# Petition — Briggs v. Goodwin > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0786%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1984 - **Citation:** 464 U.S. 1040 ## Text a Office-Supreme Court, U.S. FILED $5008 Ocroser Term, 1983 JOHN BRIGGS, et al., Petitioners, v. GUY GOODWIN, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT Morton Stavis Counsel of Record Rosert BorHmM c/o Center for Constitutional Rights 853 Broadway New York, New York 10003 Puiu J. HirscHoKop 108 North Columbus Street P.O. Box 1226 Alexandria, Virginia 22313 CaMERON CUNNINGHAM 2369 University Avenue East Palo Alto, California 94303 Brapy CoLeEMAN 617 Banco Street Austin, Texas 78703 Jack LEVINE 1425 Walnut Street Philadelphia, Pennsylvania 19102 Attorneys for Petitioners a PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT Petitioners petition for a writ of certiorari to review the judgment of the Court of Appeals for the District of Columbia Circuit in this case. QUESTIONS PRESENTED Whether this Court's decision in Briscoe v. LaHue, 1 i » 209: 382 1108 (1983), holding that 42 U.S.C. §1983 does not authorize suit against a police officer for false testimony in a criminal trial, means that: a) Where a government attorney has placed an informer with grand jury wit- nesses and their counsel, some of the witnesses being targets, and where the informer continues in association with some of such witnesses, sometimes in meetings with their attorneys, after they have been indicted, and where the informer aie reports defense strategy to the government and the government attorney takes no effective action to stop the conduct of the informer placed by him in the defense camp, the government attorney somehow acquires immunity from a claimed violation of Sixth Amendment rights because at one point he was called to the witness stand and falsely advised the court that he had not placed an informer in the defense camp? b) A government attorney, a defen- dant in a Bivens suit based on a claim that Sixth Amendment rights had been violated by his having given false advice to a court and a group of grand jury targets that he had not placed informers among them, may claim "witness immunity" with respect to such advice? LIST OF ALL PARTIES Petitioners: John Briggs o2e Scott Camil Peter P. Mahoney Stanley K. Michelson Jonn Kniffin William Patterson Alton Foss Donald Perdue Robert Wayne Beverly Jack Jennings Bruce Hortcn John Chambers Respondent: Guy Goodwin TABLE OF CONTENTS Ae) © Q 02) CRESTOR PEO Oen tls 6664s w cabs Ree es ESSE. OE ALL PRCEALSR sc veces eecescesus TALE OF. MACHOL SCLOG. sc ccctccesb agers Opinions Below... .cccccccccccccvecese PUMSOGIMCLON sé cb bSechecetcceesaun se eeure Constitutional ProviSioOnsS...wcccccees Statement Of the CaSO. cccdsescovser Reasons for Granting the Writ....... CONE LUNZOR 6.0 60ce os ce eeeceteseeed cobs & © U1 U1 UI & W RD Pb Wwe TABLE OF AUTHORITIES Cases: Briggs v. Goodwin, 569 F.2d 10, cert. den. 437 U.S. 904 CLP TUR bebe s.6 Saas ed ow dnd 0 éble eho dopeoeer Briggs v. Goodwin, 712 F.2d 1444 sth tes, aes ke eeb ob ee es Wa eee 4 Briscoe v. LaHue, U.8. _, 103 S.Ct. 1108 (1983)..1,14 et passim Gregoire v. Biddle, 177 F.2d 579, Ceres GON, Bae UsSs B49. cécccssice Be Imbler v. Pachtman, 424 U.S. 409 [AVIRP ctor ove deocepeceebseeeeseouaneeen In Re Murchison, 349 U.S. 133 CEPOU) ve vebbeee ee keeee ce eeeee ee ot.a. Offutt v. United States, 348 U.S. BA ALSO OD Cawescrertdesccesions eeus on 34 Pierson v. Ray, 386 U.S. 547 (1967) cocecvece Treen rcKe eer eae on ae Regents of the Univ. of California. v. Bakke, 438 U.S. 265 (1978)..... 34 Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980)..... 34 Weatherford v. Bursey, 429 U.S. 545 (1977) wcccccsccccees er ere ee a ee Constitution and statutes United States Constitution: Sixth Amendment.....ccece 1,5 et passin BE UataGes GLASO Uh) co wow ewes ene tes Bas We ate Bae tees kc ec bheetewscbeeeess ee OPINIONS BELOW The opinion of the Court of Appeals dated July 8, 1983, from which this petition is filed, is reported at 712 F.2d 1444 (D.C. Cir. 1983) (see Appendix A, infra, la et seg.). ‘The prior opinion of the Court of Appeals dated January 11, 1983, is reported at 698 F.2d 486 (Appen- dix B, infra, 14a et seg.). The opinion and order of the district court dated September 19, 1980 (Appendix C, infra, 36a) are not reported. a ae JURISDICTION The judgment of the Court of Appeals was rendered on July 8, 1983. The juris- diction of this Court is invoked under 28 U.S.C. §1254(1). CONSTITUTIONAL PROVISIONS INVOLVED The Sixth Amendment to the United States Constitution provides: In all criminal prosecutions, the accused shall ... have the assistance of counsel for his defence. STATEMENT OF THE CASE? On July 7, 1972, a grand jury in Tallahasee, Florida, subpoenaed petition- ers to testify concerning their activities in connection with the Vietnam Veterans Against the War (VVAW). The subpoenas were returnable three days later on July luarge parts of this statement are drawn verbatim from the opinion of the Court of Appeals dated January 1l, 1983, reported at 698 F.2d 486. Appendix B, infra, 16a et seg. 10, 1972. Pranz left Florida prior to the grand jury proceedings, and it is not contended that he participated in the alleged conspiracy. -37a- jury, and an indictment was returned on July 13, 1972. Several months later a superceding indictment was returned by another grand jury when new evidence indicated that Plaintiffs Briggs and Michaelson were involved in the criminal activity that was the subject of the July 13 indictment. Prior to his trip to Florida, Goodwin gave instructions.to the FBI that were designed to protect Plaintiffs' Sixth Amendment rights. He told Claude Meadow (the FBI agent who was Poe's sole contact) to inform Poe that he should refrain from involving himself with the planning of any defense strategy, and, should he overhear such strategy being discussed, Poe was not to relay the information to the FBI. Meadow issued Goodwin's instructions to Poe, and informed Goodwin that Poe would comply with them. Goodwin had no direct contact with Poe. -38a- Because Plaintiffs were hastily subpoenaed, they were represented by common counsel at the grand jury proceed- ings. Many Plaintiffs met each other for the first time as a result of those proceedings. They were therefore con- cerned that there might be an informer in their midst who would be privy to defense strategy. This fear was accentuated because Plaintiffs were represented by common ca.nsel and defense strategy was, in many instances, jointly. planned. Emerson Poe signed two documents, both undated, authorizing VVAW's defense attorneys to represent him in a limited manner. The first document authorized representation in proceedings which sought to delay the grand jury until counsel could be retained. VVAW's Motion for Stay was denied on July ll, 1972. The second document authorized representation in matters of "affirmative action" until Poe -39a- could retain his own counsel. According to Poe, he signed the first document on or about July 8, 1972, and signed the second document after he was dismissed by the grand jury on July 13, 1972. There is no evidence to the contrary. On July 12, 1972, the District Court for the Northern District of Florida heard argument from Plaintiffs about their entitlement to certain information, including the existence vel non of any evidence that informants of the government were among those witnesses who were represented by counsel at the grand jury. The July 12th hearing was marked by confusion as to what witnesses VVAW's counsel were representing for grand jury purposes. Prior to July 12, 1972, the government had not been presented with a list of witnesses who were so represented. At the July 12th hearing, defense counsel stated, after Emerson Poe's name was -40a- mentioned, that "... I have just been informed that Mr. Poe, who I believe Originally was not represented by coun- sel..." and was then interrupted by another defense counsel, who stated "(j]ust for the Sixth Amendment motion that Your Honor ruled on the other day..." While this discussion is a bit confused, it supports Poe's assertion that prior to July 14th he was represented by counsel only for the motion to stay the grand jury proceedings. On July 13, 1972, this colloquy occurred under oath: The Court: Mr. Goodwin, are any of the witnesses represented by counsel | agents or informants of the United States of America? The Witness: No, Your Honor. The Court: You can step down. The Court's statement "witnesses repre- sented by counsel" refers to witnesses identified by defense counsel on July -4la- l2th. It is Defendant's negative as- sertion to the Court's question that has given rise to the instant litigation. Plaintiffs contend that Defendant knew or should have known that Emerson Poe was represented by their counsel and therefore knew or should have known that their Sixth Amendment rights were being violated. Defendant contends in his Motion for Summary Judgment that (1) he is entitled to absolute prosecutorial immunity, or (2) assuming arguendo he is not so entitled, qualified prosecutorial immunity precludes further prosecution of this litigation. It is clear that a prosecutor enjoys absolute immunity when his activities are * quasi-judicial in nature. Butz v. Economu, 438 U.S. 478, 516 (1978); Imbler v. Pachtman, 424 U.S. 409, 431 (1976). When a prosecutor transcends his role as an advocate, and instead performs investigatory activities, his immunity -42a- from suit is qualified, rather than absolute. Briggs v. Goodwin, 569 F.2d 10, 16 (D.C. Cir. 1977). In the instant case, Plaintiffs allege that Goodwin violated their Sixth Amendment rights by planting an informer in their midst and perjuring himself. To ascertain whether Defendant is entitled to absolute or qualified immunity, the Court must scrutinize what type of activity he was engaging in when he performed the facts that form the basis of Plaintiffs' complaint. Poe was subpoenaed in order to preserve his role as an informer. Goodwin's response was likewise designed so that Poe could maintain that role. Goodwin desired to preserve Poe's position in order to facilitate the investigation of the VVAW. Defendant's assertion that he was acting in a quasi-judicial manner within the meaning of Imbler v. Pachtman, -43a- supra, is therefore misplaced. Defendant is not entitled to absolute immunity. As the Court of Appeals noted in Briagas v. Goodwin, Defendant is entitled to a qualified immunity. If Goodwin shows that “he entertained a good-faith, reason- able belief in the truth of his response to the federal district judge in Florida," id., at 16, then he is immune from liabil- ity. The facts, as developed by discovery and the extensive record before the Court, establish that Goodwin in fact believed in the veracity of his statement. First, the deposition testimony of Goodwin, Meadow, and others connected with the grand jury investigation reveals that Defendant issued strict instructions to Poe designed to preclude Poe's participa- tion in the common defense. Second, it is clear from the deposition testimony that Goodwin believed Poe was heeding those instructions. Third, Poe believed and -44a- still believes that he in fact followed Goodwin's instructions, and he therefore did not inform Goodwin to the contrary. Fourth, the evidence supporting Plain- tiffs' assertion that Poe was cognizant of some defense strategy also indicates that Goodwin was not privy to this information when he made his assertion to Judge Middlebrooks. Finally, the assertions of defense counsel on July 12th indicating that Poe was not being represented sup- ported Goodwin's belief that Poe was in fact not represented by counsel. It is clear that Goodwin did not perjure himself on July 13, 1972. The only remaining issue before the Court is whether summary judgment is appropriate in the instant action. As the Supreme Court noted in Butz v. Economu, supra, at 508, {[D]amages suits concerning constitu- tional violations need not proceed at trial, but can be terminated -45a- on a properly supported motion for summary judgment based on the defense of*immunity... In responding to such a motion plaintiffs may not play dog in the manger; and firm application of the Federal Rules of Civil Procedure will ensure that federal officials are not harassed by frivolous lawsuits. Because Defendant has proved that he entertained a good-faith, reasonable belief in the truth of his statement, he is entitled to summary judgment. Butz v. Economu, supra; Briggs v. Goodwin, supra. An appropriate Order follows this Memoran- dum Opinion. Aubrey E. Robinson, Jr. United States District Judge Date: September 19, 1980. ORDER Upon consideration of Defendant's Motion for Summary Judgment, Plaintiffs' Opposition thereto, the entire record -46a- therein, and the Memorandum Opinion issued by the Court this date, it is by the Court this 19th day of September, 1980, ORDERED, that Defendant's Motion for Summary Judgment, be and hereby is, GRANTED. Aubrey E. Robinson, Jr. United States District Judge -47a- --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0786%3A1. Public record. Not legal advice.