court said

enough to allow us to follow its thinking. The court also

skirted the limits with respect to its abbreviated handling

of the evidence. Instead of hearing directly from Agent

14 Nos. 03-2734 & 03-3427

Loran and Bolden, for example, it relied almost exclusively

on Agent Loran’s affidavit for such critical findings as

Bolden’s substantial emotional distress. This is especially

troubling given the requirement in § 1514(b)(2) for the

defendant to have the opportunity to cross-examine wit-

nesses. Compare United States v. Carmichael, 326

F. Supp. 2d 1267 (M.D. Ala. 2004). In Carmichael, the

district court conducted two evidentiary hearings in con-

nection with the government’s motion for a protective order

requiring a defendant to take down a website soliciting

information on his criminal case, including information

about the government’s witnesses. In doing so, the court

heard testimony from the DEA agents on the case and two

of the witnesses testified regarding their fears due to the

website, ultimately concluding the government failed to

meet its burden that the protective order was warranted.

Id. at 1275-76, 1301.

Perhaps this would justify reversal, if it were not for

several additional considerations. First, the protective order

was limited to a three-year period, almost two years of

which have already run; if Lewis wants relief from it, he

can always return to the district court and move under FED.

R. CIV. P. 60(b) for modification. Second, we learned at oral

argument that the district court was correct to be concerned

that Lewis was not likely to abandon his efforts to obtain

redress here. We were told at oral argument that he has

filed a new action, and our check of the records of the Allen

County Circuit Court reveals that he indeed filed a new

civil action for damages against Midwest Federal Credit

Union. See Docket No. 02-C01-0309PL-114 (filed Sept. 22,

2003). This action, while not against Bolden, illustrates why

some risk of harassing litigation remains for the period

covered by the protective order. We are satisfied that the

district court did not abuse its discretion in entering the

order.

Nos. 03-2734 & 03-3427 15

IV

We conclude, therefore, that the district court was

authorized to enter a protective order enjoining Lewis from

pursuing or instituting any new litigation against Bolden.

As the victim of a credit union robbery who was only trying

to help the police in a manner expressly authorized by law,

Bolden is entitled to protection from lawsuits demanding

millions of dollars from her personally that are based on her

assistance to the authorities—lawsuits that require her to

hire a lawyer and to expend significant resources in her

defense. We also affirm the district court’s judgment in

Lewis’s civil action.

AFFIRMED.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—6-15-05